Divorcing an untraceable partner

What does it mean if your partner is untraceable?

A partner is legally untraceable if their place of residence or stay is unknown and cannot be ascertained through reasonable efforts. If the address is completely unknown, the Code of Civil Procedure prescribes public service: the Public Prosecutor’s Office serves the petition, followed by publication in the Government Gazette. The only ground for divorce under Dutch law is the irretrievable breakdown of the marriage. As the petitioner, you do not need to prove this; the court generally assumes this to be the case if you state that the marriage has irretrievably broken down.

The same procedure applies to a registered partnership. If you and your partner have entered into a registered partnership and one of you is untraceable, you can request the termination of the partnership through a similar judicial procedure.

Untraceability is not the same as unwillingness. The determining factor is that there is no known address where your partner can be officially reached. If an address is known but your partner does not respond, different procedural rules apply.

Which court has jurisdiction and which law applies?

The jurisdiction of the Dutch court in an international divorce is primarily determined by Brussels II-ter (Regulation 2019/1111). Based on this, the Dutch court is generally competent if you are habitually resident in the Netherlands, regardless of your partner’s nationality or place of residence. If you both habitually reside abroad, the matter becomes more complex.

Which law applies to the divorce itself is a separate question. Under the Rome III Regulation, parties can choose which law applies within certain limits. If they have not made a choice, the Regulation determines this based on the habitual residence and nationality of both spouses. In most cases where you live in the Netherlands, Dutch law will apply.

A practical point of attention is the prevention of parallel proceedings. If your partner also starts divorce proceedings abroad, this can lead to complications regarding which procedure takes precedence and which decree is recognized. Early legal advice helps prevent duplicate proceedings.

If your partner lives outside the EU, the Dutch court assesses its jurisdiction based on national private international law. Depending on your nationality and the duration of your stay in the Netherlands, the Dutch court may still have jurisdiction.

How does the procedure work with an untraceable partner?

The procedure for an untraceable partner differs from a regular divorce. The following steps apply in most cases:

1. You file a unilateral petition for divorce with the competent Dutch court through a lawyer. Filing is not possible without a lawyer.
2. The court registry places the petition in the hands of the bailiff or the Public Prosecutor’s Office for service to your partner.
3. If your partner’s address is completely unknown, public service takes place. The Public Prosecutor’s Office serves the petition, followed by publication in the Government Gazette.
4. If your partner demonstrably lives in an EU country, service takes place via the EU Service Regulation. If your partner lives outside the EU, a treaty-based or diplomatic route applies.
5. After the statutory period has expired, the court sets a hearing date. Your partner will be summoned, even if no response is expected.
6. The court grants the divorce by decree. The decree is then registered in the civil status records and the personal records database. The divorce is only official after registration.

If there are minor children, you must also address custody, the children’s place of residence, and child maintenance in the petition. The court can also grant provisional measures for the duration of the proceedings.

What are the possible situations?

Your partner lives in the Netherlands but is untraceable

If your partner’s last known place of residence was in the Netherlands but they can no longer be traced, public service takes place. The Public Prosecutor’s Office acts as the serving authority and the petition is published in the Government Gazette. You can also attempt to trace your partner through the personal records database; your lawyer can advise you on this.

Your partner lives in an EU country

If your partner’s address in an EU member state is known, the EU Service Regulation (as of 2022: Regulation 2020/1784) applies. Service then takes place via the designated receiving agency in the country concerned. If the address in the EU country is unknown, public service may still take place in certain cases, depending on the circumstances and the national procedural law of that country.

Your partner lives outside the EU

If your partner resides in a country outside the EU, the service route depends on the country. The Netherlands has concluded treaties with various countries under which service can take place via the central authority of that country. For countries without a treaty, service takes place via diplomatic channels. If a partner is completely untraceable and no address outside the EU is known, public service can take place.

Recognition of the divorce abroad

A Dutch divorce decree is not automatically recognized in every country. Within the EU, under Brussels II-ter, decrees are in principle recognized without a separate recognition procedure. Outside the EU, recognition depends on the country and the rules applicable there.

If your partner lives abroad and you want the divorce to have legal effect there as well, it is advisable to investigate this beforehand. In some countries, a separate recognition procedure is required. This can also have consequences for remarriage or changing your marital status abroad.

Consequences for residence permits

If your partner has a residence permit linked to your marriage, a divorce may have consequences for that residency status. The IND (Immigration and Naturalisation Service) must be informed of a divorce in certain cases. Whether this applies depends on the type of permit and the specific situation.

Simmelink Lawyers advises on family law aspects. For consequences regarding residency rights, we refer you to a specialized lawyer. Would you like to know more about the family law side?

Schedule a consultation.

Based on Real Cases

In one case, we assisted a Client with a divorce where the partner had lived abroad for years and no longer maintained contact. No current address was known. By carefully mapping out the situation, it was established that the Netherlands had jurisdiction, and a procedure could be started via the public service route. In another case, the question arose whether the decree would also be recognized in the partner’s country of residence. By investigating this beforehand, the procedure could be aligned with the recognition requirements of that country, preventing unnecessary delays.

Content verified by the team at Simmelink Lawyers, specialized in international family law.

Trust and quality

Simmelink Lawyers is affiliated with the Dutch Bar Association.
Read more about our reviews or see how we work via our working method.