1. Matrimonial property relations in Netherlands private international law have, as far as I am aware, up to now not yet been made subject of comment in the judicial decisions section of this Review. The three above judgements, therefore, provide a useful opportunity to make some observations in connection with this field of law which, apparently, has produced only a relastively small number of (published) court cases in this country: comp. Van Hasselt, c.s., Nederlandse Rechtspraak I.P.R., p. 28–30Google Scholar; suppl. I, p. 21; suppl. II, p. 16/17; comp. also Kollewijn who, over the last ten years, has dug up no more than eight decisions, vide: Tien Jaren Nederlandse Rechtspraak I.P.R. (a recent publication reproducing all of the author's case law comments in W.P.N.R.), p. 56 seqq.; and who, by the way, — perhaps on account of the fact that the problems involved would seem to lack practical importance? — has refrained from including the subject in his American-Dutch P.I.L. (see 2nd ed., 1961)Google Scholar notwithstanding the fact that the American-Dutch decision: District Court Roermond, February 8, 1934, W. 12813, N.J. 1934, p. 824Google Scholar, concerning the matrimonial property relations of a U.S.A.-citizen of Wisconsin who had married a Netherlands woman in the Netherlands, might well have incited him not to do so.

2. Netherlands p.i.l. in the field under discussion, then, is still dominated by the Supreme Court judgements of January 6, 1911 (W. 9125) and of May 17, 1929 (N.J. 1929, p. 1279Google Scholar, Note by Meijers).

Firstly it was decided in both cases, that the famosissima quaestio which had held divided the equally famous lawyers, judge d'Argentré and Dumoulin who at least at the time of his—again famous—Consilium 53 to the heirs Ganey (cf. Gamillscheg, , Der Einfluss Dumoulins auf die Entwicklung des Kollisionsrecht, p. 42Google Scholar, see note 2; cf. also Berr, making the same error as is referred to in the said note, Clunet 1965, p. 310Google Scholar) was a member of the Parisean Bar, should be solved: at the expense of the statutum reale; a solution which, as was argued, had its roots in legal history: Pothier's Traité de la Communauté, article préliminaire, No. 12, and Joh. Voet's Comm. ad Pandectas, Lib. I, tit. 4, pars 2, No. 19 (comp. Kosters, , W.P.N.R. 2892, p. 367, 2nd colGoogle Scholar), though it is striking that no reference is made to the opinion of Dumoulin. It is stated in the 1929 case, even more explicitly than in that of 1911, that the law pertaining to matrimonial property relations, whether regarding movable or immovable property, constitutes in its entirety a part of the statutum personale, so that … “pursuant to the articles 6 and 9 A.B. (i.e. the Act containing General Provisions on Legislation of the Kingdom, Stb. 1829, No. 28), as considered in their context and in the light of their mutual relationship, the matrimonial property situation of the spouses, in the absence of matrimonial property stipulations, is governed by the spouses' national law …”.

Secondly, it is stated in 1929, though not in 1911,—be it without any supporting argument—that “… in the field under discussion no influence shall be attributed to the parties' tacit volition”, a ruling which means a deviation from the system surviving in France and on which in a marked historical buoyance our Courts, in these decisions, had otherwise so heavily leant.

There it is: our subject comes under “personal status”; there is no distinction as between movable and immovable property; nor is there any place for autonomy of the parties. (The view that Dumoulin was the father of the theory of party autonomy in the field of international contract law, has decisively been refuted by Gamillscheg, , o.c., p. 110seqq., notably 114–121Google Scholar, and, before him, but in less detail, by Van der Ploeg, , W.P.N.R. 4243, p. 230Google Scholar, 1st col.; comp. authors referred to by Gamillscheg, , p. 111, note 1Google Scholar, and by Van der Ploeg, l.c., note 9)

3. Meijers, in his note to the 1929 decision, observed that the ruling laid down by it may be looked upon as a guiding principle for the practitioner for quite a few years to come; and so it proved, going by the (relative) lack of case law, by the consistency of the few cases available—see Van Hasselt o.c., together with the justified remark by Blackstone (Paper submitted to the Netherlands Law Association in 1947, Handelingen N.J.V. 1947, I, p. 63Google Scholar; in the same vein, Van der Ploeg, , Les Régimes Matrimoniaux et les Successions en droit international privé, p. 891/2 note 4 and p. 991, note 1Google Scholar), to the effect that where the law of the husband was applied in the cases referred to, the wife in question had, pursuant to her marriage, acquired the husband's nationality; see also cases referred to by Kosters-Dubbink, , Nederlands Intemationaal Privaatrecht, 1962, p. 618, note 194Google Scholar—and by the even fewer exceptions: Pres. of the District Court Amsterdam, 04 7, 1919Google Scholar, applying the law of the domicile; District Court the Hague, 01 27, 1925, W. 11526Google Scholar, N.J. 1927, p. 1298Google Scholar, and District Court Rotterdam, 01 27 and 05 12, 1930Google Scholar, W. 12373 (reversed by the Court of Appeal the Hague, W. 12373 and N.J. 1931, p. 747Google Scholar) as well as District Court Roermond, already mentioned supra, sub 1 (Van Hasselt, c.s., o.c. p. 28Google Scholar, bring the decision under the wrong heading) where the parties' volition is adduced (cf. Van Brakel, , Grondslagen, 3rd ed., p. 182, note 4Google Scholar); whereas, finally, in the exceptional so-called Chinese cases—in summary jurisdiction—the parties' volition, along with other arguments, provided the Courts with a means of manoeuvring away from the Supreme Court's ruling, such in view of the hardships which, for one of the parties, would in concreto ensue from strict compliance with it: District Court the Hague, 11 19, 1927Google Scholar, N.J. 1928, p. 1307Google Scholar, affirmed by the Court of Appeal the Hague, March 5, 1928, W. 11849, N.J. 1930, p. 100Google Scholar; District Court Amsterdam, 12 24, 1929Google Scholar, W. 12090, N.J. 1930, 1153Google Scholar, affirmed by the Court of Appeal Amsterdam, 04 8, 1930Google Scholar, W. 12190, N.J. 1931, p. 177Google Scholar; vide in connection with these cases—and with the case law concerning matrimonial property in general—Offerhaus, , in Rechtsgeleerde Opstellen … aangeboden aan Prof. Mr. Paul Scholten (1932), p. 344seqq., notably p. 349–351.Google Scholar

4. As to legal authors in this field, reference may be made to Kosters, , Internationaal Burgerlijk Recht in Nederland (1917), p. 440seqq.Google Scholar, who, writing during the period which elapsed between the two abovementioned decisions by the Supreme Court, declares the law of the husband to be applicable, adding (p. 441 and 443) that this is the law which pursuant to the marriage is shared by the wife: where matrimonial property relations only become operative after celebration of the marriage, the wife's antenuptial nationality is irrelevant. Vide also Baak, Meijers' pupil, De rechtsgevolgen van het huwelijk in het intemationaal privaatrecht, p. 72–74Google Scholar, writing in 1928 and thus before the conclusive 1929 decision was rendered, and being of the same opinion as Kosters who also was one of the Supreme Court judges sitting on the case. In the same spirit are artt. 2 and 5 of the Hague Convention of 1905 on the effects of international marriages, ratified in the Netherlands by the Act of July 15, 1907, Stb. 1907, No. 198. Comp. further, Hijmans, , Colleges, mentioned infra, sub 9, p. 35/36Google Scholar; Mulder, , Intemationaal Privaatrecht, 2nd ed. 1947, p. 113Google Scholar without much supporting argument, and Sauveplanne, , Elementair I.P.R., 1965, p. 27.Google Scholar

It is a remarkable feature of Netherlands legal literature that, although the 1929 decision clearly and explicitly declares the national law of the spouses to be applicable, some authors nevertheless use this decision to justify the view that the law of the husband must be applied: see e.g. Kisch, , Een en ander over internationaal huwelijksvermogensrecht (published by the International Juridical Institute, The Hague, 1952), p. 26Google Scholar; Van Brakel, , o.c., p. 182Google Scholar, note 5, where he directly connects our decision and art. 5 of the abovementioned Hague Convention; Offerhaus, , o.c., p. 346/7Google Scholar. Van der Ploeg, who has emphatically pointed to the wording of the decision, first in W.P.N.R. 4243, p. 232Google Scholar, 2nd. col, as well as, later, in his contribution to Régimes matrimoniaux, p. 889 and p. 988Google Scholar, is referred to by Kosters-Dubbink, , p. 618, note 194Google Scholar—the authors themselves give a correct rendering of the decision—as providing a deviating construction of the same: but one must stress that the decision by the Supreme Court of May 17, 1929 has not dealt with, and, therefore, has not ruled with an eye to the case where spouses are of different nationalities; the problem in connection with that contingency remained unsolved. The only deviation that could perhaps be imputed to Van der Ploeg is a deviation from previous incorrect interpretation; and that is by no means the worst of incriminations.

5. National law, then, applies; more specifically: the law of the husband applies. If spouses share the same nationality—as was usually the case in the past, and which was fundamental to the relevant Hague Convention—, this will be the national law of the couple; if they do not—a situation which at the present time is encountered increasingly frequently—the husband's law will at all events be the law of the partner who is usually considered as the head of the family. Such is said to have been the predominating opinion in the Netherlands both before and after the last war: see the answers, given via the Netherlands Foreign Office, to the questionnaire drawn up by the Fédération Internationale des Femmes Magistrats et Avocats in behalf of its congresses at Napels (1934) and Vienna (1936), and sent out by the French Ministère des Affaires Etrangères: vide MrsKraemer-Bach, and MissRenson, , Le Régime Matrimonial des Epoux dont la Nationalité est Différente (1939)Google Scholar, annexe, sub voce: Pays-Bas (where two disturbing misprints appear to have slipped in: (1) the Netherlands were—and are—a party to the Hague Convention, and (2) matrimonial property stipulations could, at the time, not be altered during marriage), and see artt. 4 and 5, section 1, of the Uniform P.I.L.-Benelux (vide Kollewijn, , American-Dutch P.I.L., 2nd ed., p. 99/100Google Scholar) and the Explanatory Note to the Uniform Law, again and not quite correctly (cf. supra sub 4) linking the solution given with the Supreme Court decision of 1929.

6. It is here where the Utrecht District Court decision (above, sub a) comes in, and where it finds itself in trouble. The husband either was a German whose “Ausbürgerung” was to be regarded as non-operative, pursuant to the Elfte Verordnung etc. being contrary to the law of nations, or he was an apatride in view of the fact that one can not effectively deny a country the right—however distasteful one may think the use made of it in certain circumstances—to decide whom it will count among its citizens and whom it will not (or will no longer): to continue to consider a ‘de-naturalized’ person as a citizen of the state in question would, apart from the connecting value that the ‘lost’ nationality may have in p.i.l. matters, be nothing but a ‘coup d'épée dans l'eau’. On this aspect of the case, see Kollewijn, , W.P.N.R. 4737, p. 404Google Scholar, Clunet 1964, p. 597Google Scholar. The Court's considerations as to this point are unsatisfactory and inconclusive to such an extent that I decided to leave them out. In contradistinction to Kollewijn I was quite unable to read in these considerations anything else than an assertion that the husband was an apatride (see also: De Conflictu Legum, Kollewijn-Offerhaus-Volume, p. 100Google Scholar), this in view of the Court's express reference to the fact that recovery of German citizenship does not take place automatically. But then—again in contradistinction to Kollewijn's interpretation—the Court's opinion that application of German law would be artificial now that the marriage, pursuant to the complications in connection with the husband's citizenship, has failed to establish unity of nationality as between spouses, comes in for criticism as being illogical, unless one considers the Court as having adhered to the theory that in cases pertaining to the personal status of apatrides the law of the ‘virtual nationality’—as Hijmans termed it, see Algemeene Problemen, p. 120Google Scholar—is applicable; a theory which has never become predominant in Netherlands p.i.l.

However this may be, basically the above decision sofar constitutes a confirmation of the opinion that, in matters of matrimonial property relations, the personal law of the husband is the governing law. (Contra Van der Ploeg, , Régimes matrimoniaux, p. 896 and p. 995Google Scholar, who, through quoting exclusively the Court's consideration rendered in the above text as second consideration (“that, inasmuch.”) and failing to quote the subsequent one as well, gives an altogether wrong impression of the decision).

7. In the case before the Court, however, the circumstances are such as to lead the Court to decide that the case falls outside the scope of the said governing law, and that an exception must be admitted. In this respect the decision reached might be placed alongside the judgements rendered in the so-called Chinese cases, referred to above sub 3. It is a perfectly justifiable method of restricting a legal provision, whether written or not, to refrain from application à la lettre of the same, when such application would conflict grossly with justice in concrete, provided that the solution given to the problem in hand is consistent with the system of the law as it has developed and currently stands: vide, on this point, Van der Ploeg, , Enkele Erfrechtelijke Hoofdstukken van Intemationaal Privaatrecht, 1961, p. 16Google Scholarseqq., reproduced, with the omission of a discussion with Kollewijn, , in Régimes matrimoniaux, p. 912 and p. 1010Google Scholar, and the present author's observations thereunto, this Review, 1962, p. 81/82Google Scholar; see furthermore this Review, 1963, p. 318Google Scholar, and ibidem, 1964, p. 383, sub 5, and the references.

In the present case, the Court has in this way also restricted the scope of the governing—personal—law, but it has not seen fit to help in the establishment of a subsidiary rule. It explicitly confines the solution given, viz. applicability of the law of the domicile, to the case in hand. Instead, it could—and should–in my submission have adopted either of two courses: (1) it could have applied the law of the domicile as being the personal law of the husband who had no (effective) nationality, or (2) it could have applied that same law as being the law of the place where the couple set up their common household. (Comp. here also the function of the domicile in the Netherlands answers in the Kraemer-Bach c.s. publication, mentioned sub 5). As it is, pragmatically speaking, the ‘right’ law was applied; but the grounds on which this was done are hardly such as to enhance the development of p.i.l.

8. Nevertheless the decision may well be taken down as another—be it weakish— sign of the breakthrough of the domiciliary principle; cf. De Conflictu Legum, p. 103seqqGoogle Scholar. The juxtaposition in the decision of the ultimate solution and the provision of art. 5 Uniform p.i.l. Benelux points in that direction, although, as I have expounded earlier in the Kollewijn-Offerhaus-Volume, p. 110, the said juxtaposition lacks justification in like manner as the article concerned lacks inner coherence, l.c., p. 109 (Comp. the somewhat inaccurate analysis of my contribution to the K. & O.-Vol., and the—not only therefore—in my opinion not quite justified criticism inflicted thereon by Franx, , R.M.Th. 1966, p. 132seqqGoogle Scholar., notably, in casu, p. 136/7) Section 2 of article 5 reads: “Provided always that if the husband was never domiciled in the country of which he is a national, or if more than five years have elapsed since his permanent establishment abroad, then in the absence of a marriage settlement, the matrimonial property regime shall be that determined by the law of the country where the spouses, immediately after the celebration of the marriage, have established their common domicile unless the national law of the husband does not recognize that regime.” (Translation taken from Kollewijn, , American-Dutch P.I.L., p. 99/100).Google Scholar

9. In view of the fact that the preeminence of the law of the husband (1) has, in the majority of the cases, been maintained where husband and wife were of the same nationality, so that, with regard to the cases of difference of nationality, there is no convincing and conclusive standing practice adhering to this solution; (2) has only found its way to the Hague Convention on the same inconclusive basis as that referred to sub 1; (3) has not, so far, had the support of the authority of the Supreme Court—notably, as Van der Ploeg has rightly pointed out, not in the 1929 decision; (4) has, as far back, as 1928 and, later, more explicitly, in 1937 been severely criticized by “the angry young man” of Netherlands p.i.l., Hijmans—successor, in the Amsterdam p.i.l.-chair, to Asser and Jitta (cf. Offerhaus, , in Ius et Lex, Gutzwiller-Volume, p. 283Google Scholar)—first in his Colleges over Internationaal Huwelijksgoederen- en Erfrecht, mimeographed edition, p. 36Google Scholar, later in Algemeene Problemen, p. 64Google Scholar; (5) has, furthermore, met with the same criticism at the hands of Kollewijn, this time after introduction into Netherlands legislation—Act of June 14, 1956, Stb. 1956, No. 343, in force as from January 1st, 1957—of the equalization of men and women W.P.N.R. 4737, p. 405, 2nd col.Google Scholar, Clunet, 1964, p. 599Google Scholar; (6) has equally sharply been refuted by Graulich, , Principes de droit international privé (1961)Google Scholar–in connection with the Belgian Act of April 30, 1958–p. 118/119, speaking for Belgian p.i.l., the co-producer of the Uniform Benelux law (compare: Rigaux, , in: Les régimes matrimoniaux et les successions en d.i.p., p. 31/32Google Scholar); and finally, (7) is now queried by the lower jurisdictions, according to Sauveplanne, , o.c. (supra, sub 4), p. 27/8Google Scholar; in view, now, of all these points one may well ask whether article 5 of the Uniform p.i.l., laying down the said superannuated principle and at that, in an infelicitous manner: cf. de Winter, , W.P.N.R. 4240, p. 194, 2nd col.Google Scholar—should not be modified before the Uniform law is enacted, so that, in cases of difference of nationality the law of the first matrimonial domicile will be declared applicable, complemented by an optional regulation in the interests of the protection of third parties as propounded by Berr in his interesting contribution in Clunet 1965, p. 320Google Scholar. I really cannot see how one can do justice to modern development—or even do justice!—whilst retaining this article unmodified. Cf., besides the French author just-named, and the abundant (mostly French) literature, referred to by him, also the comparative study—a Freiburg (Sw.) dissertation of 1964—by Meisters, , Die Bedeutung der Parteiautonomie für das französische und deutsche Internationale Ehegüterrecht, p. 65seqq. and p. 86seqq.Google Scholar; Kegel, , Internationales Privatrecht, 2nd ed. 1964, p. 284/85Google Scholar (the ‘Kegelian ladder’), idem in RabelsZ. 1960, p. 208Google Scholar (comp. Siegrist, , RabelsZ. 1959, p. 103Google Scholar)—it remains interesting to look up, here, the still valuable monograph by MissJoelson, , Güterrechtliche Wirkungen der Ehe bei verschiedener Staatsangehörigkeit der Ehegatten im intemationalen Privatrecht, 1933, p. 63 seqq.Google Scholar, a book which, like the abovementioned Swiss dissertation also went through the careful hands of Gutzwiller. One may also profit by perusal of the descriptive rather than original recent monograph by Schmid, , Das Eheliche Güterrecht der Ausländer in der Schweiz (1962)Google Scholar and the thorough study by Bondzio, , Zum intemationalen Ehegüter- und Ehegattenerbrecht der Vereinigten Staaten von Amerika (1964)Google Scholar, No. 6 Kölner Reihe of the Berkeley-Kölner Rechtsstudien.

10. Since the introduction, in 1957, of the new (domestic) law on matrimonial property relations in the Netherlands, it is possible for Netherlands spouses, after their marriage has subsisted for at least three years, to change their regime, subject to the approbation by the judge, who, however, shall withhold his approbation (1) where there is no reasonable ground for the proposed change, and/or (2) where the rights of third party creditors are jeopardized. Art, 204 Neth. Civil Code, laying down this regulation, does not, however, contain any provision in connection with the question as to whether the Netherlands judiciary will have jurisdiction if spouses are domiciled outside the Kingdom, as was the case in the above decision sub b. Netherlands spouses domiciled abroad cannot but turn, therefore, to the foreign judicature of their domicile and petition there for an approbation as required under Netherlands law. Approbation so granted by a foreign judge will be held valid in this country: Van der Ploeg, , Régimes matrimoniaux, p. 898, note 2 and p. 997Google Scholar, note 2; Kollewijn, (W.P.N.R 4832, p. 465, 1st col.Google Scholar, idem, Tien Jaren, p. 63Google Scholar) who observes, that the fact that Netherlanders are under certain circumstances forced to apply to a foreign judge in order to effectuate a right conferred upon them by Netherlands law, is a collateral of the fact that Netherlands judges are under particular circumstances called upon to lend their administration in cases not provided for by the lex fori; and he refers to Gamillscheg's contribution to the Hans Dolle-Volume II, p. 289 and his own evaluation thereof in this Review, 1964, p. 73/74Google Scholar, refuting the all too narrow opinion of Kosters-Dubbink, p. 596, and praising Dolle's article in RabelsZ. 1962 on Freiwillige Gerichtsbarkeit. The alarm raised by MrsRoessel, M. I., in N.J.B. 1965, p. 983Google Scholar, urging speedy intervention on the part of the legislature, no doubt sprang from commendable zeal and concern, but, in view of the foregoing, would seem to be just that bit pointless.

11. To end this excessively long note. The decision sub c was included, firstly, because it is a rare and interesting example, within the Netherlands (juridical) realm, of the application, in the field under consideration, of the party-autonomy principle. This principle, as was said above, has never formed part of Netherlands p.i.l. nor has the Netherlands Antilles conclusively adhered to it. Comp. de Winter's comment to the Uniform Benelux p.i.l.; note, that Van der Ploeg has not, in his contribution to Régimes matrimoniaux, repeated his reference to the will of the parties, which featured in his 1952 article on our subject (W.P.N.R. 4245). Secondly, it is, in a way a parallel to the case sub a, in that it provides an instance of judicial dissatisfaction with the outcome in concreto of the application à la lettre of the prevailing rule, i.c. requiring application of the law of the domicile of the husband at the time of celebration of the marriage (Court of Justice of the Netherlands Antilles, 12 17, 1957Google Scholar, A.J.B. 1958, p. 85Google Scholar, Kollewijn, , W.P.N.R., 4635, p. 297Google Scholar, 2nd col., Tien Jaren, p. 58Google Scholar). It is noteworthy that the Court has not followed the decision of the Court of First Instance of Aruba of November 23, 1960, (A.J.B. 1961, 57Google Scholar with a note by the Antillean notaris Henriquez, vide Kollewijn, , W.P.N.R. 4737, p. 405/6Google Scholar, Tien Jaren, p. 60Google Scholar), a decision and more especially a note in which the possibility of mutability of the matrimonial property regime was advanced, a suggestion which might have helped the present Court to a workable solution. The Antillean Court, on the other hand, adhering to the hitherto prevailing immutability, finds another way out, and, in order to move out of reach of the fortuitous connecting factor of the Hong-Kong domicile, it construes an entanglement with Continental Chinese legal atmosphere and, hence, the applicability of Continental Chinese law, a method which is far from consistent with the Antillean system of adherence to the domiciliary principle. The negatively worded reference by notaris Henriquez (W.P.N.R. 4873, p. 407, 1st col.Google Scholar) to the concept of ‘Maatschappelijke Woonplaats’, as proposed and set out by de Winter in his 1962 inaugural address in the Amsterdam University, is interesting, but, being plainly negative, hardly helpful. Like the Court in the case sub a, the present Court, does not contribute to the establishment of a subsidiary rule, and likewise chooses, in fact, to decide the matter according to the special circumstances of the case (see supra, sub 7, in fine).