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Divorce in Netherlands Private International Law
Published online by Cambridge University Press: 21 May 2009
Extract
Formerly, jurisdiction in divorce cases was regulated by ss. 262 and 266 of the Civil Code. These provisions have been left out of the new Book 1 of the Civil Code, which came into force on January 1, 1970. Jurisdiction is now being dealt with by the new s. 814 of the Code of Civil Procedure, of which the text (as adapted by the Divorce Reform Act 1971, S. 290, in force October 1,1971) runs as follows:
In matters of divorce, judicial separation, and dissolution of marriage after judicial separation, the Dutch courts have jurisdiction if, at the commencement of the action:
a. both parties are Dutch nationals; or
b. one of the parties, if both parties are petitioning together, for the previous six months has had his domicile in the Netherlands; or
c. the respondent has had for the previous six months, or the petitioner for the previous twelve months—or if he is a Dutch national for the previous six months—his domicile in the Netherlands.
The competent court is the district court of the domicile of either party, if they are petitioning together and otherwise the district court of the domicile of the respondent or, if only the petitioner is domiciled in the Netherlands, the district court of that domicile. If neither of the parties is domiciled in the Netherlands, the District Court of The Hague is the competent court (etc.).
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- Copyright © T.M.C. Asser Press 1972
References
1. The numbers between brackets refer to the decisions published hereafter under B.
2. See Kokkini-Iatridou, Deux nouvelles réglementations de compétence international en matière de divorce, Rivista di Dir. Int. Priv. e Proc. 1971, 5.
3. Recommended by Sauveplanne, J. G., Internationaal privaatrechtelijke vraagstukken met betrekking tot de echtscheidingGoogle Scholar, Report submitted to the Ned. Juristenvereniging, 1971, and accepted by a majority during discussion of the Reports.
4. Over 75% of all international divorces are default or admission cases. When the respondent is prevented from entering an appearance for financial reasons, the non-appearance should not be construed as an admission (District Court of Rotterdam, Feb. 10, 1964, NTIR 1965, 408).
5. Being almost necessarily in the Netherlands because of the jurisdiction rules of s. 814 CCP. Common domicile here means: domicile in the same country. The Court of Appeal of 's-Hertogenbosch NJ 1971, 58 applies Dutch law as being “the law of the last common domicile of the parties, who have moreover both continued to reside in the Netherlands”.
6. See also Supr. Court NJ 1965, 132; NTIR 1965, 411; Clunet 1969, 1027.Google Scholar
7. See Deelen, , Internationale EchtscheidingGoogle Scholar, Report submitted to the Netherland Juristenvereniging 1971, whose conclusions on this point were accepted by a majority during discussion of the Report. See also Deelen, , NTIR 1963, 317Google Scholar; 1967, 298; 1969, 413. Kokkini-Iatridou et Verheul, Les effets des jugements et sentences étrangers aux Pays-Bas, 1970, p. 34Google Scholar, also published in Netherlands Reports to the VIIIth International Congress of Comparative Law, Pescara, Deventer, 1970, p. 160.Google Scholar
8. The Supreme Court made the restriction that if the Dutch spouse is domiciled in the Netherlands, Dutch public policy will not allow the parties to establish the jurisdiction of the foreign (i.e. Mexican) court merely by voluntary submission.
9. See for an application of the Belgian treaty in a divorce case: District Court Rotterdam, October 15, 1954, NJ 1955, 277, granting an exequatur in relation to a maintenance order included in the Belgian divorce decree.
10. The most important of these decisions will be included, in the near future, in the English survey of Netherlands judicial decisions in this review.