New Regulation in matrimonial property law
On 29 January 2019, a new regulation on matrimonial property law came into force and this has cross-border consequences for a divorce.
There are quite a few issues that arise during an international divorce process. What exactly is an international divorce? It may be a divorce where both parties or either party has a different nationality or another usual place of residence outside the Netherlands. Sometimes there are problems concerning the recognition of a Dutch divorce decree, a decision on maintenance or a decision concerning parental authority.
As and when necessary, we will call in the International Legal Institute (Internationaal Juridisch Instituut (IJI)), which celebrated its 100th anniversary in 2018. See their website, https://www.iji.nl/nl/, for the advice they may give.
The matrimonial property law regulation contains rules with regard to jurisdiction. This regulation prevails over the provisions of the Dutch Code of Civil-Law Procedure (Wetboek van Burgerlijke Rechtsvordering) and also replaces a very old Convention on Jurisdiction and the Dutch Belgian Enforcement of Judgments in Civil and Commercial Matters from 1925 applying between the Netherlands and Belgium.
According to Article 62(2), the Regulation prevails among EU Member States. Actions related to international matrimonial property law brought after 29 January 2019, come under the Regulation. If action was already brought before that date, jurisdiction will be reviewed on the basis of Articles 1 up to and including 14 of the Dutch Code of Civil Procedure (Wetboek Burgerlijke Rechtsvordering).
The Regulation also applies to jurisdiction rules (which court is competent to hear the claim) also for marriages concluded before 29 January 2019.
Which law applies?
Of course, the question of which matrimonial property law is applied has not yet been answered. To be able to establish which law applies, a so-called calendar of rules of conflict of laws, the conflictregelkalender is used.
There is an old treaty from 1905, the Hague Convention of the legal consequences of marriage, the Haags Huwelijksgevolgenverdrag, and one conflict-of-laws rule as formulated by the Dutch Supreme Court, the Hoge Raad, in the so-called Chelouche/Van Leer judgment from 1976.
Then there is a Hague Matrimonial Property Convention (Haags Huwelijksvermogensverdrag) 1978 and Article 3.3 of Book 10 of the Dutch Civil Code (BW) and now, of course, the Regulation on Matrimonial Property Law, the Huwelijksvermogensrechtverordening.
In the different regulations, partly different factors are being used to determine whether Dutch law applies.
It is always the time of the marriage or the time when the choice was made for a certain matrimonial property law, that is a criterion for the question which law is to be applied. Do keep in mind that the old rules remain important for the settlement of marriages that were concluded in the past.
Choice of law
In the Hague Matrimonial Property Convention (Haags Huwelijksvermogensverdrag) 1978 which came into force on 1 September 1992, the so-called “wagonstelsel” was introduced. It means that after having resided in the Netherlands for 10 years without submitting a valid choice of law, parties were deemed to be married in community of property all of a sudden. If a choice of law had been submitted before the marriage, this choice of law and that law will apply.
A choice of law submitted by the spouses during the marriage applies to all their property and has a retrospective effect to the moment the marriage was solemnized.
If the spouses opted for the Dutch regime of later than 1 January 2018 – the limited community of property – this property regime is deemed to have applied from the moment the marriage was solemnized. It is since then impossible to have a silent choice of law.
If the (silent) choice of law was made before 1 January 2018, the old matrimonial property law valid until 1 January 2018 applies, and this means that the parties are married in full community of property. This also means that inheritances and gifts come under the community of property – unless there is an exemption clause –
Usual residence after the marriage
In order to decide which law applies, it is often important where the first usual residence of the spouses was after their marriage was solemnized, especially when they do not have the same nationality.
If they do not have the same nationality, and did not live in the same place straight after their marriage, then it will be checked in accordance with Article 4(3) of the Hague Matrimonial Property Convention (Haags Huwelijksverdrag) 1978 which country (law of which country) the matrimonial property regime is most connected to if all circumstances are taken into account.
It will be clear from the above how complicated international private law is in the field of divorce, for issues such as spousal maintenance, child maintenance, parental authority and pension equalization have yet been left out of this discussion.
Any questions about the above or about another topic? Please call us at 070-3154000, or send a mail to: email@example.com.