Walking down the aisle and getting married is supposed to be one of the happiest moments in life, with many dreams, hopes and good will invested. In today’s fast-paced world, the legal aspects resulting from a marriage are often not entirely clear; especially in the case of international families, living and working in a foreign country. In their latest article, GMW Advocaten shed light onto some of the most pertinent questions on the subject.
A quick example for a complex situation: A British couple, married in 1994, moves to The Netherlands in 1998 and lives there ever since. Would we all know which matrimonial property law is applicable in their case in 2009?
Well, strange as it may seem, English law would apply for the first 14 years of their marriage; however, from 2008 onwards, the Dutch rule of community of property would apply. In practical terms this means that, should they decide to get divorced in 2009, all property would have to be shared between the partners, possibly even an inheritance.
This one example shows quite clearly that setting things right from the beginning is very important, not only in cases of divorce, but also in the unfortunate event of one of the spouses – or parents, for that matter – passing away whilst abroad.
For marriages tied after 1 September 1992, the 1978 Hague Convention on Private International Law is applicable. In plain terms this means that the property regime applicable to a marriage can change without the partners being explicitly notified. Such changes may arise, among others, from one of the partners changing his or her nationality during the marriage or if the couple has lived in The Netherlands longer than 10 years. Such changes cannot be applied retroactively and that is the reason that, in the case of an international couple getting divorced in The Netherlands, several subsequent regimes may apply.
Fortunately, avoiding foreseeable difficulties is possible and one is well advised to settle matters in advance, preferably during happy times.. The choices are limited: one can opt for the law of the host country in which the partners reside when registering their prenuptial agreement – in this case, The Netherlands, or opt for the law applicable in one of the countries of which the partners are nationals of. The formalities of registration are the same as the formalities required for a prenuptial agreement by the national law of choice; in The Netherlands you would have to see a notary to draft such an agreement.
As a family law specialist I have come up against quite a few complicated legal situations, so you are advised to make sure what law is applicable to your marriage.
For more information and consultation related to the subject please contact Marjet Groenleer on 070-3615048 or send an email m.groenleer@gmw.nl.
Marjet Groenleer
