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SERVING THE NEEDS OF THE INTERNATIONAL COMMUNITY
Guide
BASED ON FREQUENTLY ASKED QUESTIONS
Legal Matters relating
to Key Life Events
Zeestraat 100 – 2nd Floor
2518 AD The Hague
Tel: 0900 2 ACCESS
(0900 222 2377)
10:00–16:00, Monday–Friday
[email protected]
www.access-nl.org
Legal Matters relating to Key Life Events
Contents
Introduction ..............................................................................................3
Frequently asked questions.................................................................5
Marriage, registered partnership and cohabitation agreements ....... 5
Children and family law .................................................................................... 8
Ending a relationship ......................................................................................... 9
Inheritance and wills........................................................................................ 11
Author
: Loredana Bertelli
Last update by
: Loredana Bertelli, Arati Sangole (September 2012)
This ACCESS Guide has been graciously revised by an ACCESS partner, GMW Advocaten
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Introduction
Living abroad is an exciting and amazing experience but it can also be a challenging one
at times.
You may decide to get married or have a baby in this country. Or you may be forced to
face a divorce or the death of a loved one.
This ACCESS Guide will provide you with general information on Dutch laws and some
advice on how to handle these important events of your life while living in the
Netherlands.
We would always recommend that you seek professional advice to get the legal guidance
depending on your personal situation. If you need a list of lawyers or notaries in your
area, please contact the ACCESS Helpdesk on 0900 222 2377(€0.20 per min) 10:00–
16:00, Monday to Friday, or send us an email at [email protected].
You can also contact the Dutch Legal Desk (Het Juridisch Loket) which can help you with
legal questions. You may visit their website www.juridischloket.nl or reach them at
telephone number 0900 8020 (€0.10 per min). You can receive information in English at
this number.
Marriage, registered partnership and cohabitation agreements
In the Netherlands partners can choose from two different officials forms of living
arrangement that are regulated by law: they can marry or enter into a registered
partnership. The same applies for couples of the same gender.
It is also possible to sign a cohabitation agreement and of course to live together without
signing any formal agreement.
Marriage (huwelijk) and registered partnership (geregistreerd partnerschap) are very
similar in this country. The partners have almost identical rights under the two systems
and both relationships are formalized by law. To a large extent the law specifies the
partners' rights and obligations, the conditions they must meet to formalize their
relationship, and the procedures involved, including ending a relationship. There are
significant differences when it comes to children.
Cohabitation and cohabitation agreement
Even if a couple living together choose not to formalize their relationship, the fact that
they live together still has legal consequences. There are implications, for instance, for
income tax and social security deductions and benefits.
They may enter into a cohabitation agreement (samenlevingscontract), a written
contract arranging a variety of matters relating to living together and sharing a home.
For eg., a couple may agree to support each other financially and share the costs of
running a household. They may also want to make arrangements about the use of each
other’s bank accounts; or dividing or sharing their property. The couple may arrange
these matters themselves, but it is often advisable to have an official cohabitation
agreement drawn up by a notary. This is required in order to be eligible for certain
benefits, such as partner’s pension schemes and employment fringe benefits.
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You can learn more about the role of a notary in the Netherlands on the Royal
Netherlands Notarial Organisation website (Koninklijke Notariele Broedershap – KNB):
http://www.knb.nl/english
Same-sex marriage
Since 2001 it has been possible in the Netherlands for two men or two women to enter
into a marriage or a registered partnership. Both, the registered partnership and the
marriage between two persons of the same sex provide nearly the same rights as
heterosexual marriage and differ only with regards to children and adoption. The samesex married or registered partner couples should be aware that their relationship and its
legal consequences will not always be accepted in other countries.
Children and family law
The nature of a couple’s relationship has significant implications if a child is born. In this
respect, there are major differences between marriage, registered partnership,
cohabitation and marriage between two people of the same sex.
The different relationships create different family laws between the couple and the
child, which entails various rights and obligations. They have implications for the child’s
surname, parental responsibility, nationality and rights of succession.
You can visit the Government of the Netherlands website which gives more information
about Family Law: http://www.government.nl/issues/family-law
Ending a relationship
Ending a relationship is never easy, especially if it takes place in a foreign country with a
legal system with which you are unfamiliar.
Property has to be divided up and agreements have to be made regarding maintenance
and pension. If there are children, then appropriate arrangements have to be made for
their care and upbringing.
In the Netherlands, when it comes to ending the relationship, the rules applied for the
marriage, registered partnership and cohabitation agreement are different.
The European Judicial Network website provides more general information on divorce:
http://ec.europa.eu/civiljustice/divorce/divorce_net_en.htm
Inheritance and wills
Losing a family member is a terrible blow at all times and having to rush around in
search of documents, statements and legal advice in order to take care of the settlement
of the estate only contributes to the aggravation. In some cases you have to deal with the
law of both the Netherlands and the law of your home country, e.g. if you have
possessions (a house, land, etc.) in your home country.
Filing for a divorce or facing a death is a stressful experience, especially if it happens in a
foreign country. If you feel that you need to seek counselling, ACCESS provides a
Counselling Services Network: http://www.access-nl.org/about-access/what-wedo/counselling-service-network.aspx
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Frequently asked questions
ACCESS has many years of experience serving members of the international community.
The questions outlined below are frequently asked by members of the international
community.
Please note that some of the websites mentioned in the answers are in Dutch only, but
you can read them in English by using Google Translate (www.google.com/translate). It
will not always give a perfect translation, but it will give you an idea what the text is
about.
Marriage, registered partnership and cohabitation agreements
Q. Who can marry in the Netherlands?
Anyone who has a Dutch nationality can get married in the Netherlands, regardless of
whether they live there and regardless of their partner’s nationality.
Two foreign nationals may marry in the Netherlands if one of them legally resides in the
Netherlands. In fact, to prevent marriages of convenience, non-Dutch nationals who
wish to marry or enter into a registered partnership must either have a permanent
residence permit or obtain a statement from the Aliens Police regarding their status
under the Aliens Act.
Couples of the same sex are also allowed to marry in the Netherlands.
Q. What is the Dutch law on matrimonial property?
Unless stipulated otherwise with a prenuptial agreement, marriage automatically takes
place in general community of property meaning that that all property and debts are
equally shared between the spouses, including assets obtained previous to the marriage,
inheritances and gifts.
A prenuptial agreement may be made before the marriage. This must be drafted by a
notary and entered in a matrimonial property register at the municipality where the
marriage notice is placed. It is also possible to make prenuptials during the marriage.
Q. What is the difference between marriage and registered partnership?
Marriage and registered partnership are both relationships formalized by law. The most
important difference relates to the children as the law does not automatically see both
registered partners as the parent of a child. If a man and a woman are married, the
husband automatically becomes the lawful father of a child who is born to his wife. In
case of a registered partnership, the man does not automatically become the lawful
father; this means that he has to acknowledge the child.
In principle, as in marriage, all possessions and debts are generally shared jointly in the
registered partnership; but different arrangements can be made by instructing a notary
to draw up a pre-partnership agreement, similar to the prenuptial one.
Registered partners should be aware that their relationship and its legal consequences
will not always be accepted in other countries.
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Q. My partner and I want to get married in the Netherlands. What are the steps to
be followed and the costs involved?
If you plan to get married, you first need to notify the municipality. This is called ‘Notice
of Intent to marry’ (ondertrouw). This must be made at the local municipality
(Gemeente) or Town Hall (Stadhuis, Afdeling Huwelijkszaken) of the city of residence of
one of the partners involved. You also need to do this at least two weeks before the
intended date of the wedding. The wedding must take place within one year of the notice
of intent to marry. If the one-year period expires, then another submission is required.
The documents needed may vary depending on nationality, previous marriages and
residence status in the Netherlands. It is advisable to find out well in advance what
documents you need and whether they meet the requirements.
General required documents for both partners include:
• A full birth certificate
• Proof of identity
• A marriage certificate in the case of a previous marriage with a divorce decree
in the case of a previous divorce or death certificate in the case of being widowed
• Completed witness forms for two to four witnesses (they must be 18 years of
age at the time or older) should be presented at this time.
Non-EU/EEA/Switzerland nationals are also required to submit the following in
addition to above:
• A declaration (Form M46) issued by the Immigration and Naturalization
Services (Immigratie en Naturalisatiedienst IND) stating that they do not object to
the marriage. The form is available at the town hall.
• A certificate of no impediment to marriage or certificate of civil status proving
you are not married elsewhere. This is available from your respective Consulate.
Note: A certificate of no impediment to marriage is issued after a notice of
marriage has been displayed at the Consulate General for 21 days, and if no
objection has been made about the proposed marriage. It is issued in the Dutch
language.
Documents from abroad that are not written in Dutch, French, German or English must
be translated into Dutch by a sworn translator in the Netherlands. Furthermore,
documents from certain countries must be legalised or provided with an “apostille”
stamp. More information about this is available on the website of the Ministry of Foreign
http://www.minbuza.nl/en/services/consular-services/legalisation-ofAffairs:
documents
Once the documents have been presented to the Town Hall a date and venue for the
ceremony may be selected. During this period the couple will meet with the official who
will perform the marriage ceremony. In some areas arrangements can be made with a
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marrying official for the ceremony to be held in English. However, the vows are legally
required to be in Dutch.
The civil ceremony may take place in a municipal district other than that of residence
but the municipal office must be informed so that arrangements for moving documents
can be made.
The notice of intent to marry is provided free of charge. However, there could be other
costs involved such as an appointment at the Registrar, wedding hall and for various
documents where costs are specific to certain situations. Please contact your
municipality for more details.
Q. My partner and I are contemplating on registering our partnership. Can you
please tell me how to go about with this and if there are any costs involved?
The registered partnership provides almost the same rights and responsibilities as
married partners and they both have similar steps.
If you plan to register your partnership, you first need to register this intention by
submitting your “Notice of Intent” to the local municipality (Gemeente) of the city of
residence of one of the partners involved. You need to do this at least two weeks before
the intended date of the partnership registration which must take place within one year
of submitting the notice. If the one-year period expires, then you need to resubmit
another notice of intent.
The documents needed may vary depending on nationality, previous marriages and
residence status in the Netherlands. It is advisable to find out well in advance what
documents you need and whether they meet the requirements.
General required documents for both partners are similar to the ones requested for the
marriage; please check the list in the previous Question.:
Q. My partner and I would like to have a religious marriage. What are the steps
involved?
In the Netherlands, marriages may only be blessed in church after the civil marriage has
taken place. It is up to the Church communities themselves to bless or solemnize the
marriage. They are not obliged to do so. It is advisable to check it with the Church of
your choice.
Unlike a marriage, a registered partnership may not be blessed in a religious service.
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Children and family law
Q. I am going to have a child. What should I do to register her/his birth?
Every child born in the Netherlands must be registered at the municipal population
affairs office of the town where the baby was born, within three days of its birth. If you
are unable to do so because of a weekend or public holiday, you must register the birth
on the first available working day. This service is provided free of charge
The Registry of Births, Deaths and Marriages will draw up a birth certificate. This is a
legal proof of the child's birth.
It is required that the father do the registration. If he is not able to register his child or if
the father is not known, somebody else who was present at the time of birth is allowed
to do so (e.g. family member, doctor, midwife etc.). If none of these authorised persons
are able or authorised to register the birth, the birth will be registered by a civil servant.
The mayor appoints the civil servant to do this task.
You will also need to bring the following:
• A valid identity document of the person registering the birth;
• A valid identity document of the mother;
• A statement by the doctor or midwife. This is to confirm the identity of the
mother;
• A marriage certificate of the mother (if relevant);
• A copy of the deed of acknowledgment is required; if the child has already been
acknowledged before birth (for unmarried couples). In this case, a certificate
regarding the choice of the last name may be needed required. This is also
required in case the decision about the last name has already been made.
Q. My partner and I are living together but we are not married and I am going to
have a baby. Will my partner be officially recognised as the father?
If you and your partner are not married and the father wants to be regarded as the
child's lawful father then it is required that he acknowledges the child.
This also applies if you have a registered partnership or a cohabitation agreement.
Acknowledging the child may be important for the right of inheritance, nationality,
determining parental access and/or parental guidance.
Your partner may acknowledge the child before the child is born by having a deed of
acknowledgement drawn up by the Registrar of Births, Deaths and Marriages or a
notary. Alternatively, he can acknowledge the child when registering the birth or at any
time afterwards. A written consent from the mother is required for this in advance.
Only when you have a registered partnership is the father obliged to provide for his
child regardless of whether or not he acknowledges him/her. The child also acquires the
right to inherit from its father.
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Q. I am going to have a baby in the Netherlands. Will my child have a Dutch
nationality?
Children born in the Netherlands to two foreign parents do not acquire a Dutch
citizenship at birth.
If you are Dutch or married with a Dutch citizen, your child automatically acquires a
Dutch nationality at birth.
If you are not Dutch and unmarried but the father is Dutch, the father must acknowledge
the child before birth or before the child reaches seven years of age. After the child’s
seventh birthday different procedures are needed. Once acknowledged, the child
acquires a Dutch nationality.
Ending a relationship
Q. My wife/husband and I have decided to dissolve our marriage. What is the
applicable law in a divorce proceeding between spouses of different nationalities?
In any international issue the Dutch court must decide which country's law is applicable.
That differs dependant on the various divorce elements. For every divorce element
different rulings determine which law is applicable. The most important divorce
elements are: the divorce itself, child and spousal maintenance, division of assets and
property, children (parental authority, access rights) and pension. These rules are found
in European Union regulations, conventions and in the Dutch Civil Code. In most
regulations there are possibilities to choose for a certain law, so please, be sure to get
solid advice from a competent lawyer on this matter. Even if you share the same
nationality, an international divorce will most likely incorporate aspects that may be
subject to different national legislations.
Sometimes filing a divorce in the Netherlands will suit you best, in other cases filing it
abroad might be a better option. “First comes, first served”; therefore you can’t file a
divorce in a country, if your partner already filed a divorce in another country.
If you decide to file the divorce in the Netherlands make sure that it will be recognized in
your home country.
Q. What is the jurisdiction of the Dutch Court in case of a divorce?
For two Dutch nationals it is always possible to divorce in the Netherlands. The Dutch
Court has also international competence when the two spouses live in the Netherlands,
regardless of their nationality. If only one of the spouses lives in the Netherlands and
they don’t have a common Dutch nationality, the Dutch court is authorised as well, but in
some cases it is necessary that one of the spouses has lived here at least one year. With
‘live’ is meant ‘habitual residence”. Only a registration in the Netherlands is insufficient.
Once the Dutch Court is authorised regarding the divorce itself, the Dutch Court is also
authorised regarding other divorce elements (assets, alimony, pension etc.), except
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when it comes to children. Only when the children ‘live’ in the Netherlands, the Dutch
Court has international competence. If not, the Dutch Court can not make decisions
about parental authority, access rights etc.
Q. My wife/husband and I have decided to dissolve our marriage. What do we
need to do or follow for us to legally get divorced?
In the Netherlands all cases of divorce (echtscheiding) have to be granted by the court.
Since only a lawyer has the authority to file a petition for divorce with the court, the first
thing that you can do is to seek legal advice from a good divorce lawyer or mediator.
According to the Dutch law, there is just one ground for divorce: irreparable breakdown
of the marriage. The marriage can be said to have irreparably broken down if continuing
living together has become unbearable and there is no prospect of a restoration of
marital relations anymore. The judge is not interested in the question of blame at all.
The behaviour that has led to the divorce has no influence on the decision as to how the
assets should be split or how much alimony should be paid.
The divorce proceedings may be instituted by both spouses jointly (a joint petition) or
by just one of them (a unilateral petition) and a divorce petition may be filed at any time
after marriage: there is no requirement for the parties to have been married for a certain
number of years or to have lived separately for a certain number of years.
If the divorce is by mutual request and is uncontested, it is not necessary for you to go to
court. The divorce settlement can be drawn up by a lawyer, signed by both partners and
sent to the court for authorization, which is always given if both partners have signed
the agreement.
The divorce comes into effect when the court ruling has been entered in the Register of
Births, Deaths and Marriages.
Q. My wife/husband and I have decided to dissolve our marriage. Who should
take care of the children?
In case of divorce you retain joint custody of the children, as during the marriage. Only
in exceptional cases can the court be asked to grant custody to either one of you.
During the divorce procedure in case of minor children you need to make a “Parental
Plan” (ouderschapsplan) in which you state the following:
• how you will share responsibility for the care and upbringing of your children;
• how you should inform and consult each other regarding important decisions
such as the choice of school;
• how the expenses related to the children are to be shared, and the amount of
maintenance to be paid for the them;
• you must also discuss the children's wishes.
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Q. My partner and I have decided to terminate our registered partnership. What
do we need to do?
If you do not have children, this can be done without going to court. You need to draw up
and conduct an agreement. The lawyer or notary declares that this agreement had been
conducted and it is recorded in the Register of Births, Deaths, Marriages and Registered
Partnerships.
If you have children the same procedure applies as in the case of a divorce and you are
obliged to draw up a parenting plan. The same rules as in case of a divorce are also
applied for maintenance and pension.
Inheritance and wills
Q. Which are the steps to be taken following a death?
When someone has passed away, you need to register the death of this person at the
municipality in which the death occurred. In the Netherlands this is almost always
arranged by a funeral director (uitvaartonderneming) although relatives may also
register it.
At the municipality, an official will draw up a death certificate and will provide you with
a document which states the authorisation for burial or cremation.
Under normal circumstances, a funeral or cremation has to take place within six working
days after the death occurs and therefore it is advisable to register a person’s death as
soon as possible.
Once the death certificate has been drawn up the death is registered in the Registry of
Births, Deaths and Marriages and in the Municipal Personal Records Database
(Gemeentelijke Basisadministratie, GBA).
If you want to register a death you will need to bring the following documents:
• A valid ID of the person making the registration and of the deceased;
• Your marriage certificate/partnership registration (if you are married or have
formed a registered partnership);
• A doctor’s statement concerning the death of the individual;
• If the burial or cremation takes place later than six days after the death has
occurred, you will need a document from a medical professional which states that
there is no objection to the postponement of the burial/cremation.
It is important to make an appointment with a notary/solicitor as soon as possible so
that all legal aspects are covered within good time.
The notary, after checking the Central Register of Wills (Centraal Testamentenregister)
and other population registers, issues a certificate of succession (verklaring van erfrecht)
recording the names of the heirs. Once in possession of this certificate you can access the
deceased’s bank and/or giro accounts (banks block any accounts in the name of the
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deceased).
You also need to notify employers, insurance companies, mortgage companies, pension
funds and so on.
The declaration of death duties and capital transfer tax must be dealt with within eight
months of the death by the heirs/beneficiaries (or the executor of the will). An
heir/beneficiary should realise that the consequences of accepting the estate are to his
account from the time of death. This means that the value of any stocks and shares as it
was on the date of death will be taken to settle the death duties and capital transfer tax,
even if the value has changed considerably by the time of payment.
It is also advisable to contact the Embassy or Consulate of the deceased; some of them
will be able to better inform you or help you in dealing with all the formalities.
Q. What to do in order to repatriate the body of a family member?
Repatriation of a dead person to the home country requires the help of the relevant local
Embassy or Consulate. Consular officials can assist you in having the remains returned,
in obtaining appropriate documentation and in inquiring about the Dutch exit
requirements.
Q. Do I need to make a Dutch will whilst I live here or is the will I made in my
home country valid?
If you are not a Dutch citizen and you already have a will that was made according to the
laws of the country in which it was drawn up, in principle, the will is also valid in the
Netherlands. The Netherlands is party to the Convention Providing a Uniform Law on
the Form of International Will and usually recognizes wills drawn up in another country.
However one of the conditions required is that the will has been drawn up in keeping
with the law of that country.
It is advisable to consult a Dutch civil law notary (notaris) who is familiar with the
registration and execution of foreign wills so that he can check whether the contents of
the will conflict with the Dutch law.
The will is then filed with the Dutch Central Register of Wills and you can be assured of
its recognition as valid in the Netherlands.
If you want to make a will in the Netherlands and decide who is going to inherit your
estate you can do so only in the presence of a Dutch notary.
Q. May I disinherit my child or my partner in my will?
You can disinherit your child but, in the Netherlands, he/she is always entitled to a
“legitimate share” (legitieme portie) amounting to half of the portion the child would
have received in the absence of a will.
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You can also disinherit your spouse and he/she is not entitled to a legitimate share.
However, to alleviate the consequences of disinheritance, the law gives the longest living
partner the right to a suitable level of provision; for example a spouse can make use of
the house as long as he/she lives.
You can also make a vruchgebruiktestament (usufruct will): your spouse will receive the
use and enjoyment of certain goods without owning them.
Q. Which law of inheritance is valid if my partner or I should die during our stay
in the Netherlands? The Dutch law or the law of my home country?
In the Netherlands you can determine who your heirs are in a will and, in principle, the
inheritance is divided according to this will.
If there is no will, the inheritance law will determine who the heirs to the person’s estate
are. In general, if the deceased has been a resident of the Netherlands for five years or
more, the Dutch inheritance laws are applicable, even if the deceased was a non-Dutch
national.
For temporary residents the nationality of the deceased will be taken into consideration,
as it will for those who have lived here for less than five years.
As this is a more complicated matter than it seems, it is best to seek advice from a
lawyer who is specialised in international law of inheritance.
Q. In the absence of a will, who inherits under the Dutch inheritance law?
Four categories of heirs are recognised in Dutch law: spouses or registered partners and
children have priority entitlement to an equal share of the estate, followed by siblings,
parents and nephews and nieces, and then by grandparents and great-grandparents,
respectively. Relatives within each of these categories are only eligible to inherit
property if there are no eligible relatives within the preceding category.
Each beneficiary can refuse the right of inheritance. This will likely be the case if there is
a negative estate caused by debts.
If the spouse and children were the heirs, the spouse would receive all assets and debts
of the deceased person’s estate and the children would have claim on their parent for
their inherited portion. When the children reach the legal age (18 years old) they are
entitled to handle their inheritance on their own, but as long as they are minor their
living parent will be the legal supervisor.
Partners living together without a registered partnership do not qualify for inheritance,
even if they have signed a cohabitation contract in the presence of a civil law notary.
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Q. Who would take care of the children if something were to happen to both
parents?
If your children are minors, living here in the Netherlands and both of you die, then a
legal guardian will be appointed by the Dutch court. This legal guardian could be a
family member but also someone else. The court will look after the best interests of the
child: they will first go through the process of searching for a will to establish a legal
guardianship and this could take a long time in case parents have not registered their
will at a Dutch notary.
This law will apply from the day you move into the Netherlands and become a resident.
If you are not married, live together and have children, a will and a co-habitation
agreement is recommended.
You can appoint a guardian yourself in a deed drawn up by a civil law notary or in your
will. The guardian is the person who has authority regarding minor children and he
raises them and represents them. He also administers the children’s inheritance, but in
case you think that this person doesn’t have the required expertise you can appoint an
administrator. You can also appoint an executor who will take care of winding up the
estate on behalf of the heirs (e.g. taking care of the funeral, paying taxes, selling the
house, etc.).
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This ACCESS guide is intended to provide general information. If you need more
specific information about this subject please contact the ACCESS Helpdesk on
0900 222 2377(€0.20 per min) 10:00 - 16:00, Monday to Friday, or send us an
email at [email protected].
We also work closely with our network of partners, associates and
trainers.
You can find their contact details on our website http://www.accessnl.org/about-access/how-we-do-it/helping-access.aspx
ACCESS guides available for downloading, free of charge, from the ACCESS website*:
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•
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Banking, Taxation and Personal Finance
Having a Baby in the Netherlands
Health Care in the Netherlands
Housing in the Netherlands
Learning the Dutch Language
What to do when Leaving the Netherlands
Legal Matters relating to Key Life Events
Partner Support
Studying in the Netherlands
Your Child
Your First Three Months
* The titles mentioned above will be published gradually during 2012. In this period the actual
titles available on the website may be different from the ones mentioned here.
© COPYRIGHT ACCESS September 2012
Disclaimer
This ACCESS guide is intended to provide comprehensive
and general information.
ACCESS did everything possible to ensure correct and up-todate information. ACCESS cannot accept responsibility for
any information that may have changed.
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