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The New Dutch Private International Law Legislation Regarding the Law to be Applied to International Divorce and the Recognition of Divorces Granted Abroad
Published online by Cambridge University Press: 21 May 2009
Extract
Since 1973 developments have taken place in the field of international divorce law in the Netherlands. In the case of 23 February 1973, NJ 1973, 366, the Supreme Court ceased following the doctrine formulated in the Boon-Schmidt case (13 December 1907, W. 8636). Since then the Supreme Court has been repeatedly called upon to give its opinion on the question of which law should be applied in an international divorce granted in the Netherlands. The developments have (temporarily) stopped due to the entry into force (on 10 April 1981) of the Act of 25 March 1981 (Staatsblad1981 no. 166), containing the regulation of conflict of laws concerned with the dissolution of marriage and separation, and the recognition of these, in connection with the entry into force of the Conventions of Luxembourg and The Hague concerning the recognition of decisions on marriage and the recognition of divorce and separation.
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References
1. The “Dutch International Divorce Act”. In the remainder of this article I will deal only with divorces; mutatis mutandis, all that is said applies also to separations. For an English translation, see Dutch International Divorce Act, NILR (1981), pp. 390 et seq., note J.P. VerheulGoogle Scholar.
2. Some writers, including Eyl, have highlighted the close links between the conflict of laws and the recognition of foreign divorces in “Internationale echtscheiding in Nederland”, Studiekring Offerhaus (1965).
3. This act will be referred to as “the Act of assent”. The first convention will be called “the Luxembourg Convention”: and the second, “the Hague Convention”.
4. However, there are ample grounds for considering that judicial developments have here also come to a halt.
5. In the first decade of this century this was virtually always the common national law. On this subject, see the inaugural speech of Kokkini-Iatridou: Etapes vers l'égalité des status des époux en droit international privé (1968). Also see Gerard-René de Groot: Gelijkheid van man en vrouw in het nationaliteitsrecht, geschriften van de Nederlandse Vereniging voor Rechtsvergelijking, no. 25.
6. The Boon-Schmidt doctrine was very obviously abandoned in the decision of the Leeuwarden Court of 23 April 1964, NJ 1964, 337. As regards other court decisions one may mention, inter alia, the decision of the Hague Court of Appeal of 6 May 1954, NJ 1954, 590.
7. On this subject see, inter alia, Verheul: De Nederlandse rechtspraak inzake echtscheiding in het internationaal privaatrecht 1970–1972.
8. See, inter alia, the Arnhcm Court of Appeal, 1 February 1972, NJ 1972, 188. In this context Art. 8 of the 1902 Hague Divorce Convention should be referred to. In this Article, the last common national law was considered applicable if the parties had different nationalities at the time of the divorce. This Article led to problems with regard to women who were married and thereby acquired their husband's nationality while his national law did not allow the divorce. These problems led to a number of states renouncing the Convention.
9. See Arnhem Court of Appeal, 20 December 1966, NJ 1967, 425.
10. For example, in the Federal German Republic, Art. 17 Einführungsgesetz zum Bürgerlicht en Gesetzbuch (EGBGB). For recent legislation, also see the Spanish law of 17 March 1973, as this applies from 1973, containing the alteration of the titre préliminaire of the Spanish Civil Code. An English translation of this appears in 21 NILR (1974), pp. 367 et seq.
11. In Belgium the Hof van Verbreking (Cour de Cassation) applied this rule in 1955. The decision formed the initiative for the creation of legislation on this subject. Since then Belgian law must be applied if one of the parties has Belgian nationality; if neither of the parties has Belgian nationality, Belgian law is also applied, provided that the national law of the plaintiff allows the divorce.
12. On L'arrêt Rivière Cass. 17.4.1953, see Droz, : “Une Construction prétorienne exemplaire”, la loi applicable au divorce des époux de nationalités différentes en droit international privé”, De Conflictu Legum (1962), pp. 125 et seqGoogle Scholar. I ought to point out that a completely new system was introduced by French legislation in Art. 310 CC, which deviates in principle from the results arrived at by caselaw. On this subject, see Francescakis, : “Le suprenant article 310 nouveau du Code Civil sur divorce international”, Revue Critique 1975, 553Google Scholar.
13. Amsterdam Court 29 January 1970, NJ 1970, 188 and Amsterdam Court 27 April 1972, NJ 1973, 85.
14. On this state of affairs, see also Franx, : “Internationale echtscheidingen, enkele recente ontwikkelingen”, in NJB 1976, p. 134 et seqGoogle Scholar.
15. The law of the common domicile will, in by far the majority of cases, be Dutch law. The Dutch judge is competent only if one of the parties has been domiciled in the Netherlands for at least six months in the sense of Art. 814 CCPr in conjunction with Art. 10, Book I CC. In most, though not all cases, this domicile will also be the habitual residence in the sense of private international law. Thus, if the Dutch judge has jurisdiction on the grounds of the domicile of one of the parties, this will normally entail that there is a common domicile in the Netherlands in the sense of Art. 1, para, b of the Dutch International Divorce Act.
16. Verheul argued in favour of the choice of law some years ago. See his report to the Calvinistische Juristen Vereniging in 1975, Rechtsvinding in het interruttionaal privaatrecht. See also his article in NJB 1980, p. 572 et seq., which influenced the parliamentary discussions on the International Divorce Act.
17. Deelen qualified this state of affairs in 1971 as a “muddle in our international marriage churchyard”, Preliminary Report NJV 1971.
18. Only the execution of foreign decisions is impossible, except where there is an execution convention. Court decisions establish that this Article does not forbid the judge from giving binding effect to foreign decisions. A decision also has other aspects than the executory effect: inter alia, there is the decision as a fact, the force of evidence and the binding effect, insofar as legal relationships are established between the parties. Nothing prevents the judge, for example, from using the establishment of these legal relationships as the basis for his decision. It is a fact that foreign decisions have no final power in this country, i.e., the Dutch judge does not haveto accept the legal relationships established already, merely because a foreign colleague has already done this. However, he does have the competence to do so. For a detailed account of the problems of recognition in general, see Dijk-Lukàcs, : Echtscheiding, p. 5. et seqGoogle Scholar.
19. The Article reads:
In all cases in which the guardian or supervisory guardian is appointed by the local Court in pursuance of the provisions of the Civil Code, the local court competent to do so is:
a. of the place of residence of the minor in the Netherlands, or, in the absence of a place of residence,
b. of his actual domicile in the Netherlands, or if there is none,
c. at The Hague.
This in no way diminishes the competence of consular officials in pursuance of the law of 25 July 1871, (Stb. No 91).
20. This is explicitly laid down in Art. 429, sub c CCPr, para. 2. The Article reads:
1. The competent court is the court of the place of residence, or if there is no place of residence in the Netherlands, of the actual domicile of the applicant. If there is more than one applicant, the court of the place of residence of each of the applicants is competent, respectively that of the actual domicile of each of them; if there is no residence or domicile in the Netherlands, the court at The Hague is competent.
2. The court has no jurisdiction if the application has insufficient links with the legal sphere in the Netherlands.
21. The Minister also argued in Parliament for the application of the Hague Convention per analogiam. Also see Kokkini-Iatridou/Verheul, : les effets des jugements en sentences étrangers aux Pays Bas, p. 25Google Scholar, and Kotting in WPNR 5493, p. 573 (survey of court decisions).
22. The standard decison is the Munzer case of 7 January 1964, Clunet (1974), 302 with Goldman's footnote; Revue Critique(1964), 344 with Battifol's footnote; JCP (1964) II 13590, Clunet (1974), 302, with Ancel's footnote.
23. On this subject, see Battifol-Lagarde, : Droit International Privé, part II, 6th impression, p. 466 et seqGoogle Scholar., and Déby-Gerard, : Le rôle de la règle conflit dans le règlement des rapports internationaux, p. 368 et seqGoogle Scholar.
24. See Art. 27, the relevant part of which reads:
A judgment shall not be recognized:
4. if the court of the State in which the judgment was given, in order to arrive at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State.
25. So as not to complicate matters unneccessarily I will refer only to the case in which one of them has a double nationality.
26. In the case of double nationality the effective nationality is the one which reveals the closest link with the country of which the nationality is held. An example would be a Dutch woman marrying a Swiss. She acquires Swiss nationality and retains her Dutch nationality. If she lives in Switzerland with her husband, her Swiss nationality is the effective one. If her husband lives with her in the Netherlands, her Dutch nationality is effective. In some cases it is difficult to determine which nationality is effective, for example, when the couple moves to a “third” country. In this case I should consider the parties to have different nationalities.
27. In Het Personeel Statuut (1964) De Winter listed a number of criteria for competence, pp. 85–95: 1. The court of the common domicile of the parties; 2. the court of the last common domicile of the parties, provided that this is still the domicile of one of the parties at the time of the divorce; 3. the court of the domicile of the defendant; 4. the court of the domicile of the plaintiff if he has lived there at least one year, and if the defendant cannot be found, or has settled in a country where the divorce is not possible. Kollewijn proposed the rule that foreign divorces between foreigners with different nationalities should always be recognised when one of the marriage partners has a link of nationality and domicile with the legal order of the country where the court granted the divorce (WPNR 4528).
28. The formulation differs from Kollewijn, see footnote above.
29. Deelen, Preliminary Report NJV 1071 (in whose opinion this decision should be considered as a miscarriage of justice which should not be taken into account in the future), Struycken, , Het Personeel Statuut, (1968), p. 49 et seq.Google Scholar, Bijleveld, Erkenningvan buitenlandse echtscheidingen. I am of the same opinion as the above authors (Dijk-Lukàcs, , Echtscheiding, part 3, Erkenning Buitenlandse Echtscheidingen, p. 30 et seq.Google Scholar)
30. Les effet des jugements et sentences etrangers aux Pays-Bas, pp. 27–28.
31. Kosters-Dubbink, , Nederlands Internationaal Privaatrecht, p. 793 et seq.Google Scholar; Winter, De, Het Personeel Statuut(1964), pp. 85–95Google Scholar; Lemaire, , Nederlands Internationaal Privaatrecht, pp. 152/154Google Scholar; and Deelen, Preliminary Report NJV. See also, Kokkini-Iatridou/Verheul, Les effets des jugements et sentences etrangers aux Pays Bas.
32. Deelen, Preliminary Report NJV 1971: “a divorce can be recognized if pronounced by a court in, or effective due to recognition in, a legal sphere with which there is a relevant link”.
33. HR 24 November 1916, NJ 1917, 5; HR 4 March 1965, NJ 1965, 132; MR 9 December 1965, NJ 1966, 378 and HR 26 September 1969, NJ 1970, 195. See also, Amsterdam Court of Appeal 19 February 1976, NJ 1977, 132.
34. This is according to the explanatory report on this Article. It is therefore like signing a blank cheque. It cannot be said that there are no internal rules of competence to be found in the member countries which could not be considered to be exorbitant from an international point of view. An example would be Art. 14 CC, which assigns the French court competence with regard to divorce proceedings initiated between parties living in the Netherlands when the plaintiff has French nationality. This competence is considered exorbitant. For Art. 14CC see infra n. 42.
35. For further details, see: Basedow, , “La réconnaissance des divorces étrangers. Droit positif allemand et politique législative européene”, Revue Critique, (1978), p. 461 et seqGoogle Scholar.
36. Obviously the Luxembourg Convention does not apply because this is based on the competence of the judge who made the decision.
37. Preliminary Report NJV 1971, pp. 106–107. For the problem of recognition of repudiation in various luropean countries, see: Basedow, , Die Anerkennung von Ausland scheidungen, Rechtsgeschichte, Rechtsvergleichung, Rechtspolitik (1980), p. 8 et seqGoogle Scholar. In principle, repudiation is not recognised in the Federal German Republic if a German woman is involved.
38. On this subject, also see: Dilger, , “Spannungen im Algerischen Scheidungsrecht, zur Problematik der Verstoszung”, Rabelsz. (1971), p. 256 et seqGoogle Scholar.
39. For example, what does one make of a declaration made by the Ministry of Home Affairs of Burundi, of 1 April 1977, that in accordance with the husband's statement and his wife's agreement the marriage was ended on 10 October 1967. On this subject, see Lorbacher, , “Zur Anerkennungsfähigkeit von Privatscheidungen ausländischer Ehegatten durch die Landes-justizverwaltung”, Zeitschrift für das gesammte Familienrecht (1979), pp. 771–774Google Scholar.
40. There has been some discussion on this subject in the Federal German Republic. See the article by Lorbacher mentioned in the previous footnote. In Belgian law, repudiation declared in an embassy or consulate in Belgium, is not recognised. On this subject see the article by Taverne, in Journal des Tribunaux, 96th edition, bo. 5171 (05 1980)Google Scholar.
41. Memorandum, p. 3
42. This Article reads:
The foreigner, even if he is not resident in France, may be summoned before the French court for the execution of obligations contracted by him in France with a French person: he may be brought before a French court for the obligations contracted by him abroad with regard to a French person.
43. Art. 10 of the Luxembourg Convention is not affected by the Dutch International Divorce Act through Art. 13. In fact, Art. 13 deals with a more favorable arrangement for recognising foreign decisions. However, Art. 10 deals with the relationship between a foreign procedure and an internal procedure. This also applies for Art. 12 of the Hague Convention, and consequently this Article is not affected either by the internal arrangement allowed by Art. 17 of this Convention.
44. The Supreme Court has often shown that it is open to legal developments and is prepared to abandon a point of view it held previously (HR 7 March 1980, NJ 1980, 353; AA 1980, 575; HR 12 December 1980, NJ 1981, 454 and HR 27 November 1981, RvdW 1981, 157 (for a discussion of the last case see the article by Bod in WPNR 5594).
45. Memorandum, p. 19.