Making arrangements for your children if you get divorced

9 January 2018

Are you an expatriate living and working in the Netherlands? And are you married, with one or more minor children? If so, and if you are in the process of obtaining a divorce (or thinking about doing so in the near future), it’s important to be aware that you need to make certain arrangements for your children. Under Dutch law, for example, one of the parents’ homes needs to be designated as the children’s principal place of residence. And there are other questions that need answering: what ‘care arrangements’ have the parents made? How much does the children’s maintenance cost? And how much should each parent contribute towards this? This article discusses the main problems expatriates living in the Netherlands are likely to encounter in this connection.

New law on matrimonial property as from 1 January 2018

Before looking at the various arrangements you need to make for your children, I should like to point out that a new law on the community of matrimonial property took effect on 1 January 2018. See here for a previous post on the Dutch law on matrimonial property.

Financial arrangements: child maintenance

If you have one or more minor children, i.e. under the age of 18, you will generally need to make arrangements for the payment of child maintenance (kinderalimentatie in Dutch). The first step is to decide whether a Dutch court is competent to set the level of child maintenance. If the question of child maintenance is linked to divorce proceedings currently underway in the Netherlands, the court will generally assume jurisdiction for the settlement of maintenance.

Once it is clear that the Dutch court has jurisdiction over the matter, the following problem is to decide to which national law maintenance is subject. Basically, a Dutch court has two options from which to choose:

1.         If the children live in the Netherlands, maintenance is assumed to fall under Dutch law.

2.         If the children do not live in the Netherlands, however, Dutch law will not apply. Unless the parents agree together that child maintenance should be settled in accordance with Dutch law, the applicable law is the law of the country in which the children reside.

Here in the Netherlands, an organisation known as NIBUD (‘National Institute for Budget Information’) has compiled tables that you can use to calculate the amount of child maintenance you need to pay. The important factors here are the net incomes of both parents, and the number and ages of the children. Once the level of cost has been determined, the next step is to work out how much each parent is able to contribute, based on his or her ability to pay. The basic principle under Dutch law is that each parent contributes towards the cost of the children’s care and upbringing in accordance with their financial means.

If Dutch law does not apply, which national law does?

What if the divorce proceedings are taking place in the Netherlands, but your children live abroad? In that case, the Dutch court will deem itself competent to decide on the question of child maintenance. If the parents do not reach agreement together that the issue of child maintenance should be subject to Dutch law, the Dutch court will decide the matter in accordance with the law of the country where the children reside.

It’s important to bear in mind, therefore, that Dutch law will not automatically apply to the setting of child maintenance, and that the applicable law depends on where your children live. In other words, if your children live abroad, child maintenance can be set in accordance with Dutch law only if you and your partner agree that Dutch law should indeed apply.

Is a Dutch court also competent to decide on a care arrangement?

When reaching a decision on your divorce, the court will also decide which parent’s home is to be the children’s ‘principal place of residence’  and will also make what is known in Dutch as a ‘care arrangement’ (zorgregeling, i.e. contact arrangements or visitation rights). If your children do not live in the Netherlands, a Dutch court is not competent to make care arrangements for them. In that case, any dispute between you and your spouse about the contact arrangements must be referred to a court in the country in which your children are living.

There is one important exception to this rule, however. The parents may agree together that Dutch law should apply, thereby empowering the Dutch court to decide both where the children’s principal place of residence should be, and the nature of the contact arrangements. You can save yourself a huge amount of time and trouble if you can reach agreement about this. This is particularly true where different jurisdictions are involved, as it removes the need to submit the matter to a foreign court.

Dutch law requires a parenting plan

If the Dutch court is competent to make a care arrangement for your children in accordance with Dutch law, you and your spouse are obliged to draw up a ‘parenting plan’ (ouderschapsplan). This specifies your children’s principal place of residence, explains how responsibility for the children’s care and upbringing is divided between the parents, and/or sets the level of child maintenance, which means making a financial arrangement to cover the cost of your children’s care and upbringing.

What can we do for you?

It is important to realise that Dutch law does not automatically apply to divorce proceedings pursued in the Netherlands. Not only can international divorce proceedings easily turn out to be costly, their outcome is often uncertain, particularly where children are involved. For this reason, we would advise you to seek advice from one of our family lawyers at the earliest possible stage, so as to rule out any nasty surprises along the way. Not just for your own sake, but for your children’s, too.  

K.E.H. (Karen) Rueb-Braakman
k.rueb@rwv.nl
+31 (0)71-750 22 05
+31 (0)6-54 73 00 27