How To Properly Serve Divorce Papers In The Netherlands

This article will provide guidance on How To Properly Serve Divorce Papers In The Netherlands. In a divorce case, how a process server serves papers is vital. The specifics of the marriage and the relief sought are of the utmost importance in a divorce petition. Since these matters can be sensitive and exhausting, the service of divorce papers becomes a delicacy. Especially if one spouse lives in the Netherlands, service of documents should be handled by a professional process service agency like Undisputed Legal. A private process server, such as those at Undisputed Legal, reduces the likelihood of error or dispute since a knowledgeable and impartial third party executes the service. We are committed to providing meticulous service of your documents at all times. Click here for How the Hague Convention Simplifies International Process Service.

Background

First, whether the Dutch judge is qualified to decide on the divorce must be established. This situation will occur if at least one spouse regularly lives in the Netherlands. Under Dutch law, a couple does not have to live apart physically for a predetermined time before filing for divorce. Most of the time, an expat residing in the Netherlands may get a formal divorce there that will be acknowledged back home. A lawfully wed couple seeking a divorce must have their marriage officially ended by the District Court. Either one spouse may file the paperwork, or both spouses may. Divorce filing in the Netherlands requires a lawyer. One cannot personally contact and petition for divorce with the District Court. Click Here for Frequently Asked Questions About Process Servers!

Divorce processes include a written petition, a written defense (with a six to ten-week filing deadline), and a court hearing (which may take several months, depending on how busy the District Court is). Following that, the lawyer will get the verdict from the court, which will provide a decision in six to eight weeks. There is a three-month window for appeals after the District Court decision. Legal grounds for divorce (echtscheiding) in the Netherlands are always ‘irretrievable breakdown of the marriage.’ The other spouse can challenge the divorce claim in the District Court or Court of Appeal. Click here for information on How To Identify A Good Process Service Agency

If the marriage produced children, the parties must submit a written parenting plan to the District Court. At the very least, the parents must outline how they would split up child care after a divorce, keep in touch with the kids and each other, and provide for their children financially. Minors twelve years of age and up are legally entitled to voice their opinions before making decisions. However, what will happen to them after the divorce is up to the parents or the court to formulate a plan. Children cannot make decisions for themselves and will never be able to choose between their parents. The parties will have to justify to the court the steps they have taken to rectify the issue if it is not feasible to submit a parenting plan approved by both parties, maybe because it is difficult to speak with the other spouse then. The Child Protection Board may be asked to be guided by the court on the circumstances. Still, the judge will have the last say. Click here for information on How Rush Process Service Can Expedite Your Case.

Should the spouse need spousal support and the children reside in the Netherlands when the request is filed, the Dutch court will have the authority to decide on these matters. One might request that the court decide on these issues in separate procedures if the decision is not made during the divorce process. Click here for information on How Service of Process Ensures A Solid Foundation.

It is crucial to understand that a marriage is not deemed to be over just because the court has granted the divorce. First, within nine months—three months for potential appeal and, if not, another six months—the court’s decision must be entered in the register of deaths, births, and marriages. Click here for information on How Process Servers Protect Your Rights: Myths Debunked

The marriage will continue, and the court’s decision will be nullified if the divorce is not filed in time. The marriage ends formally the day the judgment is registered. Sometimes, the ex-pat parties must also register the divorce in their nation. Our Undisputed Legal private process servers are experienced in serving legal papers across countries. Click here for information on How To Overcome Language Barriers in Process Service

What requirements must be met to file for divorce?

One spouse may file for divorce unilaterally, or both spouses may file for divorce jointly. In either situation, procedures must be initiated by petitioning (verzoekschrift). Both spouses need legal representation whether the divorce is filed unilaterally or jointly. The district court (rechtbank) of the petitioner’s (or one of the petitioners’) residence hears divorce cases. No time limit applies to the filing of a divorce petition. This means the parties need not have been married for a specific time. The divorce becomes operative when the court ruling is recorded in the birth, marriage, and death registry. Click here for information on How Timelines Are Important in Process Serving.

The divorce may be registered only after the final verdict and cannot be appealed. Six months after the decision becomes final, the divorce must be recorded in the register; otherwise, it loses its force and can no longer be entered.

The irretrievable collapse of the marriage is the only basis for divorce under Dutch law. If living together has become unpleasant for the partners and there is little chance of the marriage being salvaged, it is said to have irretrievably broken down. Should one spouse submit a petition alone, they must declare that the marriage has irretrievably broken down, and should the other spouse dispute this, they must provide proof. The court decides if there is an irreversible breakdown of the marriage. When two parties file for divorce jointly, it is because they both think their marriage has irrevocably broken down. One may remarry or form a civil partnership after being divorced. A divorce might affect how an ex-spouse uses their surname. To have the right of the other ex-spouse to use their surname revoked, an ex-spouse may file a court application.

Couples’ property division

Limited community of property (beperkte gemeenschap van goederen) is the legislative system in effect in the Netherlands. This implies that all assets and obligations acquired during the marriage and those the spouses shared before the marriage are included in the community of property. The joint property (boedelmenging) is all the assets obtained in common before and jointly throughout the marriage. Whatever partner committed the debt, it is owned jointly by the spouses, whether it was incurred in standard before or during the marriage. Debt may be recouped by a creditor using joint property assets.

The legal community of property excludes debts and assets that belonged to only one spouse before the marriage. That spouse still owns them privately. Whatever their acquisition date, gifts and inheritances also do not belong in the legally defined small community of property. Gifts received before and after the marriage remain the private property of the relevant spouse.

The statutory system of the entire community of property applies to couples who were married before the statutory restricted community of property regime was implemented before January 1^st, 2018. In this instance, joint property includes any property obtained by the partners either before or during the marriage. Joint property (boedelmenging) consists of all assets held by either spouse. Whether a loan was taken out by one spouse or the other, in theory, it is all joint liability. A creditor might use the whole joint property to pay off the obligation.

The community of property is dissolved upon divorce, that is, on filing the court order granting the divorce in the register of births, marriages, and deaths, under both the restricted property regime and the complete community of property system in effect currently. Joint property has to be shared upon divorce. The rights each spouse has to the joint property need to be determined. Generally speaking, each spouse gets half, though the spouses may modify this provision in a divorce settlement (echtscheidingsconvenant) or during property division.

A marital property agreement may be entered into before the marriage by spouses to choose a regime different from the statutory arrangement. Such agreements then specify how property will be divided in the case of a divorce. If, after the divorce, the parents retain shared custody, they need to organize childcare finances. They could also request that the court set down such terms. If they can’t agree, the court could decide how much maintenance has to be paid. Should one parent get exclusive custody, the court will determine, upon request, how much the other parent should pay for the creche.

Dutch law often covers pension rights if it applies to property partition. A pension equalization, or ‘pensioenverevening,’ will see the couple split all pensions accrued during the marriage equally. The pension fund immediately pays the second spouse after automatically separating a portion of their primary retirement. Also shared may be some monies thought to be pension equivalent. These might be a life insurance policy purchased to augment a limited business’s retirement or pension reserves.

Spousal Maintenance in the Netherlands

After a marriage dissolves, couples still owe one another maintenance. When one ex-spouse’s income is insufficient to cover living expenses, and they cannot reasonably be expected to produce such money, the court may, at their request, issue them a maintenance allowance that the other ex-spouse must pay. The court may decide on the allowance at the time of the divorce or later.

The court considers the financial situation of the other ex-spouse and the requirements of the ex-spouse who will receive the payment when determining the allowance. Additionally, non-financial elements may be considered, including the length of the marriage or the time spent living together. Should the court impose no time restrictions on the maintenance requirement, it will end after twelve years. In theory, maintenance payments will not be required longer than the length of the marriage if it was brief—less than five years—and ended without children. If the parties to a divorce settlement agree on maintenance payments, they may document the terms.

An annulment effectively goes back to the moment the marriage was entered into. This implies that when the court declares the marriage null and void, it will be seen as never having happened. This idea may be defied in some situations. The annulment in such a situation has the same effects as a divorce. An annulled marriage, for example, leaves the children linked to both parents—an additional exemption concerns a putative spouse or a spouse unaware that the marriage was null and void. One putative spouse could, for instance, ask the other to pay maintenance.

Court Procedure for a Divorce in the Netherlands

In the Netherlands, mediation is quite prevalent in divorce proceedings. The couples may attempt to reach an agreement on the divorce and its ramifications with the assistance of a mediator and, if needed, their attorneys. A legal agreement called a divorce settlement lays forth these agreements. The settlement may cover property division, maintenance costs, and creche. The settlement reached in mediation may be included in the court’s ruling.

Divorce procedures always begin with a court petition (verzoekschrift). The spouses’ first and surnames and their usual or permanent addresses must be included in this petition. If minor children are involved, the same information has to be given about them. Regarding the divorce, the petitioner may also seek ancillary remedies (nevenvoorzieningen). A private process service agency like Undisputed Legal can help serve your papers in the Netherlands by domestic and international laws.

The petitioner’s attorney must file the petition with the district court (rechtbank). If the petitioner is a resident of the Netherlands, it may be submitted to the court in the judicial district where the petitioner resides. Should one spouse not reside in the Netherlands but the other does, the petition has to be filed with the court in the judicial district where the other spouse resides. The petition should be submitted to the Hague District Court if either spouse resides outside the Netherlands. Our Undisputed Legal process servers are local to the Netherlands and can ensure that your papers are served according to the circumstances of the divorce.

We ensure that we serve all the required documents for a divorce in the Netherlands. This includes [A.] original population register extracts (issued within the last three months) for both spouses, stating nationality, civil status, and, in the case of non-Dutch nationals, the date of entry into the Netherlands; [B.] if one spouse is a Dutch national and the other is not, the date of settlement in the Netherlands; [C.] original birth register extracts (issued within the past three months) for any minor children; [D.] genuine extract from the marriage register (which must be acquired from the town hall where the marriage took place and issued within the previous three months); and [E.] for weddings that occurred overseas, the original marriage certificate or an older extract will do. These documents are imperative to service any divorce documents in the Netherlands.

In some situations covered by treaty or convention, applicants who are not EU citizens may get legal assistance in the Netherlands. A clause included in these accords indicates that subject to the same restrictions as citizens of those other nations, nationals of the contracting states are qualified for free legal assistance in all other participating states. In the Netherlands, a declaration of insufficient means (verklaring van onvermogen) must be sought from the appropriate official at the applicant’s usual residence.

Generally speaking, the courts will always use Dutch divorce law, independent of the spouses’ nationality or place of residence. The divorce law of the Netherlands automatically applies, for instance, if a married couple residing in the Netherlands who are both citizens of Belgium files a divorce petition there. The only situation where this is not the case is when the parties decide which law will govern the divorce. Divorce procedures between spouses of the same nationality may be conducted under the law of their home country rather than Dutch law. So, a Belgian marriage, for instance, may choose to have the Belgian divorce law applied. We at Undisputed Legal have experience serving papers according to international requirements.

Who can Serve Your Papers?

Documents may also be sent and served in the Netherlands via private process servers like those at Undisputed Legal, bailiffs, registered mail, and local agents. However, only if the particular legal document for which service is to be rendered accepts the manner of service under Dutch law is service via these means feasible. Registration post service is restricted to certain acts or court papers. The prices of private process servers and other information may always be obtained from a qualified private process service agency like Undisputed Legal.

Generally speaking, diplomatic channels are only utilized when required by law or treaty or where no current agreements are in place, like a bilateral or convention arrangement. Dutch bailiffs serve court papers most of the time. A Dutch lawyer can set up the appropriate legal documents to serve the country. Legal documents might not count if they are not supplied by Dutch legislation. A defendant or responder may request that the lawsuit be dismissed for improper service. The petitioner or plaintiff may reopen the action against the Dutch defendant in such a situation.

The document in question and who is expected to receive it determine how it should be served. Applications to a Dutch Court and the Notice of his Claim, known as the Writ of Summons (Dagvaarding), are the primary papers the Claimant must serve to a Defendant. An official Dutch bailiff must always serve the Writ of Summons. A Dutch local process server like those at Undisputed Legal may serve a court application.

Though sworn oral testimony that a document was handed to a person might be allowed by a Registrar or Judge, the proof is often in writing. The certificate of service must duplicate the document the bailiff served. Furthermore, our Undisputed Legal servers ensure that a printout of the delivery confirmation that the postal service made available or a copy of the signature that the postal service used when the document was delivered if service was done by registered mail is included.

A copy of the served document signed by the receiving lawyer is necessary if a document was personally served on the Dutch lawyer (in case the client has selected residence at the lawyer’s address). Fundamentally, service (betekening en kennisgeving) is the formal action performed by a bailiff (gerechtsdeurwaarder). They serve the writ (exploot) to the addressee. They sign and record, in writing, how they handed the writ to the addressee on the spot. Service and notification (kennisgeving) naturally fit together, and an excellent private process service agency like Undisputed Legal can ensure we serve your papers appropriately.

Service has not been accomplished if the document is rejected in line with the Service of Documents Regulation and the denial is not corrected. Consequently, we at Undisputed Legal will serve your papers with care. So that the other spouse can respond to inquiries and understand what is required of them, it is essential to disclose the divorce process as soon as feasible. That is why providing service in an acceptable time frame is crucial. In a divorce case, the receiving spouse’s awareness of the matter is vital, and the court must ensure this beyond a reasonable doubt.

Legal professionals like those at Undisputed Legal have often handled divorce matters and know how the procedure goes in the Netherlands. By following these procedures, we can be confident that the defendant will have an opportunity to challenge the grounds of the petition and that we treat both parties fairly.

Written by Undisputed Legal Inc.

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Sources

¹ It is possible to request a ruling from the District Court on additional divorce-related matters at the same time you file:

custody of the children and their place of residence after the divorce;
rights of visits
support of children
marital support (alimony)
split up or settlement of assets and property, including the marital residence

² Any proof the court feels is required may be requested. This may cover papers like:

Identification;
information about residence permits;
premarital agreement (huwelijkse voorwaarden), if one exists;
Tax information, property, assets, and income;
particulars on any children;
a parenting plan, should children be included;

3 The divorce judgment (by the Dutch court) is reported in the special register of births, marriages, and deaths of the municipality of The Hague if the marriage took place overseas and the foreign marriage certificate was not recorded in the Dutch register of births, marriages, and deaths.

⁴ Lawfully speaking, a petition for annulment may be filed on the following grounds:

wedding of the parties despite obstacles to marriage (minimum age requirements, refusal to marry a minor, bigamy, forbidden degree of kinship);
fatigue or mistake;
fake marriage;
one of the couples’ mental illnesses;
incompetence of the registrar or
few witnesses.

⁵ Relevant treaties in this regard include the European Agreement on the Transmission of Applications for Legal Aid (1977), the Hague Convention on International Access to Justice (1980), and the Hague Convention on Civil Procedure (1954).

6 The ‘Brussels IIb Regulation’ is a Council Regulation (EU) No 2019/1111 of 25 June 2019 on the jurisdiction, the recognition and enforcement of decisions in matrimonial matters, and the matters of parental responsibility (recast) that will be in force in the EU Member States as of August 1, 2022. Regulation (EC) No 1347/2000 is replaced by the ‘Brussels IIa Regulation,’ Council Regulation (EC) No 2201/2003 of 27 November 2003, covering jurisdiction and the recognition and execution of judgments in marriage affairs and the problems of parental responsibility

⁷ Book 10 of the Dutch Civil Code (Burgerlijk Wetboek) became operative on January 1, 2012. Conflict of law regulations in Book 10 of the Civil Code specify the relevant legislation.

⁸ It should be highlighted that the Service of Documents Regulation has a direct impact in that an enforceable order is regarded to have been served only after it has been lawfully served in the receiving Member State.

⁹ If the language of the receiving Member State is selected, there is no right of refusal, and service cannot be prevented. Refusal of service may be rectified by providing a translation to the recipient.

¹0 The addressee may only reject service on the reasons outlined in Article 12 of the Service of Documents Regulation