Filing for divorce

(Divorce) filing for divorce

The number of marriages that end prematurely has been increasing for decades. In 2020, 24,000 divorces were pronounced; in addition, 2,400 registered partnerships were dissolved. Although it is becoming increasingly "normal" to divorce, it cannot be said that divorce is becoming easier.

Divorce has a huge impact on the family, children, finances, housing and retirement. But many people also worry about the effects of divorce in terms of loneliness, or the fear of being alone. People who divorce face guilt and grief for loss. Children of divorcing parents may feel that they are to blame for the divorce, and in some cases a loyalty conflict may even arise. These social emotional consequences - not to mention the financial consequences - make divorce a profound event in a person's life, where proper counseling is of utmost importance.

Divorce, now what?

Most people in the Netherlands divorce around the age of 44. Once this decision has been made, a number of choices will have to be made and you will need the best advice. A divorce in good consultation, is recommended in almost all cases. In the Netherlands, most people separate in harmony (39%). Although disagreements often arise, only 6% of people conduct divorce proceedings by mutual agreement. For a divorce, you need a lawyer. He or she can also be a mediator and guide you through the divorce proceedings together. If you prefer to have your own lawyer, you can opt for a four-way meeting where you sit down with your lawyer and your ex-partner with his/her lawyer. Good guidance is essential because there are many issues to be settled in a short period of time. Court proceedings are costly and time-consuming. If an appeal is filed, then it can add up to several years.

Divorce mediator

Mediation involves making agreements under the guidance of a lawyer-mediator, which are then recorded by the court. Mediation is not only financially more advantageous, it also takes less time than proceedings. The outcome is also often more satisfactory, because customization can be provided. In addition, mediation addresses the emotional aspects of the divorce.

If mediation is not an option, you can opt for a form of cooperation through a four-way meeting or Collaborative Practice, also called the consultative divorce. The divorcing partners each have their own attorney. In consultative divorce, there is additionally a litigation counselor, often a psychologist, who can guide you through the emotional aspects. In recent years we have seen a declining trend in the number of proceedings. Whereas in 2011 it was 31%, in 2019-2020 divorcing partners chose court proceedings in only 6%. Often these cases involved issues that required intervention by youth welfare or police.

The divorce proceedings

If a divorce by mutual agreement is no longer an option, the spouses will each have to approach their own lawyer to guide them through the divorce proceedings. Court proceedings are costly and time-consuming. With a divorce, you should keep in mind that proceedings can take at least a year. If an appeal is filed, it may take up to several years.

Provisional provisions

Once the decision to divorce has been made, disputes may arise that need to be resolved acutely. Who will stay in the home for the time being? How do we divide the care of the children? These issues can be submitted to the court through summary proceedings. The issues addressed in these so-called preliminary injunction proceedings are limited.

The following provisional provisions can be made:

• determine that one spouse is entitled to the use of the marital home;
• order that property serving to/by? daily use be made available to one of the spouses;
• determining that the children be entrusted to one of the spouses, as well as establishing a contribution to the costs of the care and upbringing of the children;
• establish an arrangement for the division of care and upbringing duties;
• determine an arrangement on providing information, or consulting the spouses about the children;
• establishing a spousal maintenance contribution.

In principle, preliminary injunctions are effective for the duration of the divorce proceedings. There is no possibility of appeal against a court order. However, under very special circumstances, modification of the court order can be ordered.

Petition and defense

Divorce proceedings begin with a petition for divorce. This petition, in addition to the divorce petition, generally includes requests for ancillary relief, such as determination of alimony or a care arrangement. The petition is addressed to the court and must be served on the other spouse by a bailiff. Once the petition is served and filed with the court, deadlines begin to run. Within six weeks of receiving the petition, a defense may be filed by the spouse. In this statement of defense, the spouse can also request his or her own ancillary relief (called independent requests). These independent requests may also be defended again within six weeks.

Mediation offer

Once all written rounds have taken place, the court will make the parties a mediation offer. If the parties comply with this offer, the court will appoint a mediator in consultation with the parties to assist the parties in resolving the conflict (see mediation above). If the offer is not complied with, a hearing will be scheduled. This can take several months and depends on the court's schedule.

The hearing

At least ten days before the oral hearing, relevant information can be sent to the court one last time. This will include the most current financial data for the determination of alimony or recent documents relating to the division/settlement.

Depending on the complexity of the divorce, the sitting time can vary from three quarters of an hour to several hours. Family law cases are always private, so neither party may bring people into the courtroom. In the courtroom are the judge and the clerk, who takes notes of what is discussed. In certain cases, the Child Protection Council is also present.

During the hearing, the parties are given the opportunity to comment further on the final documents. The judge has read the court documents and will also have questions about them. Not only lawyers will be given the floor, but also the parties themselves will be given the opportunity to say something.

Hearing children

In cases involving children, such as access and custody, the judge will hear children 12 years of age or older. In child support cases, minor children aged 16 and older will be heard. When hearing the children, the parents are not present, but the judge will inform the parents of what has been discussed during the hearing.

Order

After the hearing, the court takes about six weeks to issue an order. The order declares the divorce and makes a decision regarding the remaining requests. It may happen that the court issues an interlocutory decree so that certain disputes require further litigation. Naturally, this will prolong the divorce proceedings.

Registration

Once the judge has pronounced the divorce, the marriage is not yet dissolved. The dissolution takes place when the divorce decree is registered in the civil registry of the municipality where the marriage was celebrated. This registration must take place within six months after the divorce decree becomes irrevocable. The decree becomes irrevocable if the parties agree or if no appeal is lodged within three months. If the divorce is not registered in time, all the consequences of the marriage will revive and the proceedings will have to be repeated if a divorce is sought.

Appeal

If you disagree with the judge's decision, you have the option to appeal the order. The notice of appeal (the appeal document), must be filed with the court within three months after the court has issued the order. This notice of appeal can again be defended in writing. If the defendant also wishes to challenge a decision of the court, this can be done through incidental appeal. Once the written rounds have taken place, an oral hearing will be scheduled. On appeal, the case will be heard by three judges.

Cassation

The Supreme Court is the highest judicial body in the Netherlands. Cassation proceedings at the Supreme Court are therefore the last resort to have a dispute adjudicated. However, the possibilities at the Supreme Court are very limited. The Supreme Court does not examine the facts, but only assesses whether the law has been correctly applied and whether no procedural rules have been violated. This limited review framework means that cassation is possible only in exceptional situations. The Supreme Court may dismiss the case, set aside (cassate) the order of the court of appeals, and, in a few cases, decide the case itself. If the court's order is set aside, the Supreme Court may refer the case (back) to the court of appeals, which will reassess the case taking into account the guidelines given by the Supreme Court in its decision.

Our lawyers are based in The Hague

Are you looking for a family law attorney? You are welcome to visit our office in The Hague. Our family law attorneys possess the right knowledge and expertise to assist you. Although our office is located in The Hague, we operate throughout the Netherlands.

Need legal support?

For more information, please contact Petra Beishuizen or someone else from our family law team. They will be happy to assist you.