Dutch Civil Code

Book 10 Private International Law

Title 10.3 Marriage

Section 10.3.1 Contracting and recognition of the validity of marriages

Article 10:27 Scope of application
The present Section (Section 10.3.1) implements the Convention on Celebration and Recognition of the Validity of Marriages, concluded at the Hague on 14 March 1978 (Treaty Series 1987,137). It is applicable to the contracting of marriages in the Netherlands if, in relation to the nationality or residence of the prospective spouses, a choice has to be made with regard to the question which national law governs the legal requirements for entering into a marriage, and it is applicable also to the recognition of marriages contracted abroad. It does not apply to the power (competence) of the Registrar of Civil Status.

Article 10:28 Recognition of the contracting of a marriage
A marriage is contracted:
a. if each of the prospective spouses meets the requirements for entering into a marriage set by Dutch law and one of them is exclusively or also of Dutch nationality or has his habitual residence in the Netherlands, or;
b. if each of the prospective spouses meets the requirements for entering into a marriage of the State of his nationality.

Article 10:29 Contracting of a marriage in conflict with public order
- 1. Irrespective of what is provided for in Article 10:28, no marriage can be contracted if the contracting of that marriage could not be accepted on the basis of Article 10:6 (i.e. incompatible with Dutch public order), and in any case if:
a. the prospective spouses have not reached the age of fifteen years;
b. the prospective spouses are related to each other by blood or by adoption in the direct line or, by blood, as brother and sister;
c. the free consent of one of the prospective spouses is missing or the mental capacity of one of them is so disturbed that he is unable to determine his own will or to understand the significance of his declarations;
d. the marriage would be in conflict with the rule that a person may only be united in marriage with one other person at the same time;
e. the marriage would be in conflict with the rule that a person who wants to enter into a marriage may not simultaneously be registered as a partner in a registered partnership.
- 2. The contracting of a marriage cannot be refused on the ground that there is an impediment to this marriage under the law of the State of which one of the prospective spouses has the nationality, if that impediment cannot be accepted on the basis of Article 10:6 (i.e. if the impediment itself is contrary to Dutch public order).

Article 10:30 Necessary formal requirements in the Netherlands for the contracting of a marriage
In terms of formal requirements, a marriage can only be contracted validly in the Netherlands in front of a Registrar of Civil Status and with due observance of Dutch law, on the understanding, however, that foreign diplomatic and consular civil servants may participate in the contracting of a marriage in accordance with the requirements of the law of the State they represent, provided that none of the involved spouses is or is also of Dutch nationality.

Article 10:31 Recognition of foreign marriages
- 1. A marriage that is contracted outside the Netherlands and that is valid under the law of the State where it took place or that has become valid afterwards according to the law of that State, is recognised in the Netherlands as a valid marriage.
- 2. A marriage contracted outside the Netherlands in front of a diplomatic or consular civil servant in accordance with the requirements of the law of the State that is represented by this civil servant, is recognized in the Netherlands as a valid marriage, unless it was not allowed to contract such a marriage in the State where the marriage took place.
- 3. For the purposes of paragraph 1 and 2, the word ‘law’ includes rules of private international law.
- 4. A marriage is presumed to be valid if a marriage certificate has been issued by a competent authority.

Article 10:32 Recognition of a foreign marriage incompatible with Dutch public order
Irrespective of what is provided for in Article 10:31, a marriage that is contracted outside the Netherlands shall not be recognised in the Netherlands where such recognition obviously would be incompatible with Dutch public order.

Article 10:33 Applicability of Articles 10:31 and 10:32 to principal and preliminary issues
Articles 10:31 and 10:32 shall apply, regardless whether a decision has to be made about the recognition of the validity of a marriage as a principal issue or as a preliminary question in connection with another principle issue.

Article 10:34 Transitional law
- 1. The present Section (Section 10.3.1) does not apply to the recognition of the validity of marriages that have been contracted prior to 1 January 1990.
- 2. Without prejudice to Article 10:6, marriages that have been contracted after 1 January 1990 and prior to 15 January 1999 in front of foreign diplomatic and consular civil servants in accordance with the law of the State represented by them, are deemed to be valid if one of the spouses possesses the Dutch nationality exclusively or also and the other spouse possesses the nationality, either exclusively or also, of the State represented by the diplomatic or consular civil servants.
- 3. Article 10:30 applies to marriages contracted after 15 January 1999 in front of foreign diplomatic and consular civil servants.

Section 10.3.2 Legal relations between spouses mutually

Article 10:35 Law applicable to personal legal relations between the spouses
- 1. Personal legal relations between spouses themselves are governed by the law designated by the spouses prior to or during the marriage, whether or not under a simultaneous change of an earlier made designation of the law applicable.
- 2. The spouses can designate only one of the following legal systems:
a. the law of the State of the common nationality of the spouses, or;
b. the law of the State where they both have their habitual residence.
- 3. In terms of formal requirements, a designation as meant in the present Article shall be valid if the formal requirements for such designation have been observed of the law which is applicable to the marital property regime of the spouses.

Article 10:36 Designation by law when no choice is made
In the absence of a designation of the applicable law by the spouses, personal legal relations between spouses themselves are governed:
a. by the law of the State of the common nationality of the spouses, or in the absence of a common nationality,
b. by the law of the State where they both have their habitual residence, or in the absence thereof;
c. by the law of the State with which they are, taken all circumstances into account, most closely connected.

Article 10:37 Common nationality
If spouses have a common nationality, then, for the purpose of Article 10:36, their common national law shall be the law of that nationally, irrespective of whether they both or one of them has another nationality also. Where the spouses possess more than one common nationality, they are deemed not to possess a common nationality for the purpose of the present Article.

Article 10:38 Change in designation made by parties or by law
If a designation as meant in Article 10:35 or a change in the circumstances mentioned in Article 10:36 leads to the application of another law than the one that was applicable prior to that, then that other law shall be applicable as of the moment of that designation or change.

Article 10:39 Law applicable to obligations regarding costs of the household
The question whether and to what extent a spouse is liable for an obligation which the other spouse has entered into on behalf of the ordinary household, will be governed, if that other spouse and his counterparty both had their habitual residence in the same State at the moment on which they entered into that obligation, by the law of that State and, in the absence of such situation, by the law applicable to the obligation.

Article 10:40 Legally required approval of the other spouse for performing juridical acts
The question whether a spouse needs the other spouse's approval for the performance of a juridical act, and if so, in which form this approval should be granted, and whether the required approval can be replaced by a decision of a court or another authority, and which legal effects arise when the required approval is lacking, is governed by the law of the State where the other spouse has his habitual residence at the moment on which the juridical act in question was performed.

Article 10:41 Law applicable to the marital property regime or to the personal legal relations is indifferent
The provisions of Articles 10:39 and 10:40 are applicable irrespective of the law which governs the marital property regime of the spouses and irrespective of the law applicable to the personal legal relations between the spouses mutually.

Section 10.3.3 The marital property regime

Article 10:42 The Hague Marital Property Convention
For the purpose of the present Section (Section 10.3.3), the Hague Marital property Convention 1978 shall mean the Convention on the Law Applicable to Matrimonial Property Regimes, concluded at the Hague on 14 March 1978 (Treaty Series 1988, 130).

Article 10:43 Law applicable to marital property regime
In the absence of a designation of the applicable law under the Hague Marital Property Convention 1978, except in the situation meant in Article 5, paragraph 2, or Article 7, paragraph 2, of that Convention, the marital property regime of spouses who both, at the moment that they entered into their marriage, possessed the Dutch nationality, shall be governed by Dutch law, irrespective of whether they both or one of them has another nationality also. Where both spouses have more than one common nationality, they are deemed not to have a common nationality for the purpose of the present Article.

Article 10:44 Legal effects towards third persons
The legal effects of the marital property regime in respect of legal relations between the spouses on the one hand and a third person on the other, are governed by the law applicable to the marital property regime.

Article 10:45 Registration that foreign law is applicable to the marital property regime
A spouse whose marital property regime is governed by foreign law may request for the registration of a notarial deed in the public register meant in Article 1:116, containing a statement that the marital property regime is not governed by Dutch law.

Article 10:46 Protection of third persons against application of foreign marital property regime
- 1. A third person who has performed a juridical act during the marriage with a spouse whose marital property regime is governed by foreign law, may also after the dissolution of the marriage, provided that he as well as both spouses had their habitual residence in the Netherlands at the moment that this juridical act was performed, take recourse for his debt-claim resulting from that juridical act against the spouses as if there would exist a general community of property according to Dutch law.
- 2. Paragraph 1 does not apply if the third person at the moment on which he performed the juridical act knew or ought to have known that the marital property regime of the spouses was governed by foreign law. This is deemed to be the case if the juridical act was performed at a moment on which fourteen days have passed since the notarial deed meant in Article 10:45 was registered in the public register referred to in that Article.

Article 10:47 Advantage enjoyed in connection with the law applicable to an asset abroad
If one of the spouses has enjoyed an advantage over the other spouse due to the fact that an asset, located abroad, is governed by the law of a State that has been designated under the rules of private international law of the State where this asset is located, while this advantage would not have been enjoyed under the law designated on the basis of the provisions of the present Book (Book 10), then the other spouse may claim an equalisation or compensation of that advantage at the final settlement of the account made between the spouses in connection with the ending or alteration of their marital property regime.

Article 10:48 Application of Article 1:92(3) when recourse is taken against the spouses
Article 1:92, paragraph 3, shall apply only where recourse is taken within the Netherlands against:
a. a spouse whose marital property regime is governed by Dutch law, or;
b. a spouse against whom recourse may be taken pursuant to the provisions of Article 10:46.

Article 10:49 [repealed on 01-01-2012]

Article 10:50 Applicability of Article 1:131 (furnishing evidence of an entitlement to an asset)
The provisions of Article 1:131 are applicable even when the marital property regime of the spouses is governed by foreign law.

Article 10:51 Right to equalisation of accrued pension entitlements
Whether a spouse is entitled, at the occasion of a divorce or legal separation, to a part of the pension rights accrued on behalf of the other spouse, is governed by the law applicable to the marital property regime of the spouses, except where it concerns Article 1, paragraph 7, of the Act on the Equalisation of Pension Entitlements after Separation.

Article 10:52 Transitional law
- 1. The present Section (Section 10.3.3) is applicable to the marital property regime of spouses who have entered into their marriage after 1 September 1992.
- 2. In derogation from paragraph 1, Article 10:51 shall be applicable to the equalisation of pension rights of spouses who are legally separated after 1 March 2001 or whose marriage has been dissolved after 1 March 2001.
- 3. The provisions of the present Section (Section 10.3.3) regarding the designation of the applicable law are applicable as well to the marital property regime of spouses who entered into their marriage prior to 1 September 1992 and who, after that date, have designated the law applicable to their marital property regime.

Article 10:53 Designation of applicable law before 1 September 1992
A designation by the spouses of the law applicable to their marital property regime or a change of such designation made prior to 1 September 1992, cannot be regarded as invalid on the sole ground that such designation at that time was not regulated by legislation. This, however, does not apply to situations in which the provisions of the Convention on the Effects of Marriages, concluded at the Hague on 17 July 1905 (Treaty Series 1912, 285), were applicable to the marital property regime of the spouses and the designation of the applicable law was made prior to 23 August 1977.*)

*) This is the day that the aforementioned Convention, containing rules in regard of conflicts of law with respect to the legal effects of a marriage for the rights and obligations between spouses within their personal legal relations and for their property, ceased to be in force for the Netherlands.

Section 10.3.4 Dissolution of marriage and legal separation

Article 10:54 Implementation of the Hague and Luxembourg Convention
The present Section (Section 10.3.4) also implements the:
a. Convention on the Recognition of Divorces and Legal Separations, concluded at the Hague on 1 June 1970 (Treaty Series 1979, 131), and;
b. Convention on the Recognition of Decisions Relating to the Validity of Marriages concluded at Luxembourg on 8 September 1967 (Treaty Series 1979, 130).

Article 10:55 Exclusive jurisdiction of Dutch courts within the Netherlands
Within the Netherlands only a Dutch Court may decree the dissolution of a marriage or a legal separation.

Article 10:56 Applicable law
- 1. Whether a dissolution of a marriage or a legal separation can be decreed and on which grounds, shall be determined by Dutch law.
- 2. In derogation from paragraph 2, the law of the State of the foreign common nationality of the spouses shall be applicable in legal proceedings:
a. if parties jointly have made a choice for that law or if one of the spouses has made a choice for that law and the other spouse has not made any objections against this.
b. if one of the spouses has made a choice for that law and both spouses really have a social bond with the State of their common nationality.
- 3. A choice of law as referred to in the previous paragraph must be made explicitly or appear otherwise sufficiently clear from the wording of the application (request) or counter-plea.

Article 10:57 Recognition of foreign decisions regarding a dissolution of a marriage or a legal separation
- 1. A dissolution of a marriage (divorce) or legal separation decreed outside the Netherlands after a proper administration of justice is recognized in the Netherlands if it has been decreed by a decision of a court or other authority to whom jurisdiction on this matter has been granted.
- 2. A dissolution of a marriage (divorce) or legal separation decreed outside the Netherlands, that does not meet one or more of the conditions stated in the previous paragraph, shall nevertheless be recognized in the Netherlands if it is clear that the other party in the foreign legal proceedings explicitly or tacitly during these proceedings has consented to the dissolution of the marriage or legal separation or if it is clear that the other party after those proceedings has accepted the dissolution of the marriage (divorce) or the legal separation.

Article 10:58 Repudiation of the wife by the husband
A dissolution of a marriage (divorce) that has been proclaimed outside the Netherlands solely by means of a one-sided (unilateral) declaration of the man shall be recognized if:
a. the dissolution of the marriage (divorce) in this form reflects the national law of the man who has dissolved the marriage one-sided;
b. the dissolution has legal effect in the State where it took place, and;
c. it is apparent that the wife explicitly or tacitly has consented to or has accepted the dissolution of her marriage (divorce).

Article 10:59 Conflict with Dutch public order
Despite of Articles 10:57 and 10:58, the recognition of a dissolution of a marriage proclaimed outside the Netherlands shall be refused if such recognition is obviously incompatible with public order.