Dutch Civil Code

Book 10 Private International Law

Title 10.5 Descendancy

Section 10.5.1 Legal familial relationship by birth

Article 10:92 Legal familial relationships arising from birth
- 1. Whether a child by birth has entered into a legal familial relationship with the woman from which it was born and with the man to which she is or was married, shall be determined by the law of the State of the common nationality of the woman and the man or, in the absence of such common nationality, by the law of the State where the woman and the man each have their habitual residence or, if even such a common habitual residence is absent, by the law of the State of the habitual residence of the child.
- 2. If the man and woman have one common nationality, then for the purpose of paragraph 1 their national law shall be the law of that nationality, irrespective of whether they both or one of them has another nationality also. Where the woman and man have more than one common nationality, they shall be deemed not to have a common nationality for the purpose of paragraph 1.
- 3. Decisive for the purpose of paragraph 1 is the time of birth of the child or, if the marriage of the child’s parents has been dissolved prior to this moment, the time of the dissolution of that marriage.

Article 10:93 Annulment of legal familial relationships by a denial of (marital) paternity
- 1. Whether legal familial relationships as meant in Article 10:92 can be annulled through legal proceedings for an acknowledgement of a denial of paternity, shall be determined by the law which according to that Article is applicable to the existence of that relationship.
- 2. When pursuant to paragraph 1 a denial of paternity is not or no longer possible, the court may apply another law than the one mentioned in Article 10:92, or apply the law of the State of the habitual residence of the child at the time of the denial, or apply Dutch law.
- 3. Article 1:212 shall be applicable regardless which law has to be applied pursuant to paragraph 1 or 2 within the legal proceedings meant in those paragraphs.
- 4. Whether legal familial relationships between a child and the man who is or was married to the child’s mother can be annulled by a declaration of the mother in which she denies paternity of that man, made in front of a Registrar of Civil Status, shall be determined by the law which according to Article 10:92 is applicable to the existence of these relationships. Without prejudice to paragraph 1 and 2, such declaration can be made only if the man who is or was married to the child’s mother is still alive at that time and he approves the denial, while at the same time legal familial relationship between the child and another man are entered into or established.

Article 10:94 Entering into legal familial relationships by birth outside a marriage
- 1. Whether by birth legal familial relationships arise between a woman and the child which was born from her outside a marriage, shall be determined by the law of the State of the nationality of the woman. Where the woman possesses the nationality of more States, decisive shall be the national law according to which such relationships arise. Such relationships shall arise in any event if the woman has her habitually residence in the Netherlands.
- 2. Decisive for the purposes of paragraph 1 is the time of birth.
- 3. Paragraph 1 and 2 do not affect the application of the Convention relating to the Establishment of Maternal Affiliation of Natural Children concluded at Brussels on 12 September 1962 (Treaty Series 1963, 93).

Section 10.5.2 Legal familial relationships through recognition or a judicial determination of paternity

Article 10:95 Arising of legal familial relationships through a recognition of the child
- 1. Whether a recognition by a man establishes legal familial relationships between him and a child, shall, with regard to the ability of the man to proceed to such recognition and to the conditions for doing so, be determined by the law of the State of which the man has the nationality. If according to that law a recognition is not or no longer possible, then the law of the State of the habitual residence of the child shall be decisive. If a recognition also according to that law is not or no longer possible, then the law of the State of which the child has the nationality shall be decisive. If a recognition also according to that law is not or no longer possible, then the law of the State of the habitual residence of the man shall be decisive.
- 2. Irrespective of the law that is applicable pursuant to paragraph 1, Dutch law will determine whether a Dutch married man is a person who is able to recognize a child of a woman who is not his spouse, and this irrespective of whether the man possesses another nationality besides the Dutch nationality.
- 3. The certificate of recognition and the later mark of recognition both mention the law which has been applied pursuant to paragraph 1 or 2.
- 4. Irrespective of the law that is applicable pursuant to paragraph 1, the law of the State of which the mother or, respectively, the child has nationality, shall apply to the approval of the recognition by the mother or, respectively, by the child. Where the mother or, respectively, the child has the Dutch nationality, Dutch law will be applicable. If a recognition is unknown within the applicable law, then the law of the State of the habitual residence of the mother or, respectively, the child will be applicable. The law applicable to the approval determines as well whether, in the absence of such approval, this approval may be replaced by a judicial decision.
- 5. Decisive for the purposes of the preceding paragraphs are the time of recognition and the time of the approval.

Article 10:96 Annulment of the recognition of a child
Whether and how the recognition of a child may be annulled, shall be determined, with regard to the ability of the man to proceed to such recognition and to the conditions for doing so, by the law that has been applied pursuant to Article 10:95, paragraph 1 and 2, and, with regard to the approval by the mother or, respectively, by the child, by the law which is applicable pursuant to Article 10:95, paragraph 4.

Article 10:97 Judicial determination of paternity
- 1. Whether and under which conditions the paternity of a man may be judicially determined, shall be determined by the law of the State of the common nationality of the man and the mother or, in the absence of such a common nationality, by the law of the State of their common habitual residence or, if even such a common habitual residence is absent, by the law of the State of the habitual residence of the child.
- 2. When the man and the woman have a common nationality, then for the purpose of paragraph 1 their common national law shall be the law of that nationality, irrespective of whether they both or one of them also possesses another nationality. Where the man and woman possess more than one common nationality, they are deemed not to have a common nationality for the purpose of the present Article.
- 3. Decisive for the purpose of paragraph 1 is the time of submission of the request (application). When the man or the mother has already died at that moment and a common nationality is absent at the time of death, the law of the State of the common habitual residence of the man and the mother at the time of death will be applicable or, if such a common habitual residence is absent, the law of the State of the habitual residence of the child at the time of submission of the request (application).
- 4. Where the man and woman have more than one common nationality, they shall be deemed not to have a common nationality for the purpose of the present Article.

Section 10.5.3 Legal familial relationships by legitimation

Article 10:98 Legal familial relationships arising from legitimation
- 1. Whether a child as a result of a marriage of both or one of its parents or as a result of a later given decision of a court or another competent authority has been legitimated, shall be determined by the Convention on Legitimation by Marriage signed at Rome on 10 September 1970 (Treaty Series 1972, 61).
- 2. Where the application of paragraph 1 does not lead to legitimation, legal familial relationships can be established by legitimation under the law of the State of the habitual residence of the child.
- 3. Paragraph 1 and 2 do not apply if one of the parents is of Dutch nationality and the marriage has not been contracted validly in accordance with the provisions of Articles 10:30 and 10:31.
- 4. Decisive for the purpose of the preceding paragraphs is the time of marriage of the parents or, where it concerns the arising of legal familial relationships through a decision of a court or another competent authority, the time of submitting the application or legal action.

Section 10.5.4 The content of legal familial relationships arising from descendancy

Article 10:99 Determination of the content of legal familial relationships
- 1. Without prejudice to what has been specified for particular matters, the content of the legal familial relationships between a child and its parents shall be determined by the law of the State of the common nationality of the parents or, in the absence of such common nationality, by the law of the State of their common habitual residence or, where also such common habitual residence is absent, by the law of the State of the habitual residence of the child.
- 2. When legal familial relationships only exist between the child and its mother, the content of these legal familial relationships shall be determined by the law of the State of the common nationality of the child and its mother. In the absence of such a common nationality, it shall be determined by the law of the State of the habitual residence of the child.
- 3. When the parents, respectively, the mother and the child have a common nationality, then for the purpose of paragraph 1, respectively, paragraph 2 their national law shall be the law of that nationality, irrespective of whether they both or one of them has another nationality also. Where the parents, respectively, the mother and the child posses more than one common nationality, they shall be deemed not to have a common nationality for the purpose of the present Article.

Section 10.5.5 Recognition of foreign court decisions and legal facts

Article 10:100 Recognition of foreign judicial decisions in the Netherlands
- 1. A foreign irrevocable judicial decision which on the basis of descendancy has established or changed legal familial relationships, is recognized in the Netherlands by operation of law, unless:
a. the foreign court had no jurisdiction because obviously there was no sufficient connection with the legal sphere of that country;
b. no proper investigation or proper administration of justice has preceded this foreign judicial decision, or;
c. the recognition of that foreign judicial decision would obviously be incompatible with public order.
- 2. The recognition of the foreign judicial decision cannot be refused on the ground of incompatibility with public order, not even when a Dutch citizen is involved, for the sole reason that another law has been applied to this decision than the law which would have been applicable according to the provisions of the present Title (Title 10.5).
- 3. The foreign judicial decision is not open for a recognition if it is incompatible with a final and binding judicial decision of a Dutch court regarding the establishment or alteration of the same legal familial relationships.
- 4. The preceding paragraphs do not affect the application of the Convention meant in Article 10:98, paragraph 1.

Article 10:101 Recognition of foreign legal facts and juridical acts in the Netherlands
- 1. The provisions of Article 10:100, paragraph 1, under point (b) and (c), and paragraph 2 and 3, apply accordingly to foreign legal facts and foreign juridical acts that on the basis of familial descendancy have established or changed legal familial relationships, provided that these facts or acts have been laid down in a certificate issued by a competent authority in accordance with local regulations.
- 2. A ground for refusal as referred to in Article 10:100, paragraph 1, under point (c), arises in any event with regard to the recognition of a child:
a. if the child has been recognized by a person of Dutch nationality who under Dutch law would not have been a person who is able to recognize the child;
b. if, with regard to the approval of the mother or the child, the requirements that are set for this purpose by the law applicable pursuant to Article 10:95, paragraph 4, are not met, or;
c. if the certificate or document apparently relates to a sham transaction.
- 3. The preceding paragraphs do not affect the application of the Convention meant in Article 10:98, paragraph 1.

Section 10.5.6 Transitional law

Article 10:102 Transitional law
The present Title (Title 10.5) applies to legal relationships which are established or changed after 1 January 2003 as well as to the recognition of legal relationships established or changed abroad after 1 January 2003.