The Dutch Courts on the Law Applicable to Matrimonial Property Regimes
This post was prepared by Nadia Rusinova (The Hague University of Applied Sciences).
In a world where marriages often transcend borders and cultural lines, the challenges of international family law become ever more evident. Two recent Dutch court decisions provide compelling insights into how the courts navigate complex cases involving divorce and marital property regimes with ties to non-EU countries. These cases highlight the nuanced and complex nature of international family law, where courts must balance the legal traditions and principles of multiple jurisdictions with the principles of equity and fairness.
Iranian-Dutch Case
The first case concerns Iranian-Dutch spouses. They married in 2014 in Iran and moved to the Netherlands in 2015, having their child born there in 2016. Since 2020 they are also both Dutch nationals. The wife seeks divorce before the Dutch court and requests application of Iranian law to the matrimonial property regime, which the husband disputes.
In regard to the divorce and parental responsibility, the court holds that since the parties and the child have their habitual residence in the Netherlands, the Dutch court has jurisdiction under Article 3 and Article 7 of Brussels II ter Regulation. Pursuant to Article 5 of Matrimonial Property Regulation, the court holds it has jurisdiction to rule on the division of the marital property, as it has jurisdiction over the divorce application. The main question remaining is which law is applicable to the matrimonial property regime – Iranian or Dutch, and did a change in the applicable law occur since the conclusion of the marriage.
In its decision (ECLI:NL:RBDHA:2023:22043) the court finds that the parties haven’t chosen applicable law before their marriage. Therefore, 1978 HCCH Convention on the Law Applicable to Matrimonial Property Regimes is to be applied – a HCCH instrument, ratified by only three states, that being France, Luxembourg and the Netherlands. In the Netherlands it applies to marriages solemnised after 1 September 1992. Pursuant to Article 4, paragraph 2, sub b of this Convention, the court therefore determines that Iranian law applies to the matrimonial property regime from the date of the marriage since at the time of the marriage the parties had common Iranian nationality.
However, subsequently both parties acquired Dutch nationality and have resided in the Netherlands since 2015. The court then reaches the conclusion that from the moment of the acquisition of Dutch nationality and habitual residence in the Netherlands by both spouses, a change in the applicable law occurred. The wife is a Dutch national since December 22, 2020, and on the grounds of Article 7, paragraph 2, sub 1 of the 1978 HCCH Convention, Dutch law applies to the matrimonial property regime from that moment on. Article 8(1) of the 1978 HCCH Convention prevents any retrospective effect of such change, and for this reason Iranian law continues to apply to the assets that belonged to the parties before that change.
Morrocan-Dutch Case
The second case is a rather extraordinary one. It deals with the question which is the applicable law to the matrimonial property regime of the spouses – Dutch or Moroccan, and how should “fairness” be achieved. If it was the Dutch law, the wife would receive 186 000 EUR as a result of the division of the assets, while if it was Moroccan law – only 77 000 EUR.
The spouses have Dutch and Moroccan nationalities. They married in 1983 in Morocco, but have lived in the Netherlands since their marriage. The husband requests the Dutch court to grant divorce between the parties and to declare that the matrimonial property regime of the parties is governed by Moroccan law (based on Dutch conflict of law rule). The wife contests only the latter claim and asks the court to apply Dutch law to their matrimonial property regime. She argues that application of Moroccan law is unacceptable against the standards of reasonableness and fairness as it is “unacceptable if she were to be left with virtually nothing after forty years of marriage” (Note: for marriages concluded before 1 January 2018, the statutory matrimonial regime under the Dutch law is universal community of property). The unacceptability criterion was claimed to stem from the Dutch Supreme Court decision in Chelouche/Van Leer.
In order to substantiate the unacceptability of the application of Moroccan law in the present case, the woman has firstly argued that marriage is most closely linked to Dutch law. The couple, for over forty years of marriage, resided in the Netherlands, had children who were born and raised in the Netherlands, took out a mortgage on the house the husband owned prior to their marriage, always acted as if they were in a universal community of property regime, and did not maintain strictly separate finances. The husband has not paid the dowry owed under Moroccan law and she had not previously requested it, assuming that all assets were shared in a universal community of property.
In the decision (ECLI:NL:RBGEL:2024:1025) the court attaches no value to the woman’s arguments, stating that the question of what the first habitual residence after marriage was arises only when there is no common nationality. If this cannot be determined, then the question of which law the marriage is most closely linked to is to be addressed, taking all circumstances into account. The fact that these two criteria would both lead to the application of Dutch law in this case is not in dispute, but that in itself is no reason to ignore the connecting factor of common Moroccan nationality.
Moreover, when concluding the marriage, it was not unforeseeable for the woman that Moroccan law might apply. The woman could presume that because the parties had Moroccan nationality and were married in Morocco, whereby a dowry was agreed (and partly paid) in accordance with Moroccan tradition. There is therefore indeed a close link between the parties with Morocco and Moroccan law. In addition, the parties each had their own bank account, from which they each paid household costs which could be contrary to the argument they lived as in community of property.
The court further stipulates that the woman will not be left with “virtually nothing”. Her total acquisition under the Moroccan law ultimately will amount to at least € 77,400. If the Dutch law would be applicable and there had been universal community of property, the woman would have received approximately € 186,000, but the mere fact that the woman would have a greater benefit is insufficient to conclude that the application of Moroccan law is unacceptable.