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
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
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
Article 10:33 Applicability of Articles 10:31 and 10:32 to principal and
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
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
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
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
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
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
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
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
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
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.