A marriage can end in different ways. Divorce is one of the ways to end a marriage. The first step in achieving a divorce will be to file a divorce petition. Since a recent amendment to Book 1, submitting a divorce petition has far-reaching consequences if one is married in community of property or if there is a limited marital community of property between spouses.
The divorce petition
Grounds for divorce: permanent disruption
The only ground under Dutch law for requesting a divorce is irretrievable disruption. There is permanent disruption if the spouses can no longer live together and no improvement is expected in the future.
Joint divorce petition
If the petition for divorce is submitted jointly by both spouses, the judge will assume the presence of irretrievable breakdown. The judge will not conduct any further investigation and the spouses do not have to justify the permanent disruption.
Unilateral divorce petition
However, if the request for divorce is one-sided, the judge will investigate whether there is permanent disruption. The spouse who wants to effectuate the divorce without the cooperation of the other spouse will therefore have to justify the permanent disruption. Sustainable disruption is not about blame. Which of the spouses is to blame for the failure of the marriage is irrelevant.
Consequences of filing a divorce petition
Change to Book 1
At the beginning of 2012, there was a major change in matrimonial property law. Among other things, Article 1:119 of the Dutch Civil Code has been deleted and Article 1:87 of the Dutch Civil Code has been introduced with regard to compensation rights. In addition, it has been introduced that submitting a divorce petition will result in the marital community being dissolved. Until January 1, 2012, the marital community was only dissolved after the court’s order had been registered. To the layman, the dissolution of the marital community at the time of filing the divorce petition may not seem like a big difference, but shouldn’t the community be dissolved at some point?
Advantage: including inheritance law acquisitions
A major advantage of the marital community being dissolved at the time of dissolution of the community is that inheritance law acquisitions during the divorce procedure no longer fall into the community and therefore no longer have to be shared with the other spouse. However, this advantage only applies if the inheritance was not already provided with an exclusion clause and one is married in community of property.
Disadvantage: management and decision-making power
The first disadvantage of dissolving the marital community by filing a divorce petition is that the community can be dissolved without the other spouse knowing it. The second disadvantage, which is an extension of the first disadvantage, is that due to the dissolution, Title 3.7 of Book 3 applies to the dissolved community, instead of the matrimonial property law from Book 1. On the basis of Title 3.7 of Book 3, only the spouses are jointly authorized to manage the property, with the exception of maintenance and actions that cannot lead to postponement. In addition, as a participant in the dissolved marital community, one no longer has the power to make decisions regarding everything. If one wants to sell his or her share in an asset, the other spouse must agree. It is important to note again that at the time of filing a divorce petition, the marital community is dissolved and not the marriage itself. The marriage is only dissolved when the court’s order is entered in the registers. Until the decision is registered, one is still married, although the marital community has already been dissolved.