Divorce or a dispute about your children?
A Dutch divorce requires a lawyer. With minor children a parenting plan is required as well.
- Authority, main residence and contact are three separate things. We explain which applies to you.
- Moving abroad with your child without the other parent’s consent can be unlawful, even if you have authority.
- Call us or send us your situation and we will tell you what to expect.
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Written by Gülcan Alkilic, attorney at Arslan Advocaten. Registered in the legal practice areas register of the Netherlands Bar for personal and family law. Last updated: 1 September 2026.
What does parental authority (gezag) mean in the Netherlands?
Parental authority — in Dutch gezag, or ouderlijk gezag — is the duty and the right to care for and raise your minor child, and with it the power to take the decisions about that child: school, medical treatment, where the child lives, travel and the management of the child's property. It is a legal position, not a description of who does most of the caring.
The starting point is article 1:245 BW: minors are under authority, that authority is either parental authority or guardianship, and it "relates to the person of the minor, the administration of his property and his representation in civil acts, both in and out of court". Article 1:247(1) of the Dutch Civil Code (Burgerlijk Wetboek, BW) defines it as "the duty and the right of the parent to care for and raise his minor child". Paragraph 2 fills that in: the care and responsibility for the mental and physical wellbeing and the safety of the child, and promoting the development of the child's personality. The same provision expressly prohibits mental or physical violence and any other degrading treatment.
There is one element in that article which carries real weight in a separation. Article 1:247(3) BW states that authority "also includes the obligation of the parent to promote the development of the ties between his child and the other parent". A parent who actively works against the child's relationship with the other parent is therefore in breach of his or her own duty as a holder of authority — and in Dutch proceedings that is an argument with consequences, not a moral observation.
Authority does not end because you separate. Under article 1:251(2) BW, after the marriage is dissolved other than by death, parents who hold authority jointly "continue to exercise that authority jointly". No one has to ask the court for it and the court does not decide about it unless one of you raises it.
Finally, article 1:247(4) BW gives the child, after the separation, the right to "equivalent care and upbringing by both parents". Equivalent (gelijkwaardig) is not the same as equal. Dutch case law accepts that this starting point does not oblige parents to split the time fifty-fifty; paragraph 5 allows parents to take practical obstacles into account in their parenting plan, but only to the extent and for as long as those obstacles exist.
Authority, main residence and contact: three different things
Authority (gezag) is about who takes the decisions. Main residence (hoofdverblijfplaats) is about where the child is registered as living. The care arrangement or contact (zorgregeling or omgang) is about who actually looks after the child and when. These are three separate questions, and the answer to one tells you nothing about the answer to the others. More unnecessary conflict comes out of confusing these three than out of any other point in Dutch family law.
| Authority (gezag) | Main residence (hoofdverblijfplaats) | Care arrangement / contact (zorgregeling / omgang) | |
|---|---|---|---|
| What it governs | the power to decide | registration in the municipal records | the actual care and contact |
| Legal basis | articles 1:245 BW onwards | article 1:253a(2)(b) BW | article 1:253a(2)(a) BW (joint authority) or article 1:377a BW (contact) |
| Can it be shared | yes, and that is the rule | no, the child has one | yes, in any division you agree |
| Effect on child benefit and allowances | no direct effect | yes — the administrative consequences hang on this | no direct effect |
| Who decides in a dispute | the court, article 1:251a BW | the court, article 1:253a BW | the court, article 1:253a or 1:377a BW |
Why people get this wrong. Parents often assume that the parent the child is registered with is "in charge", or that joint authority automatically means the child is with each of them half of the time. Both are untrue. Two parents with joint authority have exactly the same decision-making power, even where the child is registered with one of them and sees the other every other weekend. And the reverse: a parent without authority still has a right to contact, because article 1:377a(1) BW expressly gives "the parent not charged with authority the right to, and the obligation of, contact with his child".
Which word applies depends on the authority. If both parents have authority, the statute does not speak of contact but of a division of the care and upbringing tasks (article 1:253a(2)(a) BW). If one parent holds authority alone, it is omgang — contact (article 1:377a BW). The schedule on paper can be identical; the legal basis is different, and that determines what you have to ask the court for.
Contact is not easily refused. Article 1:377a(3) BW lists four grounds, and only four: contact that would cause serious harm to the child's mental or physical development; manifest unsuitability or manifest inability of the parent; serious objections of a child aged twelve or over, apparent from the child's hearing; or conflict with overriding interests of the child. Outside those four there is no room, and a parent who unilaterally stops the contact because the relationship has become unpleasant is in a weak position.
The parent who does not have day-to-day care also has a right to information. Article 1:377b(1) BW obliges the parent with authority to keep the other parent informed about important matters and to consult that parent about them.
For illustration. Two parents separate. The child is registered at the mother's address and stays with the father every other weekend and half of the school holidays. The mother enrols the child at a different secondary school without discussing it, assuming that the parent the child lives with decides about school. Both parents still hold authority, so that is a joint decision, and neither of them can take it alone; the fact that the child is registered at one address has no bearing on it. If they cannot agree, either of them can put the single question to the court under article 1:253a BW, without the authority itself being at stake. This is an illustrative situation explaining the rule, not a case of our firm.
Who has parental authority automatically?
The mother who gives birth to the child has authority automatically. A spouse or registered partner has it automatically as well, provided the legal parenthood is in place. For unmarried parents everything depends on the acknowledgement (erkenning) and on its date: for acknowledgements made on or after 1 January 2023 joint authority arises by operation of law, and for earlier acknowledgements it does not. That date is the single most important fact for unmarried fathers and co-mothers in the Netherlands.
| Your situation at the birth | Authority | What you need to do |
|---|---|---|
| Married to the mother | joint, automatically | nothing |
| Registered partnership with the mother | joint, automatically | nothing |
| Unmarried, acknowledged the child on or after 1 January 2023 | joint by operation of law, subject to the statutory exceptions | nothing, but check the deed and the authority register |
| Unmarried, acknowledged the child before 1 January 2023 | the mother alone | arrange authority separately — see below |
| Unmarried, no acknowledgement | the mother alone; you are not a legal parent either | acknowledge first, then arrange authority |
| Married to or in a registered partnership with the mother, but not a parent of the child | joint with the parent by operation of law, unless the child also has a legal family relationship with another parent (article 1:253sa BW) | check whether the other parent is in the picture |
Acknowledgement and authority are two different things, and this is where most expat parents lose ground. Acknowledgement makes you the legal parent of the child: it settles descent, name, inheritance and maintenance. Authority gives you the power to decide. A father who acknowledged his child in, say, 2019 and never took the further step is a legal parent without authority — which means in practice that he cannot co-decide about school or medical treatment, cannot apply for a Dutch passport for the child on his own, and cannot take the child abroad without the mother's consent.
What changed on 1 January 2023?
Since 1 January 2023, the person who acknowledges a child in principle acquires joint authority with the mother by operation of law, at the moment of the acknowledgement. Before that date, acknowledgement gave no authority at all: the parents had to register joint authority separately, and if they never did, the mother held authority alone. The change is not retroactive, and that is not an interpretation: article III of the amending Act of 7 June 2022 states in terms that article 1:251b BW "does not apply to an acknowledgement made prior to the entry into force of this Act". The date on the deed of acknowledgement therefore decides your position.
Article 1:251b(1) BW now provides that "the mother and the person who has acknowledged a child exercise authority over their child jointly", subject to a number of exceptions: where there is a guardian, where the provision in the authority is lacking, where the parent with authority exercises it together with a non-parent, or where the acknowledger already had authority. Under article 1:251b(2) BW the mother exercises authority alone if the deed of acknowledgement records that the parents have declared it so, or if the court granted substitute consent for the acknowledgement.
If you acknowledged before 2023 — and a great many parents did — there are two routes:
| Route | When it applies | How it works |
|---|---|---|
| Joint entry in the authority register (gezagsregister), article 1:252 BW | you both agree | a joint digital application by both parents to the court, in practice with DigiD; no lawyer needed |
| Application to the court, article 1:253c BW | the mother does not cooperate | through a lawyer |
For the court route the threshold is favourably worded for the applicant. Article 1:253c(2) BW provides that where the application seeks joint authority and the other parent does not agree, it is "refused only" if there is an unacceptable risk that the child will become trapped or lost between the parents with no prospect of sufficient improvement within a foreseeable period, or if refusal is otherwise necessary in the child's interests. The starting point is therefore that the application is granted, and the parent who opposes it has to explain why one of those two grounds applies.
When does one parent get sole authority?
Sole authority (eenhoofdig gezag) is as a rule only granted where there is an unacceptable risk that the child will become trapped or lost between the parents with no prospect of improvement within a foreseeable period, or where a change of authority is otherwise necessary in the child's interests. Those are the two grounds in article 1:251a(1) BW, and the courts apply them with restraint.
The District Court of Gelderland put it as follows: the court may grant the application "if there is an unacceptable risk that the child will become trapped or lost between the parents and it is not to be expected that sufficient improvement will come about within a foreseeable period, or if a change of authority is necessary in the child's interests for other reasons" (ECLI:NL:RBGEL:2026:1127).
What makes the threshold high in practice is the word klem — trapped. Poor communication between parents is not enough on its own. In a case in which there was not even contact between mother and child, the District Court of Amsterdam observed that it is "sometimes difficult for the parties to reach joint agreements", but held that there was "no ground" for sole authority (ECLI:NL:RBAMS:2024:8357). It has to appear from the facts that the child itself suffers because of the joint authority, and that support and guidance cannot solve it.
Situations in which sole authority is more readily in issue:
- structural domestic violence, or a criminal history that directly affects the child;
- a parent who is effectively unreachable, so that necessary decisions — medical treatment, a passport, a school enrolment — remain undone;
- a parent who systematically uses the required signature as leverage in a different conflict;
- a relationship that has been deadlocked for years and in which every form of support has been exhausted.
The court can also decide on its own motion if a minor of twelve or over appears to want it, and likewise in the case of a younger child capable of a reasonable assessment of his interests (article 1:251a(4) BW).
A middle road that often works better. A dispute about one concrete decision can be put to the court under article 1:253a(1) BW without the authority itself being at stake. The court "takes such a decision as appears to it desirable in the interests of the child" and deals with such an application, under paragraph 6, within six weeks. That is faster, cheaper and far less damaging than a full authority case.
How does a divorce work in the Netherlands?
A Dutch divorce is pronounced by the district court on a petition filed by a lawyer, and it only takes effect at the moment the court's decision is registered in the records of the civil registry (burgerlijke stand). Until that registration you are still married, even though the court has already pronounced the divorce. That last point catches people out every year.
The statutory ground is short. Article 1:150 BW provides that divorce is pronounced "at the request of one of the spouses or at their joint request". The only ground is irretrievable breakdown: article 1:151 BW speaks of divorce "if the marriage has broken down irretrievably". There is no question of fault, no proof of adultery, no waiting period and no separation requirement. As a rule the divorce is granted, precisely because the fact that one spouse maintains that the marriage has broken down tends to establish that it has.
The route, step by step:
- Choosing your track. Do you instruct one lawyer or mediator together, or does each of you instruct a lawyer? This choice determines everything that follows.
- Provisional measures, if needed. If the situation at home has become untenable, the court can regulate matters for the duration of the proceedings: who stays in the house, where the children are, what is paid (articles 822 and 823 of the Code of Civil Procedure, Rv). Under article 821(2) Rv the hearing takes place "no later than in the third week following the week in which the measure was requested". If you apply for a provisional measure before the divorce petition, the petition must follow within four weeks of the date of the decision, failing which the measure loses its force (article 821(4) Rv).
- Parenting plan. With minor children this must be filed with the petition (article 815(2) Rv).
- Settlement agreement. Your arrangements about assets, the home, pension and spousal maintenance are recorded in a divorce covenant (echtscheidingsconvenant).
- Filing the petition at the district court, with the documents listed in article 815(5) Rv: the marriage certificate, the children's birth certificates and the documents concerning jurisdiction.
- Defence or no defence. A joint petition has no defence stage. On a unilateral petition the other spouse is given the opportunity to file a defence and to make requests of his or her own.
- Hearing, where one is necessary. On a fully agreed joint petition a hearing is often dispensed with.
- Decision. The court pronounces the divorce and rules on the ancillary matters listed in article 827 Rv: maintenance, the division of the community or the set-off, authority, main residence, the care arrangement and continued use of the home.
- Registration. The decision is registered with the civil registry of the municipality where you married. Only then has the marriage ended (article 1:163(1) BW).
Watch the deadline for registration. Article 1:163(3) BW: "If the request for registration has not been made no later than six months after the day on which the decision became final, the decision loses its force." Let those six months pass and you are still married, and the whole procedure has to be done again. This goes wrong more often than you would expect, usually because the parties are still arguing about a loose end after the decision.
Source: Book 1 of the Civil Code and the Code of Civil Procedure, wetten.overheid.nl.
Do I need a lawyer to divorce in the Netherlands?
Yes. A divorce runs through a petition to the district court, and that petition must be signed by a lawyer (advocaat) under article 815(1) in conjunction with article 278(3) Rv. You cannot arrange a divorce at the municipality or at a civil-law notary, and you cannot file the petition yourself. This surprises many people who come from a jurisdiction with an administrative divorce.
What you can do is instruct one lawyer or one mediator together. That is the cheapest and usually the quickest route: one professional guides you both, drafts the parenting plan and the covenant, and files the joint petition. Where the mediator is not a lawyer, a lawyer still files the petition. Source: Rijksoverheid, applying for a divorce.
The other side of one shared lawyer is that he or she cannot take sides. A shared lawyer can explain to both of you what the law says, but cannot negotiate for one of you against the other. As soon as there is a real conflict of interest — the value of a business, whether one of you is able to work, how the care is divided — a shared lawyer is no longer appropriate, withdraws, and you continue with two lawyers after all, having lost time and money.
Our experience: instruct one lawyer where you agree on the main lines and only the working-out remains. Instruct two as soon as there is a single subject on which you fundamentally disagree. It is cheaper to acknowledge that at the start than halfway through.
A registered partnership without joint minor children can be ended without going to court, but even there a lawyer or notary has to co-sign the termination declaration (article 1:80c(1)(c) BW). Where the partners exercise authority over their joint children, termination by mutual consent is excluded and you go to court just as married couples do (article 1:80c(3) BW).
How long does a divorce take in the Netherlands?
There is no statutory time limit on divorce proceedings: the duration is determined by the extent to which you agree, and only then by the court. A fully agreed joint petition is generally a matter of months; a case in which authority, maintenance and assets are litigated takes considerably longer, certainly where an expert or the Child Care and Protection Board (Raad voor de Kinderbescherming) becomes involved.
The Dutch judiciary itself does not give an average but a range: the divorce procedure takes from a minimum of six weeks to more than a year, depending on how quickly you reach agreement. Source: Rechtspraak, echtscheidingsprocedure. Treat that as a range and not as an expectation. We deliberately quote no average in weeks, because processing times differ per court and per period; current times are published on rechtspraak.nl.
| Factor | Effect on the duration |
|---|---|
| Joint or unilateral petition | a joint petition has no defence period and often no hearing |
| Parenting plan agreed or not | without a plan the court will in principle stay the decisions about the children |
| A business, a house or foreign assets | valuation takes time, sometimes with an expert |
| Disagreement about authority or main residence | an investigation by the Child Care and Protection Board takes months |
| International elements | jurisdiction and applicable law have to be settled first |
| Appeal | an appeal against the ancillary decisions adds a full instance |
What you can speed up yourself: delivering complete financial documents in one go, and limiting the discussion to the points that genuinely matter. Cases rarely get stuck on the legal dispute; they get stuck on missing annual accounts and a valuation nobody orders.
What is a parenting plan, and what must be in it?
If you have minor children, a parenting plan (ouderschapsplan) signed by both parents must be filed with the divorce petition; without it the petition is in principle incomplete. Article 815(2) Rv requires the petition to contain "a parenting plan signed by both spouses" in respect of their joint minor children, whether or not they exercise authority jointly.
The obligation is not limited to married couples. Article 1:247a BW imposes the same duty on parents who exercise authority jointly and end their cohabitation. Unmarried parents with joint authority therefore cannot avoid it either.
What the statute requires. Article 815(3) Rv names three subjects that must in any event be covered: the division of the care and upbringing tasks or the arrangement of contact; the way in which you inform and consult each other about important matters; and the costs of the care and upbringing of the children. In addition, article 815(4) Rv requires the petition to state "in what way the children have been involved in drawing up the parenting plan". The child has a voice, adapted to age and understanding.
| What the law requires | What that means concretely |
|---|---|
| Division of care and upbringing tasks, or contact | who looks after the child and when: the schedule during the week, at weekends, in the holidays and on public holidays |
| Information and consultation | how you keep each other informed and involved about school, health, sport and important choices |
| Costs of care and upbringing | child maintenance, and who bears which costs |
| Involvement of the children | how you heard the child and what was done with it |
What belongs in it in practice, because otherwise it produces conflict within a year — and for an international family several of these are not optional:
- the child's main residence, with an eye to registration, child benefit and allowances;
- how you deal with a move, and within what distance a move is allowed without consultation;
- travel abroad: consent, the passport, and — where family lives in another country — the length of the stay and the outbound and return dates;
- which country you will spend the school holidays in, and in whose care;
- the choice of school and the transition to secondary education;
- medical decisions and who may approach which practitioner;
- exceptional costs: orthodontics, an expensive sport, tutoring, a study trip;
- a new partner: when you introduce one and what you expect of each other;
- how you evaluate the plan periodically, and what you do in a dispute — for instance a conversation with a mediator before either of you goes to court.
The most common mistake is a plan that is too vague. "In mutual consultation" and "reasonably" are pleasant words at the moment when you are still talking to each other, and worthless at the moment when you are not. A good parenting plan is written for the worst version of your relationship, not the best. Write out the holiday division for the coming years, with even and odd years, and record the collection and delivery times.
What if you cannot agree? The plan is a procedural requirement, not an absolute barrier. Article 815(6) Rv provides that where the parenting plan "cannot reasonably be produced", other documents may suffice or provision may be made in another way, "all this at the assessment of the court". In practice courts do hear the petition where it is clear that the parents were unable to reach agreement — the District Court of The Hague held in a 2025 case that the parents had not managed to make joint arrangements and therefore passed over "the requirement of article 815(2) Rv" (ECLI:NL:RBDHA:2025:23919). You cannot rely on that, however: the court also has the power to declare the petition inadmissible.
There is a further, less well-known provision. Where the parents are under the duty of article 1:247a BW and have not complied with it, the court will on its own motion stay the decision on authority, main residence and the division of care under article 1:253a(3) BW until there is a plan — unless the child's interests oppose it. No plan therefore means delay on precisely the subjects you wanted certainty about.
What is child maintenance based on, and how long does it last?
Parents are obliged, according to their capacity to pay, to provide for the costs of the care and upbringing of their minor children, and that duty continues until the child turns 21. Article 1:404(1) BW imposes the obligation for minors; article 1:395a(1) BW extends it: "Parents are obliged to provide for the costs of living and study of their adult children who have not reached the age of twenty-one."
Up to 21 the child does not have to show need. Article 1:392(2) BW expressly exempts parents, in relation to their minor children and to the children referred to in article 1:395a BW, from the requirement of neediness. The Court of Appeal of 's-Hertogenbosch put the consequence plainly: parents owe maintenance to children under 21 "even if those children are not in need because they would be able to provide for their own living" (ECLI:NL:GHSHE:2017:5393). From 21 that reverses: from then on there is a maintenance duty only where the child is in need.
From the age of 18 the child also has a claim of its own. The maintenance is then paid to the child rather than to the other parent.
What the amount is based on. Article 1:397(1) BW gives the yardstick: account is taken "on the one hand of the needs of the person entitled to maintenance and on the other of the capacity of the person obliged to pay". Two quantities, therefore:
- Need (behoefte) — what the child costs. In practice this is derived from the net disposable family income as it was while the family was still together. The Court of Appeal of 's-Hertogenbosch held that the yardstick is not the family's actual expenditure but "the net disposable income of the family" (ECLI:NL:GHSHE:2006:AY6457).
- Capacity (draagkracht) — what a parent can miss, given his income and his own necessary expenses.
The calculation method itself is not in the statute. Courts work with the recommendations of the expert group on maintenance standards, known in practice as the Tremanormen. Those recommendations are revised periodically; they are not law, but they are relied on very widely in the case law. The case law also shows how the statute feeds into them: following the statutory priority for child maintenance in article 1:400(1) BW, the recommendations were amended so that "the new partner is to be left out of the calculation of capacity, in the sense that the person liable for maintenance is to be treated in the capacity calculation as a single person" (ECLI:NL:GHARN:2011:BQ5183).
We deliberately quote no percentages and no table amounts on this page. The standard amounts are adjusted annually and the system has been changed more than once in recent years; a percentage you read somewhere is more often outdated than current. A realistic calculation requires both net disposable incomes, the division of care and the fixed costs — and that calculation can be made in an hour.
Two rules you do need to know:
- Child maintenance comes first. Article 1:400(1) BW gives children and stepchildren under 21 priority over all other persons entitled to maintenance, including the ex-partner. Where capacity is limited, the children come first.
- You cannot waive it. Article 1:400(2) BW: "Agreements by which maintenance owed under the law is waived are void." An arrangement in a covenant that no child maintenance will be paid is therefore not binding and can be reopened later.
A stepparent can also be liable: article 1:395 BW obliges him or her, during the marriage or registered partnership, to maintain the minor stepchildren belonging to the household.
Is spousal maintenance compulsory, and how long does it last?
Spousal maintenance (partneralimentatie) is not automatically owed: the court may award it to the spouse who does not have sufficient income of his or her own and cannot reasonably acquire it. Since 1 January 2020 it lasts, as a starting point, for half the duration of the marriage with a maximum of five years — subject to four exceptions. The main rule is in article 1:157(1) BW: where the court has not set a period, the obligation ends by operation of law "after the expiry of a period equal to half the duration of the marriage with a maximum of five years".
The basis for the right itself is article 1:156 BW: the court may award maintenance to the spouse "who does not have sufficient income for his maintenance, nor can reasonably acquire it". There is no right without need, and none without capacity on the other side — article 1:397(1) BW applies here too.
| Situation | Duration | Basis |
|---|---|---|
| Main rule | half the duration of the marriage, maximum five years | article 1:157(1) BW |
| Marriage longer than fifteen years and the recipient is, at the time of the application, at most ten years younger than the state pension (AOW) age | until that AOW age is reached | article 1:157(2) BW |
| Marriage longer than fifteen years, the recipient was born on or before 1 January 1970 and is more than ten years younger than the AOW age | ten years | article 1:157(3) BW |
| Children were born of the marriage | not earlier than until the youngest child turns twelve | article 1:157(4) BW |
| More than one exception applies | the longest period governs | article 1:157(5) BW |
The period does not start on the day of the decision. Article 1:157(6) BW: it "commences on the date of registration of the divorce decision in the records of the civil registry".
The children exception in paragraph 4 is strictly worded and is applied that way. The District Court of Zeeland-West-Brabant observed that the text is "fairly mandatory": where children were born of the marriage, the obligation does not end before those children have turned twelve — how the care is in fact divided does not alter that (ECLI:NL:RBZWB:2023:7384).
The hardship clause. Article 1:157(7) BW offers a way out where unchanged termination "cannot be required according to standards of reasonableness and fairness" of the recipient. The court can then still set a period. Note the deadline: the application must be made "before three months have passed since the termination of the maintenance". Those three months are hard and are missed regularly.
When maintenance ends earlier. Article 1:160 BW: the obligation ends when the recipient "remarries, enters into a registered partnership, or has begun to live with another person as if they were married or as if they had registered their partnership". The consequence is final: the maintenance does not revive if the new relationship fails. Precisely for that reason the provision is interpreted restrictively — the Court of Appeal of Arnhem-Leeuwarden held that "the exceptional and irrevocable character of the sanction contained in article 1:160 BW requires that this provision be interpreted restrictively" (ECLI:NL:GHARL:2017:1472). What is required includes an affective relationship of a lasting nature entailing mutual care and a joint household. Simply living together is not enough — but anyone in that position should know that the evidence-gathering on this point is intrusive.
You can also make your own arrangements. Article 1:158 BW allows spouses, before or after the decision, to agree by contract whether and up to what amount maintenance is paid. Where no period is stated, the statutory periods of article 1:157 BW apply after all.
Maintenance can be changed — both kinds. Article 1:401(1) BW allows a decision or an agreement about maintenance to be changed or withdrawn by a later court decision where, through a change of circumstances, it ceases to meet the statutory yardsticks. The threshold is lower than people think: it has to be a relevant change, not a dramatic one — losing a job, incapacity for work, a structurally different income, a new child, an extended care arrangement. Once the change is established, the court sets the maintenance entirely afresh on the basis of all circumstances existing at that moment, even circumstances that existed at the time of the earlier decision but were not raised then (ECLI:NL:PHR:2018:1405). An application to vary therefore opens the case up again for both parties.
Two practical points. A change does not in principle work retroactively, so a parent who loses his job should say so immediately rather than waiting six months — arrears that build up in the meantime as a rule remain payable. And if you simply stop paying, collection can be taken over by the national maintenance collection agency (LBIO), with costs added on top.
What happens to the family home and the mortgage?
During the proceedings the court can order by provisional measure that one of you has the exclusive right to use the matrimonial home; after registration of the divorce it can award continued use for six months. These are two different arrangements with two different bases.
During the proceedings article 822(1)(a) Rv applies: for the duration of the proceedings the court may determine "that one of the spouses shall be exclusively entitled to the use of the matrimonial home, with an order that the other spouse leave the home and not enter it further". That measure loses its force under article 826(1) Rv as soon as the divorce decision is registered — with the qualification that in the case of a rented home it continues until the tenancy application has been decided.
After registration article 1:165(1) BW applies: the court may determine that the spouse who occupies the home at the time of registration is entitled to "continue the occupation and the use of the goods belonging to the home and its contents for six months after registration of the decision, against reasonable compensation". Six months, against reasonable compensation — it is a bridging arrangement, not a permanent solution.
Owner-occupied home. There are in principle three outcomes: the home goes to one of you with settlement of the surplus or deficit value, it goes to the other, or it is sold and the proceeds are divided. The hard precondition is that the departing partner must be released from joint and several liability for the mortgage (ontslag uit de hoofdelijke aansprakelijkheid). This is where most divisions get stuck, and it is not a legal decision but a banking one: without that release the departing partner remains liable to the lender for the whole loan, however you have arranged matters between yourselves. An agreement between the two of you does not bind the bank. In covenants the allocation is therefore made conditional on it (see ECLI:NL:RBDHA:2024:15979, where the court set out the conditions for dividing a home as a step-by-step schedule expressly including that release). If the release is not granted, the allocation falls back on sale.
Where the home belongs to a community of property, the spouses have "an equal share in the dissolved community" under article 1:100(1) BW, unless otherwise provided in prenuptial conditions or in a written agreement made with a view to the dissolution. Where private money went into the home — an inheritance, a gift, pre-marital savings — a right of reimbursement may arise. That is the most underestimated element in practice, and it depends entirely on your ability to trace the money.
Rented home. Article 7:266(1) BW makes the spouse or registered partner of a tenant a co-tenant by operation of law for as long as the home is his or her principal residence. On divorce the court may, under article 7:266(5) BW, "determine which of the spouses or registered partners shall be the tenant of the accommodation"; it also sets the commencement date, and on the same day the tenancy ends for the other. This is one of the ancillary matters you can request in the divorce proceedings (article 827(1)(f) Rv). If you do not request it, you both remain jointly and severally liable for the rent — article 7:266(2) BW.
Can I move abroad with my child?
If you both hold parental authority, you cannot move abroad with the child — or move within the Netherlands in a way that affects the care arrangement — without the other parent's consent. If the other parent refuses, you must apply to the court for substitute consent (vervangende toestemming) under article 1:253a BW before you go, not after. For expat parents this is the most consequential rule on this page, and it is the one most often discovered too late.
Article 1:253a(1) BW provides that in the case of joint authority, disputes may be submitted to the court at the request of the parents or of one of them, and that the court "takes such a decision as appears to it desirable in the interests of the child". A relocation is such a dispute.
The passport runs along the same track. Article 34(1) of the Passport Act (Paspoortwet) requires that an application for or on behalf of a minor be accompanied by a declaration of consent from every person exercising authority. Where authority is joint and one of them refuses, article 34(2) allows that declaration to be replaced, at the request of the other, by a declaration of the competent court, which first attempts to reach a compromise between them. The case law treats that substitute consent as a form of the dispute rule now laid down in article 1:253a BW, and therefore as an interference with the exercise of parental authority (ECLI:NL:RBDHA:2024:9737). Under article 34(5) the court decides in the interests of the child and may limit the validity or the territorial scope of the document — which is worth knowing if you are the parent who fears a departure.
How the court decides. The child's interests come first, but that does not mean they always outweigh everything else. Following the Supreme Court's judgment of 25 April 2008 (ECLI:NL:HR:2008:BC5901), the courts take all the circumstances of the case into account and weigh them against each other; depending on the circumstances, other interests may weigh more heavily than the child's (as applied, for instance, in ECLI:NL:RBGEL:2026:1250 and ECLI:NL:RBZWB:2022:7356). The points that recur in the case law are:
- the right and interest of the relocating parent, and the freedom to organise his or her life anew;
- the necessity of the move;
- the extent to which the move has been thought through and prepared;
- the alternatives and measures offered by the relocating parent to soften or compensate the consequences for the child and for the other parent;
- the extent to which the parents are able to communicate and consult with each other;
- the rights of the other parent and the child to undiminished contact with each other in a familiar environment;
- the distribution of the care and the possibilities of compensating for a change in it;
- the extra costs of contact after the move.
That list is the practical brief for anyone considering a move. A parent who arrives at court with a job offer, a concrete school, a housing arrangement, a costed travel plan and a proposal for longer holiday blocks with the other parent is in a very different position from a parent who says only that he or she wants to go home. The distance matters less than the preparation.
Do not go first and ask afterwards. A move abroad without consent is not a strong negotiating position; it is a legal problem, and possibly a criminal one. The next section explains why.
For illustration. A parent whose family lives in another country loses her job in the Netherlands and wants to move back with the child, where a job and grandparents are waiting. The other parent, who has joint authority, refuses. Her lawyer applies for substitute consent, sets out the necessity of the move, the school she has selected, the flight costs and a proposal in which the child spends all school holidays with the other parent, with the travel paid by her. Whether the court agrees is not predictable; what is certain is that the case is decided on that preparation, and that leaving without a decision would have changed the question from "may she move?" into "must the child be returned?". This is an illustrative situation explaining the rule, not a case of our firm.
Taking a child abroad without consent: child abduction under the Hague Convention
Taking your child to another country, or keeping the child there after a holiday, without the consent of the other parent who holds authority can be unlawful international child abduction — even if you hold parental authority yourself, even if you are the child's mother, and even if you are only going home. This is the single point on this page we ask every international parent to read twice. It is almost never explained in English, and by the time it is explained the damage is usually done.
The instrument is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which the Netherlands and most countries where expat families have roots have ratified. Within the European Union it operates alongside Regulation (EU) 2019/1111, known as Brussels II-ter, which has applied since 1 August 2022 (article 105(2)) and contains its own chapter on international child abduction (articles 22 to 29). The premise of both is the same: the merits — where the child should ultimately live — belong to the courts of the country where the child was habitually resident. The removal itself does not move that competence. It only produces a return.
When is a removal wrongful? Article 3 of the Convention gives the test, and it is a low one. A removal or a retention is wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and where those rights were actually being exercised at that time, or would have been but for the removal or retention. The article adds that those rights of custody may arise "by operation of law, by a judicial or administrative decision, or by an agreement having legal effect" under the law of that state. Note what is not in the test: no requirement of bad faith, no requirement of a court order, no requirement that you have less than the other parent. Joint authority held by the other parent is enough.
Three misunderstandings that cause real harm:
- "I have authority, so I can take my own child." You can commit abduction while holding joint authority. That is the position in Dutch criminal law as well: the Supreme Court has confirmed that a person who exercises authority jointly can nonetheless remove the child from the lawful authority within the meaning of article 279 of the Criminal Code (Wetboek van Strafrecht) — for instance by taking the child abroad without the other parent's consent and keeping the child there (ECLI:NL:HR:2014:302). Removal can consist of taking the child away or of keeping the child away. Article 279(1) Sr carries a maximum of six years' imprisonment or a fourth-category fine; under paragraph 2 that rises to a maximum of nine years or a fifth-category fine where deceit, violence or the threat of violence was used, or where the child is under twelve. Prosecution does not follow automatically in every case, but the exposure is real and it is not a technicality.
- "It is only a holiday." A lawful trip becomes a wrongful retention the moment you do not bring the child back on the agreed date. Nothing else has to happen. The District Court of Rotterdam, in a case where a parent moved abroad and informed the other parent only afterwards, found it not credible that she had thought a move abroad required no consent while she had previously asked for consent for a holiday, and held that she had knowingly disregarded the parenting plan and the other parent's authority (ECLI:NL:RBROT:2026:10127).
- "Once we are there, the local court will decide." As a rule it will not decide the merits. Under the Convention the court of the country the child was taken to decides one question: does the child go back. Where less than a year has passed between the wrongful removal and the application, and no ground for refusal under article 13 applies, the immediate return of the child follows under article 12 (see, for an example of that reasoning, ECLI:NL:GHDHA:2015:1382).
The refusal grounds are narrow, and time is the variable that matters. Under article 12, where the application is made more than a year after the removal the court must still order the return "unless it is demonstrated that the child is now settled in its new environment". That is why delay works against the parent left behind and why acting quickly is not a matter of temperament but of law. Article 13 adds the exceptions: that the person who had the care was not actually exercising custody rights at the time, or had consented to or subsequently acquiesced in the removal or retention; or that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The court may also refuse where the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Within the EU, article 27(3) of Brussels II-ter narrows the grave-risk ground further: the court may not refuse the return on that basis alone if it is established that adequate arrangements have been made to secure the child's protection after the return.
What this means in practice. In the Netherlands return proceedings are concentrated: under article 11(1) of the Implementing Act on international child abduction (Uitvoeringswet internationale kinderontvoering), the children's judge of the District Court of The Hague has exclusive jurisdiction at first instance over the surrender and the return of an internationally abducted child. The procedure is deliberately fast — an appeal must be lodged within two weeks of the date of the decision (article 13(7)), and under article 13(8) no ordinary appeal in cassation lies against the appeal court's decision. There is also a Central Authority at the Ministry of Justice through which an application can be routed (article 4), although a parent may also go to court directly.
A parent who has left is therefore not negotiating from a stronger position but from a weaker one: the return question is decided first and quickly, and the very act of leaving becomes an argument against that parent when relocation and care are later considered on the merits. On top of that come the criminal exposure, the cost of proceedings in two countries, and the effect on a child of being moved twice.
And what to do instead. If you want to leave, apply for substitute consent first — see the previous section. If your child has been taken or kept abroad, act immediately: the passage of time is the one thing that genuinely damages your position, both because of the one-year rule in the Convention and because a child who has settled in becomes a separate argument. And if you are the parent staying behind and you suspect a departure is being prepared, do not wait for it to happen; the court can be asked at short notice for measures concerning the passport, the main residence and the handover of travel documents.
For illustration. Two parents with joint authority agree that the child will spend four weeks of the summer with one parent's family abroad. The return date passes and the child is enrolled in a local school; the parent explains that the child is happier there and that she will come back "when things are calmer". However genuine the motive, the legal position changed on the return date: what was a lawful holiday became a retention without consent, and the question is no longer whether the child may live abroad but whether the child must be returned. The parent who stayed behind can start return proceedings; the parent abroad now has to defend a case she did not intend to start. This is an illustrative situation explaining the rule, not a case of our firm.
International divorce: which court, and which law?
Where a marriage has a foreign element there are two separate questions: which court has jurisdiction, and which law that court applies. The answer to the first does not determine the answer to the second. This is where most mistakes are made and where the consequences last longest — a divorce that is valid in one country but not recognised in another is a problem that runs for years.
Jurisdiction. Within the European Union this runs, since 1 August 2022, through Regulation (EU) 2019/1111, Brussels II-ter. The District Court of The Hague applies it as a matter of course: where both spouses have Dutch nationality, the Dutch court has jurisdiction "on the basis of article 3(1)(b) of Regulation (EU) 2019/1111" (ECLI:NL:RBDHA:2024:15672). Article 3 of that regulation also contains a series of grounds of jurisdiction that attach to the spouses' habitual residence — which is what usually applies to an expat couple living in the Netherlands.
The regulation is exclusive on this point. The Dutch national rules on jurisdiction in the Code of Civil Procedure do not apply alongside it, and the Netherlands has no residual jurisdiction (see the advisory opinion ECLI:NL:PHR:2018:1432).
Applicable law. Here article 10:56 BW governs. Paragraph 1 is the main rule and is short: whether the marriage can be dissolved, and on what grounds, "is determined by Dutch law". Paragraph 2 allows an exception: the law of the state of a common foreign nationality is applied if the spouses jointly choose it, or if one of them chooses it and that choice is not contested, or if one of them chooses it and both have a genuine social connection with that country. Under paragraph 3 the choice of law must be made expressly or appear sufficiently clearly from the wording of the petition or the defence.
| Subject | Why it needs separate attention |
|---|---|
| Recognition in the other country | a divorce pronounced in the Netherlands is not automatically recognised everywhere; check this before you start |
| Religious marriage | the court can order, as an ancillary measure, cooperation in dissolving a religious or philosophical bond existing alongside the marriage (article 827(1)(e) Rv) |
| Matrimonial property regime | this is governed by its own conflict rule and does not automatically follow the divorce law |
| Maintenance | falls under its own European regime — Regulation (EC) No 4/2009, applicable since 18 June 2011 — with its own rules on jurisdiction and recognition |
| Children | Brussels II-ter also governs parental responsibility and international child abduction |
| Assets abroad | requires coordination with a local adviser; a Dutch decision is not automatically enforceable there |
Whoever files first often chooses the playing field. Where more than one country has jurisdiction, as a rule the first petition filed determines where the case is heard — and that can produce large substantive differences in maintenance and in the division of assets. If your case touches two countries, have it assessed straight away where you are best placed to begin. Waiting costs money here directly.
Our family law section regularly handles cases with a Turkish or Polish element. We conduct those conversations in Turkish and in Polish, which helps when documents from the country of origin are involved.
What does a Dutch court look at when it decides about a child?
The court takes the decision that appears to it desirable in the interests of the child, on the basis of all the circumstances of the case — and "in the interests of the child" is a weighing exercise, not a formula. That standard appears throughout Book 1 of the Civil Code: in article 1:253a BW for disputes between parents with joint authority, in article 1:251a BW for authority, and in article 1:377a BW for contact.
What that weighing exercise consists of in practice:
| What the court looks at | Why it matters |
|---|---|
| Continuity and stability | children are helped by predictable arrangements; a court is reluctant to disturb a situation that works |
| The ability of the parents to communicate | this is the factor that most often decides authority and relocation cases |
| Whether each parent supports the child's relationship with the other | article 1:247(3) BW makes this a duty, not a preference |
| The child's own views | a child of twelve or over is given the opportunity to be heard; younger children are heard where they are capable of a reasonable assessment of their interests |
| Practical feasibility | distance, working hours, school, the cost and time of travel |
| Safety | domestic violence, abuse or neglect changes the whole assessment |
| The advice of the Child Care and Protection Board | in contested cases the court often asks for an investigation, and that advice carries weight |
| The parents' own arrangements | a workable parenting plan is generally followed; a plan that has never been performed is not |
Two things the court does not do. It does not decide who was right in the relationship, and it does not hand the decision to the child. The child is heard and its view is taken into account, but a child does not carry the responsibility for the outcome — and manoeuvring a child into that position is harmful and is recognised as such.
One thing that matters more than parents expect is how each of them describes the other. A parent who can name what the other does well for the child is more credible than a parent who cannot. That is not a matter of tone; it goes directly to article 1:247(3) BW.
What does a family lawyer cost, and is there legal aid?
The cost depends above all on whether you agree: a joint petition with one lawyer is as a rule the cheapest, while a case in which authority, maintenance and assets are litigated can cost a multiple of that. If you have a low income and little capital you may qualify for subsidised legal aid — a toevoeging — with a personal contribution.
Legal aid is granted by the Legal Aid Board (Raad voor Rechtsbijstand) under the Legal Aid Act. Your income and capital are assessed, in principle over a reference year two years before the year of application. If your income has fallen sharply since then — very common in a separation — you can ask for a different reference year to be used. You also pay court fees (griffierecht) yourself.
We quote no amounts here. The income and capital limits and the personal contributions are indexed periodically, and a figure you read elsewhere is almost always from an earlier year. The Legal Aid Board publishes the current limits and contributions itself; have your situation assessed against those before you commit to anything. Source: Raad voor Rechtsbijstand.
| Cost driver | Explanation |
|---|---|
| One lawyer or two | a joint petition halves the number of professionals involved |
| Number of points in dispute | each point the court has to decide costs a round of documents and often a hearing |
| A business or self-employment | valuation requires an expert and lengthens the process |
| Property and foreign assets | valuations, notarial costs, sometimes a local adviser |
| An investigation by the Child Care and Protection Board | adds months |
| Appeal | a complete additional instance |
| Translation and legalisation of foreign documents | routine in international cases and worth budgeting for |
The cheapest file is the file that is set up properly at the front end. We regularly see cases that became expensive because no choice was made in the first weeks between going together or going separately, or because a covenant was signed that did not settle the main subjects. You can have your situation assessed by us free of charge before you instruct a lawyer: we will tell you what needs to happen in your case and which route fits it best.
Where does it go wrong in practice? Ten common mistakes
Most of the damage in a family law file is not done by the court or by the ex-partner, but by decisions people take themselves in the first months — often out of a wish for it to be over quickly.
- Assuming that acknowledgement gave you authority. If you acknowledged before 1 January 2023 and never registered joint authority, you are a legal parent without authority. Check the authority register rather than assuming.
- Forgetting the registration. If the decision is not registered within six months of becoming final, it loses its force (article 1:163(3) BW) and you are still married.
- Leaving the country with the child without consent. This turns your case from a relocation question into a return case, and can be a criminal offence.
- A vague parenting plan. "In mutual consultation" works exactly as long as the consultation works.
- Agreeing that no child maintenance will be paid. Such an agreement is void (article 1:400(2) BW) and can be reopened later.
- Invoking the hardship clause too late. An application under article 1:157(7) BW must be made within three months of the maintenance ending.
- Allocating the home without release from joint and several liability. Towards the bank you remain liable for the whole loan.
- Not being able to prove that money was private. What has been mixed and can no longer be traced is treated as community property.
- Simply stopping payment. The arrears remain payable and collection can be taken over, with costs. Apply for a variation under article 1:401 BW instead.
- Thinking the child makes the choice. A child is heard and its view counts, but it does not carry the decision.
About this advice
Arslan Advocaten handles divorces, maintenance cases, authority and relocation proceedings and international child abduction from offices in The Hague, Rotterdam, Amsterdam, Utrecht, Tilburg and Eindhoven. We assess your situation free of charge, we act both in joint petitions and in cases that have to be litigated, and we check whether you qualify for subsidised legal aid. Besides Dutch and English we speak Turkish and Polish.
Call 070 450 0300 or send us your question through the contact form. We will tell you where you stand and what the next step is.
*Read more: divorce, maintenance and the children (in Dutch).*
This page gives general information and is not legal advice about your own case. No rights can be derived from the starting points described here.
