Usually, the Dutch divorce courts are only competent to hear divorce cases if one of the parties lives in The Netherlands or both parties are of Dutch nationality (see here for a full overview of when the courts have jurisdiction). During the Covid-19 pandemic, however, it is not always possible to travel to other countries to obtain a divorce. In a recent divorce case, a Dutch Divorce court extended its jurisdiction due to the Covid-19 pandemic.
Forum necessitatis
Dutch law has a special provision creating jurisdiction for the Dutch courts in cases where it is impossible to bring proceedings in another country. This is also known as forum necessitatis (forum of necessity) in legal jargon. The question was whether temporary travel restrictions count as an impossibility. Another court still has the power to hear the case even if parties cannot travel right now.
Covid-19 and forum necessitatis
In a recent divorce case before the court in The Hague, parties requested that the court hear their mutual divorce. The husband was of Dutch nationality, living in Vietnam. The wife was of Thai nationality, living in Thailand. They were married in Denmark in 1994. According to the normal rules, the Dutch courts would not be able to hear the case as neither party lives in The Netherlands. Neither do they have a joint nationality.
Parties argued that:
- In Vietnam there was no possibility of applying for a divorce as a non national;
- The husband and wife could not obtain a mutual divorce in Thailand;
- The husband could not travel to Thailand for non-mutual divorce proceedings.
Therefore parties jointly requested the Dutch court to pronounce their mutual divorce based on the principle of forum necessitatis. They literally had nowhere else they could go. The court held that it is currently practically impossible to obtain a divorce outside of The Netherlands and granted the petition. Parties were allowed to divorce in The Netherlands.
Other uses of forum necessitatis
Gay marriage is still banned in many countries around the world. Therefore, getting a divorce is also impossible. If a couple marries in The Netherlands, but then move to a country that does not recognise their marriage, they will not be able to get a divorce there. If the Dutch courts do not have jurisdiction, a divorce petition can be based on forum necessitatis.
Joint or mutual divorce
What helps is if both parties apply for a joint or mutual divorce. The court is more likely to accept its role as forum of necessity if both parties want the same thing. The court does not harm any rights the parties may have had in their own jurisdiction.
If you have any questions about obtaining a divorce during the Covid-19 pandemic or experience other problems getting a divorce in another country, please contact us.
