Same sex divorce & jurisdiction problems

Filing for divorce is difficult for any couple, but same-sex spouses face problems that don’t affect opposite-sex partners. If you are residing in a state that does not currently recognize same-sex relationships and you went elsewhere to marry or register, your local court may refuse to grant a divorce. Should you have multiple registrations from different states, the judge may prove to be even more reluctant to end all of the relationships.

It often occurs that the court states that it doesn’t have jurisdiction to handle your divorce.  In this situation the court may claim that it lacks the jurisdiction to divorce you because – according to state law – you aren’t married.

Should this occur you unfortunately cannot just travel back to the state where you did get  married and file for a divorce there. Most states have residency requirements for obtaining a divorce, and one of you would have to live there long enough, some as long as a year, to establish residency to be able to file for the divorce.

Furthermore, should you be married or have registered your partnership in more than one state, it can be very important that you legally end it in all of those places.

In case you married or registered your partnership in The Netherlands the possibility exists to obtain a divorce there, without actually having to move (temporarily) to The Netherlands.

If you are a foreign national, you can file for a divorce in The Netherlands in any of the following circumstances, irrespective of your nationality or the country where you were married:

  • If both parties reside in The Netherlands;
  • If The Netherlands was the last place that parties had a marital home and one of you still resides in The Netherlands;
  • If the defending party resides in The Netherlands;
  • If the person filing for a divorce has been residing in The Netherlands for at least one year prior to their request.

Regardless of the above the Dutch court can have jurisdiction to handle the divorce in case judicial proceedings outside the Netherlands prove to be impossible. When a procedure abroad is not possible, art. 6 of the European Convention of Human Rights (ECHR) forces the court to open up a forum in The Netherlands, at which no further restrictions may apply.

Did you get married in The Netherlands and are you facing jurisdiction problems?

Please feel free to contact our offices for additional information or advice as advising both national and foreign clients concerning the impact of filing for divorce is part of our expertise and daily practice.