Can gay couples file for divorce in the Netherlands?

Since 2001, the marriage between two persons of the same biological sex or social gender is legally recognised in the Netherlands, and with that the possibility to file for divorce.

However, in many nations it is not, and the so-called same-sex marriage or gay marriage is not merely a legal, but also a civil rights, political, social, moral and religious issue.

Same-sex divorce
The differences in national legislation with respect to same-sex marriage can lead to strange situations within an international context.

Example: A gay couple is married in a country that recognises same-sex marriages, moves house to a country that does not, and after a couple of years they decide to file for divorce.

In the country they currently live they are not able to divorce, because their marriage was not recognised in the first place. In other countries on the other hand, they need a divorce to be considered not married anymore. Gays and lesbians, just like straight people, have an (emotional) interest in having the end of their relationship officially acknowledged.

Same-sex divorce in the Netherlands
› Case 1: According to Dutch law, when both spouses have the Dutch nationality, filing for divorce in the Netherlands - even if they do not reside here - does not present a problem.

› Case 2: For same-sex couples who do not have Dutch nationality, but do have at least one partner living in the Netherlands, there should also be no problem to file for divorce in the Netherlands.

› Case 3: However, suppose you’re married to a person of your own sex, you both live outside the Netherlands, in a country that doesn’t recognise same sex marriages, and only one of you has Dutch nationality. Would it be possible for you to divorce in the Netherlands?

Competence of the Dutch court
The Dutch court is exclusively authorised to grant a divorce if both spouses have Dutch nationality and / or if both spouses live in the Netherlands and / or - under certain circumstances - if one of the spouses lives in the Netherlands.

Note that Case 3 mentioned above meets none of these conditions. This would mean that the Dutch court is not competent to consider the petition for divorce.

Australian case
Nevertheless, very recently, I did file a petition for divorce on behalf of a same sex couple married in the Netherlands, living in Australia, of whom only one of the spouses has Dutch nationality (the other is Australian).

In Australia, same sex marriage is not recognised. Therefore, the couple is not married before Australian law, which renders it impossible for them to get a divorce in Australia. Should the Dutch court be incompetent, this couple would never be able to divorce, presuming they stay in Australia. That is most unsatisfactory.

For that reason the Dutch court granted an appeal to the exception of article 9 Code of Civil Procedure, and recognised the divorce after all. This was quite unique, since exceptions to the competence rules are hardly ever made.

I am very happy with this result! This could offer other same sex couples in similar legally troublesome situations a way out.