International Marriage: Legal Considerations When Love Crosses Borders

It starts at the beginning: you meet someone special and the next step presents itself: moving in together or getting married. The location and scale of the wedding – whether it will be an intimate ceremony in a southern Italian village or a large-scale event in the Netherlands – is often the subject of many conversations. Less discussed, but just as important from a legal perspective, is the matrimonial property regime.

Prenuptial agreements are more than just a formality.

Many couples do not realise that, if they marry in the Netherlands without one, they automatically become subject to the limited community of property regime. They rarely consider the choice of law for the matrimonial property regime or the choice of jurisdiction for the competent court. In the absence of such provisions, the law, often with the aid of European regulations and treaties, determines which law applies and which court has jurisdiction in the event of disputes.

National or international situation?

For couples who live in the Netherlands, the situation is generally clear: Dutch matrimonial property law applies, and Dutch courts have jurisdiction in the event of divorce. The same applies if the marriage took place abroad but the couple settles in the Netherlands. The only important thing for them is that the marriage is registered in the Netherlands.

But what about international couples or couples who settle elsewhere? Can they appeal to the Dutch courts? Above all, which law applies to their matrimonial property?

Applicable law in international marriages

There are many misunderstandings about this. For example, it is often thought that the place where the marriage took place or the nationality of the spouses is decisive. However, for a French/Austrian couple who married in Paris but then settled in Austria, this does not necessarily mean that French law applies. Similarly, Dutch law does not automatically apply to the marriage of a Dutch couple living in Singapore. The decisive factor is whether the 1978 Hague Marriage Property Convention or the 2016 Marriage Property Regime Regulation (EU) 1103 applies.

• For marriages concluded between 1 September 1992 and 29 January 2019: The applicable law is determined by the Hague Marriage Property Convention of 1978. This convention always applies, regardless of the couple's nationality. The Netherlands applies the convention's rules even if the couple's country is not a party to it. Even if the convention refers to the law of a country that is not a party to the convention, the Dutch court will apply that law. If the spouses have chosen the applicable matrimonial property law, that law applies. Otherwise, the rules of the convention apply. In cases involving different nationalities, the law of the first place of common residence after marriage applies. For the French/Austrian couple married in Paris, this means the following: If they move to Austria within six months of getting married, Austrian law applies. However, if they live in Paris for a year first and then move to Austria, France is considered the spouses' first marital domicile and French law applies. If the spouses have the same nationality, their national law usually applies unless they have lived elsewhere for more than ten years.

• For marriages concluded after 29 January 2019: The European Regulation on Matrimonial Property Regimes applies. The main rule is the law of the spouses' first joint place of residence after the marriage. If this is not applicable, the spouses' nationality at the time of marriage applies. If this is also missing, the country with which the spouses have the closest connection is taken into account.

Country of nationality versus country of residence

Please note that not every country applies the same rules. The Netherlands is a country of nationality, meaning that Dutch law often applies to Dutch couples abroad when settling their matrimonial property. France, on the other hand, is a country of residence, meaning that for couples with French nationality, the first place of residence after marriage often determines the applicable law for settling their matrimonial property.

Why legal advice is essential

The absence of a prenuptial agreement can have major consequences in the event of divorce or death. International couples also run the risk of multiple legal systems coming into play, with complex and sometimes unexpected outcomes.
We therefore advise you to seek legal advice in good time and to draw up a prenuptial agreement that suits your personal and international situation.

Contact our specialists

Do you have questions about your international marriage, drawing up marriage contracts, or would you like to know which law applies to your situation? Please contact Sandra Verburgt,  she will be happy to assist you.