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The Netherlands (Holland) - Legal Issues
If you are involved in a legal case or need to take legal action in the Netherlands, you may need to use the services of a lawyer or other legal professional. This will depend partly on the nature of the case.
In civil law cases which are held in the sub-district sector of the District Court, including many small claims, rent law and labour law cases, it is not mandatory to have legal representation. For cases held before the District Court, the Court of Appeals and the Netherlands Supreme Court, professional legal representation is required.
For criminal law cases, it is not officially necessary to have legal representation, but a lawyer is always assigned to anyone taken into police custody.
Lawyers charge for their services but may provide initial consultations free of charge. They usually specialise in particular areas of the law.
People with income below a specified level are eligible for government-subsidized assistance from legal aid agencies. These can provide up to 3 hours of consultation for small fee of €13.50, or can apply for government subsidization of their costs for ongoing consultation or legal representation, with a small fixed cost payable by the client. For people who do not qualify for legal aid, it is possible to take out legal aid insurance.
Mediators are increasingly used in the Netherlands in divorces and other legal cases, and may help to resolve a case without going to court. There is a charge for mediation services, payable in equal shares by both parties involved in the mediation unless another payment arrangement is agreed on. The costs of mediation are usually significantly less than the cost of taking a case to court.
General legal advice is also available from a range of organisations and individuals in the Netherlands including the municipal citizens’ advice department, bailiffs, trade unions, the Consumers’ Association, the ANWB and the Home-Owners’ Association. legal advice centres and consumer organisations
The Ministry of Justice
Internal and External Communications Division
2500 EH Den Haag
Tel: 070-370 6850
Amsterdam Legal Aid Council
1040 HC Amsterdam
Tel: 020-580 5999
Arnhem Legal Aid Council
6800 AX Arnhem
Tel: 026-351 8051
Den Bosch Legal Aid Council
1e Straatje van Best 10-12
Postbus 70 503
5201 CD Den Bosch
Tel: 073-681 4100
Leeuwarden Legal Aid Council
St. Jacobsstraat 24
8901 BA Leeuwarden
Tel: 058-233 6233
The Hague Legal Aid Council
Laan van Meerdervoort 51
2501 CI. The Hague
Tel: 070-370 1414
Dutch Bar Association (Nederlandse Orde van Advocaten)
Postbus 30 581
2500 GW The Hague
Tel: 070-335 3535
Consumers’ Organisation (Consumentenbond)
2500 BA The Hague
Tel: 070-445 4545
Home-owners’ Organisation (Vereniging Eigen Huis)
3800 AS Amersfoort
Tel: 033-450 7750
Gemeente Den Haag (Registrar’s Office, City of the Hague)
2500 DL Den Haag
Tel. +31 70 353 2810
ANWB Legal Assistance
Postbus 93 200
2509 BA The Hague
Tel: 070-314 7766
National Association of Citizens’ Advice Departments
(Landelijke Vereniging van instituten voor Sociaal Raadsliedenwerk)
4100 AM CULEMBORG
Tel: 0345 530495
Marriage and Legal Partnerships
In the Netherlands, three types of partnerships between heterosexual and homosexual couples are officially recognized: civil marriage, registered partnerships and cohabitation agreements. Registered partnerships involve the same procedure and most of the same rights as marriages, with the exception of those relating to children. Whilst cohabitation agreements must be drafted by a notary, their legal significance is much more limited and is confined to the issues that the partners decide to cover in the agreement.
Homosexual couples have been allowed to marry in the Netherlands since 2001; before this they had been allowed to enter into registered partnerships since 1998.
Couples can only marry in the Netherlands if at least one partner is a Dutch citizen or has a long-stay residence permit. Non-Dutch nationals entering the country to marry a Dutch national or long-stay resident may be required to pass a language and integration test before a visa is granted. Non-EU citizens who do not have residence in the Netherlands are required to obtain permission from the Aliens Department of the police station (vreemdelingenpolitie) to marry a Dutch national or Dutch resident.
There is a legal requirement to post a notice of marriage (ondertrouw) at the registrar’s office of the municipality (gemeente), between two weeks and a year in advance of the wedding date. Although the wedding does not have to take place within either of the partners’ municipality of residence, the notice of intent to marry must be posted in one of these. If both partners live outside the Netherlands, the notice must be posted in The Hague. In order to obtain permission to marry, you will be required to provide the registrar with proof of identify and residence in the Netherlands and to declare your single status, providing evidence if necessary of any divorce papers or other relevant documentation. Any documents issued overseas must be legalized with an apostille stamp. Once approval to marry is issued, this is valid for one year.
Religious marriage ceremonies are not recognized in Dutch law, although many couples undergo a religious ceremony after the civil one. The minimum legal age for marriage in the Netherlands is 18, although exceptions are made for younger women who are pregnant. All civil marriage and registered partnership ceremonies must be conducted by a registrar (ambtenaar van de burgerlijke stand), and at least two but not more than four witnesses must sign the marriage certificate. Witnesses can be of any nationality.
Popular venues for civil marriage ceremonies include castles and other historic buildings and a wide range of other scenic locations, some outdoors, although the actual signing of the register must take place under cover. The fees for a civil marriage ceremony vary considerably depending on the location, day and time, and are typically between €40 and €600. Weddings are often held on weekdays, when the fees are considerably cheaper than at weekends. A free civil ceremony is usually available first thing on Monday and Wednesday mornings at the registrar’s office (gemeentehuis).
Following the ceremony, a marriage or registered partnership must be recorded in the Registry of Births, Deaths and Marriages (Burgerlijke Stand) in the couple’s municipality of residence.
The common convention of a wife taking her husband’s surname is not always followed in the Netherlands, where husbands sometimes adopt their wife’s surname after marriage or where both partners continue to use their own surnames. Another difference between the Netherlands and other countries is that wedding rings are typically worn in the Netherlands on the third finger of either hand, not just on the left hand.
Matrimonial Property Law
Matrimonial property law in the Netherlands is based on the general community property law. The implication of this is that, unless a marriage contract is drawn up which specifies otherwise, all the assets and debts of each partner acquired before or during the marriage are deemed to belong to both partners once they marry or enter into a registered common-law partnership. Each partner has the right in law to manage the assets that they brought into the marriage or partnerships, although the consent of the other partner is needed in the case of some major transactions. On termination of the marriage or partnership as a result of divorce or the death of one of the partners, the community property is divided equally.
At the time of marriage or after at least one year of marriage, a prenuptial agreement or marriage contract can be drawn up by a civil law notary and included in the public matrimonial property register, which is available for the public to view. The provisions of such an agreement can override the general community property law by specifying each partner’s rights and liabilities regarding assets and debts.
The Netherlands, along with France and Luxembourg, has incorporated into its own marriage laws the Hague Convention on the Law applicable to Matrimonial Property Regimes, which determines which country’s laws apply to those couples who were married outside the Netherlands, or in which each partner has a different nationality. Under the terms of this Convention, couples within either of these categories, whose marriage took place after 31st August 1992, are deemed to be subject to the marriage laws of the country in which they settled directly after their marriage, or to the marriage laws of the country that they subsequently emigrated to or became citizens of.
For people moving to the Netherlands who were married in a different country, the Dutch system of general community property will apply automatically after ten years of living in the Netherlands, or immediately if both partners are of Dutch nationality. Under the terms of the Convention, couples can specify in a marriage contract a different national law to govern their marriage, which must be the law of a country of which at least one of them is a national or resident. However, the terms of a contract drawn up in the Netherlands may not apply within another country if it is not a signatory of The Hague Matrimonial Property Treaty. It is necessary to ensure that the terms of the marriage contract are registered with a Dutch court in order to make them legally binding where third parties such as creditors are concerned; their validity is also dependent on the debt having been incurred at a time when the debtor and creditor were both in the Netherlands.
Divorce in the Netherlands is always on the grounds of irreparable breakdown of the marriage. Divorce can be by mutual request or by request of one of the spouses, and proceedings are started by means of a joint or unilateral petition. There is no requirement for the partners to have been married for a certain length of time before starting divorce proceedings.
If a divorce is by mutual request and is uncontested it is not necessary for the parties to go to court. The divorce settlement can be drawn up by a lawyer, signed by both partners and sent to court for authorization, which is always given if both partners have signed the agreement. The divorce comes into effect once the agreement is registered with the city registry. The whole process typically takes around four weeks.
If the divorce or divorce settlement is contested by one of the partners, it will be necessary for both partners to be represented by lawyers and to attend a court hearing, on the basis of which a judge will make a ruling on the divorce or on the details of the settlement. It is common practice to hold a preliminary and final hearing, and either partner can appeal against the judge’s decision. The divorce comes into effect when the court ruling has been entered in the register of births, deaths and marriages, and this must occur within six months of the ruling.
There is also a fast track divorce procedure (Flitsscheiding) in the Netherlands. This has developed on the basis of a loophole in the registered partnership laws and is based on the marriage being downgraded to a ‘registered partnership’ and dismantled by a lawyer, with the mutual consent of both spouses. However, this type of divorce is not recognized outside the Netherlands.
Legal separation is also used in the Netherlands, for example by couples who do not wish to divorce for religious reasons or who are undecided about whether they wish to divorce. If a couple who are legally separated decide to submit a divorce petition, this can be done at any time if they are both in agreement, but there is a three-year waiting period, sometimes reduced to one year, before one of the former spouses can submit a unilateral petition for divorce.
The use of mediation is very common in the divorce process in the Netherlands. Divorce mediators provide advice to the couple on how to deal with issues such as property and the custody of children, and assist them to come to arrangements which they are both content with. These are recorded in a written divorce agreement, which may be used by the court in the divorce hearing. The views of children aged over 12 may also be sought by the court.
Both divorce and legal separation have implications with regard to marital property, the custody of and maintenance for children, alimony and pension rights, and these issues should be addressed in any divorce petition and in the divorce settlement.
Unless different arrangements were made in a prenuptial agreement or marriage contract, matrimonial property is generally split equally between the partners in a divorce settlement, as is any pension entitlement which was built up during the period of the marriage.
Custody of the children is normally retained by both divorced partners unless they agree or the court rules that a different arrangement is in the best interest of the children. The court will rule on child support arrangements taking into account the partners’ respective income and the costs involved. Parents must provide financial support for children until they reach the age of 18, or 21 if they remain in full-time education. Child benefit is payable to the parent who continues to live with the children, while the other parent receives a tax allowance in respect of any regular contribution towards the cost of child maintenance. Visitation rights are also ruled on by the court.
There is also a legal obligation for spouse maintenance to continue following divorce. The basic principle is that the partner who earns more is required to pay alimony for up to 12 years, if the marriage lasted for at least five years or if the couple have children, or for a shorter period if there are no children or the marriage lasted less than five years. However, the court ruling may specify different arrangements, depending on the financial circumstances of each partner.
Under the terms of the Hague Inheritance Treaty 1989, Dutch inheritance law applies if a deceased person was of Dutch nationality and was living in the Netherlands when they died; if they were not of Dutch nationality but had been living in the Netherlands for at least 5 years before the date of their death, or if their will specified that Dutch inheritance law should apply to their estate.
In order for a will to be legally recognized in the Netherlands, it must be drawn up by a Dutch public notary. However, a Dutch will may not necessarily be recognized in the legal systems of other countries, particularly as it applies to property and assets outside of the Netherlands.
If no will has been made by a Dutch national or Dutch resident, the law will determine who the heirs to the person’s estate are. Four categories of heirs are recognized in Dutch law, with children, grandchildren and spouses or registered partners having priority entitlement to an equal share of the estate, followed by siblings, parents and nephews and nieces, and then by grandparents and great-grandparents, respectively. Relatives within each of these categories are only eligible to inherit property if there are no eligible relatives within the preceding category.
Unless a will specifies otherwise, a spouse or registered partner will inherit all of the deceased person’s assets and debts under intestate succession, with the children only being able to make a monetary claim on their share if that person dies, is declared bankrupt or remarries. There is a provision in Dutch law for all children of a deceased person to have a statutory claim to a fixed minimum value of their estate, although the terms of a will may delay the claiming of this until the deceased person’s spouse or registered partner dies. A disinherited spouse or register partner may be eligible to make a claim on property or domestic possessions if they can prove a need for these.
Taxes are normally payable in the Netherlands on the estate of anyone who is resident in the Netherlands at the time of their death, with residence status being determined on the basis of such factors as having a home in the Netherlands or family members living there with them. Partial non-resident taxpayers, who qualified for the 30% tax ruling, are also regarded as resident in the Netherlands for the purpose of inheritance tax. In some cases, double taxation may be payable on the estate of non-Dutch nationals, unless the Netherlands has a tax treaty or other agreement with their home country which is intended to avoid this situation.
Under the Inheritance Tax Act which came into effect in January 2003, three different types of taxes may be payable in respect of the estate of a deceased person: inheritance tax, transfer tax and gift tax.
In principle, inheritance tax is payable on all inheritances from the estate of a person who was a Netherlands resident immediately prior to their death, but there are exemptions based on the closeness of relationship to the deceased. The 2007 inheritance tax exemption for married spouses is €515,928; children aged below 23 benefit from an inheritance tax exemption of €4,412 for each year below the age of 23, while an exemption €10,000 is applied to children older than 23 years, if the total inheritance does not exceed €26,455. “Double progressive” rates of inheritance tax are applied to assets whose value exceeds the exemptions, with higher rates payable on more expensive assets and by more distant relatives or non-relatives.
Inheritance tax rates are based on the market value of the inherited property, less deductions for liabilities such as debts and funeral costs. The rates also vary depending on closeness of relationship to the deceased, with spouses, children and common law partners being subject to rates between 5% and 27%, parents and siblings to rates between 26% and 53%, and non-relatives having to pay between 41% and 68% of the value of inherited assets. No inheritance taxes are payable by charitable or educational bodies or other non-profit organisations.
Transfer taxes are based on the market value of the Dutch property and are set at a 2007 rate of 6%, with no exemptions. These are payable when specified domestic assets such as real estate are inherited or received as a gift by Netherlands residents from a deceased person who lived outside of the Netherlands.
Gift taxes are payable on the value of any assets received as a gift from living individuals who are resident in the Netherlands, and are set at the same rates as inheritance tax.
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