If you come to the Netherlands from abroad, you may need to have a foreign court decision recognised or enforced here. Given the complexities of private international law, Franssen Advocaten has provided a short introduction to the recognition and enforcement of foreign judgments in four areas of family law: divorce, parental responsibility, matrimonial property and maintenance.
The chances of being able to enforce a foreign judgment here will depend on the country of origin of the judgment as well as on the type of judgment. In general, it will be easier to enforce a judgment from an EU Member State such as Sweden than from Japan or another non-EU country. If your non-EU country is bound to the same convention as the Netherlands, enforcement may still be quite straightforward. Such could be the case with an Australian parental responsibility court order, for example.
Since re-litigating in the Netherlands can be a costly and time-consuming affair, a consultation with a lawyer specialised in international family law is advisable.
Recognition and / or enforcementThere is a distinction between recognition and enforcement. Depending on the type of family law issue, only the recognition of the foreign judgment may have to be sought. For example, if you wish to have a divorce decree transcribed into Dutch civil status, which can be done without requiring any other measures to enforce.
Both European and Dutch rules will generally ensure recognition of your foreign divorce decree. But what if the same divorce decree also incorporates important decisions such as maintenance and / or parental responsibilities (like custody)? For a private international lawyer, these issues need to be distinguished and treated as separate issues.
EU or non-EUThe rules will generally vary according to whether the foreign judgment, for which recognition or enforcement is sought, was given in an EU Member State or in a state linked to the Netherlands by a convention. If that is not the case, the “ordinary” Dutch rules regarding recognition and enforcement will apply.
Family Law in the EUAlthough family law itself remains the competence of individual EU Member States, over the past decades, several EU regulations have been developed to determine in which EU state the courts have jurisdiction and to help implement decisions. Some but not all regulations also help determine the applicable law.
The Brussels IIa Regulation (2003) deals with a wide range of issues including recognition of marriage, legal separation, divorce, parental responsibility (custody), contact orders and child abduction. In more recent years, other EU Regulations have been put into place which address the allocation of matrimonial property, as well as succession matters. Nonetheless, some specific areas of family law have so far, however, remained unregulated by EU rules (including the recognition of determination of parentage in another EU Member State).
The Hague conventionsAn international organisation based in The Hague, The Hague Conference of Private International Law, has drafted several important conventions which potentially affect the daily lives of many expats in the Netherlands and, because many countries outside the EU are also party to some of these “Hague conventions”, it can be said that their impact has a more “global” dimension”.
For example, in the case of the Hague Child Protection Convention, if you wish to have a custody decision from the Dominican Republic enforced, this can in principle be done in the Netherlands under said convention. Other Hague conventions have re-acquired practical relevance in a regional context as well. Thus, because of Brexit, a convention such as the 1970 Hague Convention on the Recognition of Divorces and Legal Separations has regained practical relevance for international recognition of divorce decrees coming from the UK.
Article 431 DCCPNot all foreign family law judgments are covered by European regulations or by the Hague Conventions. For example, when a Canadian judgment awards custody to one of the parents, the decision cannot be enforced under the Hague Child Protection 1996 because Canada has signed but not yet ratified this convention. This means that the “ordinary” Dutch procedure for the recognition and enforcement of the Canadian judgment will then have to be followed.
Article 431 of the Dutch Code of Civil Procedure, in conjunction with Article 985 of that same Code, incorporates the principle that foreign judgments are, in general, not enforceable in the Netherlands, unless their enforceability is determined by a specific legal provision or by an applicable international convention.
Indirect enforcement of foreign judgments in the NetherlandsArticle 431(2) of the Dutch Code of Civil Procedure offers the possibility of indirect enforcement of such (family law) judgments which typically come from non-EU (and “non-Hague”) countries. In the Gazprombank decision (HR 26 September 2014, ECLI:NL:HR:2014:2838), the Supreme Court of the Netherlands affirmed that there are two procedural options available for such cases:
A substantive reassessment of the dispute. An assessment of the power of jurisdiction of the foreign court (which is referred to as a “disguised” form of exequatur). The Dutch court will issue a Dutch judgment in line with the foreign judgment, as long as the criteria affirmed by the Dutch Supreme Court (Hoge Raad) in the Gazprombank judgment (2014) are met. In making that assessment referred under (ii), the Dutch court will take the following four criteria into account:
The jurisdiction of the foreign court that issued the judgment is accepted by international standards. The foreign judgment also ensured basic procedural principles. Recognition of the foreign judgment is not contrary to Dutch public order. The foreign judgment is not compatible with a judgment given by a Dutch court between the same parties and, with an earlier judgment given by a foreign court between the same parties in a dispute which dealt with the same subject matter, provided that that earlier judgment can be recognised in the Netherlands. If all those conditions apply, enforcement will generally be considered admissible. Your Dutch international family lawyer can assist you with the practicalities involved with this procedure under Article 431 DCCP.
Divorce and repudiationAs mentioned above, divorce involves recognition of status, so enforcement is not necessary. Moreover, the recognition of a foreign divorce decree in the Netherlands is generally also quite straightforward. If the other spouse consents or acquiesces in the decision, a foreign divorce will, in principle, be recognised in the Netherlands, whether the decision is from the EU or not.
With regards to the recognition of unilateral repudiations by one spouse, which is possible in predominantly Islamic countries such as Egypt and known as talaq, recognition of such decisions is subject to similar procedural standards as in the case of divorce. It must be shown that the other spouse therefore “acquiesces” or agrees with the foreign decision.
As for the recognition of foreign divorce decrees from an EU Member State, it is important to remember that these are recognised automatically under the Brussels IIa Regulation. After long debates, this Regulation has been changed and will start to apply in August 2022.
The Brussels IIa Regulation and its reformThe Brussels IIa Regulation contains rules to determine the jurisdiction of the divorce court and the recognition of divorce decrees in the EU. In addition, it also contains rules regarding jurisdiction as well as recognition and enforcement of decisions in the areas of parental responsibility (including custody, contact orders and child abduction) within the EU (with the exception of Denmark).
This key European Regulation does not contain rules to determine the applicable law, however; in the domain of parental responsibility, issues regarding the applicable law are covered by the Hague Child Protection Convention 1996, which, incidentally, also has rules that are relevant in determining jurisdiction, recognition and enforcement of decisions in these matters if they are from outside the EU.
The current Brussels IIa Regulation provides that a decision made in one EU Member State should be recognised and enforced in another EU Member State. This regime is based on an underlying principle of “mutual trust” between the domestic courts in the EU. Accordingly, if a contact arrangement is “valid” in Italy, for example, it will also be automatically recognised and enforceable in the Netherlands.
However, under the current regime, any interested party (like an Italian parent) may still ask the court in the Netherlands not to recognise the decision. Recognition may, under the current Regulation, be withheld if the decision infringes on public policy, if it contradicts another decision or in case of certain procedural defects.
Allocation of matrimonial propertyOn January 29, 2019, the EU Matrimonial Property Regulation started to apply within 18 EU Member States including the Netherlands. Even though recognition of the chosen matrimonial property regime is automatic, enforcement of decisions about matrimonial property still requires legal action. Enforcement follows a simple two-stage process of a declaration of enforceability under this Regulation.
MaintenanceIf an ex-spouse owes you maintenance and lives abroad, it will often be possible to take steps to recover the arrears through a government agency. In the Netherlands, the LBIO is the competent authority and will recover maintenance within the Netherlands. If the person receiving (child or spousal) maintenance lives in the Netherlands but the other party lives in another country bound by a convention, then the LBIO will try to recover the maintenance owed through one of its sister organisations for you.
Within the EU court decisions regarding spousal or child maintenance can also be enforced. On June 18, 2011, Council Regulation (EC) No. 4/2009 on the jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (“the Maintenance Regulation”) came into force. It applies to all EU Member States albeit with a few modifications for some countries. The process of exequatur was abolished under the Maintenance Regulation in relation to decisions made in those Member States bound by the 2007 Hague Protocol which determines the applicable law (i.e. all Member States except Denmark).
Where a decision of a Member State (bound by the Protocol) is enforceable in that country, it is enforceable in another Member State without the need for registration. There are no grounds for refusing to recognise the maintenance decision, but there are grounds to refuse or suspend enforcement, for instance, when the decision can be irreconcilable with a decision given in another Member State B. Under some exceptional circumstances, there will also be a right to review the decision.
A complicated area of lawRecognition and enforcement of judgments of foreign courts in the Netherlands have, by and large, become much easier over the past two decades. Even so, this remains a complicated area of private international law. Specific rules have been developed not only in the EU and in (Hague) conventions but also at the national level by the Dutch legislature regarding such issues like the recognition of foreign divorce decrees. If you want to enforce a foreign court decision, it is therefore still strongly advised to consult a Dutch lawyer with specific expertise in international family law.
When you are looking for assistance in this matter, you can contact Franssen Advocaten, a law firm specialised in international family law.