Yes, expats in the Netherlands can choose which country’s law governs their marriage, provided that choice is made in accordance with the rules set out in the Hague Protocol on the Law Applicable to Matrimonial Property Regimes. This right of choice is available to international couples who have a genuine connection to the country whose law they wish to apply. The sections below address the most common questions expats raise about this topic, from what happens when no choice is made to how a choice of law affects divorce proceedings.
Does the Netherlands allow couples to choose their applicable marriage law?
The Netherlands does allow couples to designate which country’s law governs their matrimonial property regime, subject to conditions set out in European and international private law instruments. The applicable framework for most international couples married after 29 January 2019 is EU Regulation 2016/1103, which harmonises the rules on matrimonial property regimes across participating EU member states. Under this regulation, couples may make a formal choice of applicable law before or after marriage.
This choice is not unlimited. The regulation restricts the options to the law of a country with which at least one spouse has a genuine connection, such as habitual residence or nationality. A couple cannot simply select a legal system at random because they consider it favourable. The choice must be documented in writing, dated, and signed by both spouses to be legally valid.
It is worth noting that the regulation covers matrimonial property, meaning how assets and debts are divided between spouses. It does not govern all aspects of marriage, such as the formal validity of the marriage itself or personal obligations between spouses, which may be subject to different rules.
What happens if expats make no choice of law?
If an international couple living in the Netherlands makes no choice of applicable law, the law that governs their matrimonial property regime is determined automatically by objective connecting factors set out in EU Regulation 2016/1103. The default rule applies the law of the country where the spouses first establish their habitual residence after marriage.
For most expats who relocate to the Netherlands and marry here, or who marry abroad and then settle in Amsterdam or another Dutch city, this typically means Dutch law will apply by default. Under Dutch law, the default matrimonial property regime is community of property, though legislative reforms introduced in 2018 significantly limited the scope of that community compared to the previous rules. Assets and debts acquired before the marriage are now generally excluded from the community.
If the spouses do not have a common habitual residence immediately after marriage, the regulation looks to their shared nationality as the next connecting factor. If they hold different nationalities and have no common habitual residence, the law of the country with which the couple has the closest connection applies. This default cascade can produce results that neither spouse anticipated, which is one reason why making an explicit choice of law is often advisable for international couples.
Which country’s law can expats actually choose?
Under EU Regulation 2016/1103, expats in the Netherlands may choose the law of a country where at least one spouse is habitually resident at the time the agreement is made, or the law of any country of which either spouse is a national at the time the choice is made. These are the only two permitted bases for a valid choice of law.
In practical terms, this means a Dutch-American couple living in Amsterdam could choose to apply either Dutch law or the law of a specific US state, provided that state’s law can be identified as the national law of the American spouse. A French-British couple could choose French or British law. What neither couple could do is choose, for example, Swiss law simply because they find it attractive, if neither spouse holds Swiss nationality or habitual residence there.
The following criteria summarise the permissible choices:
- The law of the country where one or both spouses habitually reside at the time of the agreement
- The law of any country of which either spouse is a national at the time of the agreement
- The choice must be expressly stated in a matrimonial property agreement or result clearly from the terms of such an agreement
- The agreement must be in writing, dated, and signed by both spouses
It is also important to recognise that some countries have multiple legal systems, such as the United Kingdom or the United States. In those cases, the relevant sub-system (for example, English law or the law of New York) must be identifiable. The regulation provides guidance on how to handle such situations, but the specifics can be complex and benefit from professional legal advice.
How does the chosen law affect divorce proceedings in the Netherlands?
A valid choice of applicable law for the matrimonial property regime will directly influence how assets and debts are divided if the marriage ends in divorce. Dutch courts will, in principle, apply the chosen foreign law to the division of matrimonial property, even when the divorce itself is processed in the Netherlands.
This can have significant practical consequences. If a couple has chosen French law, for instance, the Dutch court will need to determine what the French matrimonial property regime provides and apply those rules to the couple’s assets. This may require expert evidence on the content of the foreign law, which adds complexity and cost to proceedings.
It is important to distinguish between the law governing matrimonial property and the law governing the divorce itself. These are separate questions governed by different instruments. EU Regulation No 1259/2010 (Rome III) determines which country’s law applies to the divorce, and that choice operates independently of the matrimonial property choice. A couple could, for example, have chosen Dutch law for their matrimonial property but find that the law of another country applies to the grounds and conditions for their divorce.
Maintenance obligations following divorce are governed by yet another instrument, the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations. The interplay between these different frameworks means that the overall legal picture in a cross-border divorce can be considerably more intricate than in a purely domestic case.
Can expats change their choice of applicable law after marriage?
Yes, expats can change their choice of applicable law after marriage, and they can also make a choice of law for the first time after the wedding if no prior agreement was reached. EU Regulation 2016/1103 explicitly permits spouses to change the law applicable to their matrimonial property regime at any time during the marriage, not only before it begins.
However, a change of applicable law does not automatically have retroactive effect. The new law will generally apply from the date the agreement takes effect, unless the spouses expressly agree that the change should apply retroactively to the entirety of their matrimonial property. Even where retroactive effect is agreed, this cannot adversely affect the rights of third parties, such as creditors, who relied on the previous legal position.
The formal requirements for changing the choice of law are the same as for making the original choice: the agreement must be in writing, dated, and signed by both spouses. In some countries, including the Netherlands, additional formalities such as notarisation may be required depending on the content of the agreement. Couples considering a change should seek legal advice to ensure the new agreement is properly executed and that they understand its consequences for existing assets, debts, and any prior arrangements.
What legal steps should expats in the Netherlands take to formalise a choice of law?
Formalising a choice of applicable law in the Netherlands involves several concrete steps. The process begins with identifying which country’s law the couple wishes to apply and confirming that at least one spouse has the required connection to that country, either through habitual residence or nationality.
The recommended steps are as follows:
- Seek specialist legal advice from a lawyer experienced in international family law and private international law before drafting any agreement. The interaction between EU regulations, Dutch domestic law, and foreign legal systems requires careful analysis.
- Draft a matrimonial property agreement that clearly and expressly states the chosen law. The agreement must be in writing, dated, and signed by both spouses.
- Consider notarisation. In the Netherlands, matrimonial property agreements are typically executed before a civil-law notary (notaris). This is a formal requirement under Dutch law for agreements that alter or establish the matrimonial property regime, and it provides legal certainty for both spouses and third parties.
- Register the agreement if required. In the Netherlands, matrimonial property agreements can be registered in the matrimonial property register held by the courts, which provides notice to third parties such as business partners and creditors.
- Review the agreement periodically, particularly if circumstances change, such as a move to another country, a change in nationality, or a significant shift in the couple’s financial situation.
Expats should also be aware that a choice of law agreement made in the Netherlands may need to be recognised in other countries where the couple holds assets or may later reside. Recognition is not always automatic, particularly in countries outside the EU that are not party to the Hague Convention on Matrimonial Property Regimes. Cross-border legal advice is therefore essential for couples with assets or ties in multiple jurisdictions.
How Russell Advocaten Can Help Expats with Choice of Law Questions
Russell Advocaten is an internationally oriented law firm based in Amsterdam with long-standing experience advising expats on a broad range of legal matters, including family law, immigration, contracts, real estate, and setting up a business in the Netherlands. The firm’s lawyers are fluent in English, German, and Dutch, which means international clients can discuss complex legal questions in their preferred language without relying on intermediaries.
For expats navigating questions about applicable marriage law, Russell Advocaten offers practical support that covers the full scope of the issue:
- Assessing which country’s law applies to your matrimonial property regime by default and whether a choice of law is appropriate for your situation
- Advising on the permitted options under EU Regulation 2016/1103 based on your nationalities and habitual residence
- Guiding you through the formal requirements for drafting and executing a valid matrimonial property agreement in the Netherlands
- Explaining the consequences of a choice of law for divorce proceedings, asset division, and third-party rights
- Coordinating with the firm’s international network through Primerus, covering 3,000 lawyers in 40 countries, for cross-border matters involving assets or legal systems outside the Netherlands
Russell Advocaten is an official partner of IN Amsterdam, the expat centre of the City of Amsterdam, and has been recommended by the Legal 500 for many years. If you have questions about legal advice for expats in the Netherlands or wish to discuss your specific situation, do not hesitate to contact Russell Advocaten directly.
This information is general in nature and does not constitute legal advice for your specific situation. Please consult a lawyer at Russell Advocaten for advice tailored to your circumstances.
Veelgestelde vragen
Does a choice of law agreement made in the Netherlands automatically apply to property we own in other countries?
Not necessarily. While a valid choice of law under EU Regulation 2016/1103 is binding within EU member states that participate in the regulation, countries outside the EU are not obligated to recognise it. If you own real estate or other significant assets in a non-EU country, that country’s own private international law rules will determine whether your choice of law agreement is recognised. This is why cross-border legal advice covering all jurisdictions where you hold assets is strongly recommended.
What is the difference between a choice of law agreement and a prenuptial agreement, and do we need both?
A choice of law agreement designates which country’s legal system governs your matrimonial property regime, while a prenuptial agreement (or matrimonial property contract) sets out the specific rules for how your assets and debts are handled within that chosen legal framework. In practice, the two are often combined into a single notarised document in the Netherlands. However, they serve distinct purposes: the choice of law determines the applicable rules, while the prenuptial agreement can customise those rules within the limits permitted by the chosen law. Whether you need one or both depends on your personal circumstances and goals.
What happens to our choice of law agreement if we move out of the Netherlands to a non-EU country?
If you relocate to a country outside the EU, the enforceability of your choice of law agreement will depend on the private international law rules of your new country of residence. Some non-EU countries are parties to the 1978 Hague Convention on Matrimonial Property Regimes, which provides a framework for recognising such agreements, but many are not. It is essential to seek legal advice both in the Netherlands before you leave and in your destination country upon arrival, to assess whether your existing agreement remains effective and whether any supplementary steps are needed.
Can one spouse be disadvantaged by a choice of law agreement, and are there any protections against this?
Yes, it is possible for a choice of law to favour one spouse over the other, particularly if the chosen legal system provides significantly fewer rights to one party upon divorce or death. EU Regulation 2016/1103 does include a limited public policy exception, allowing a court to refuse to apply a foreign law if doing so would be manifestly contrary to the public policy of the forum state. However, this is a narrow safeguard and is not a substitute for informed legal advice. Both spouses should obtain independent legal counsel before signing any choice of law or matrimonial property agreement to ensure they fully understand the implications.
Does our choice of law for matrimonial property also cover inheritance if one of us passes away?
No, your choice of law for matrimonial property does not automatically extend to inheritance matters. Succession is governed by a separate EU instrument, EU Regulation No 650/2012 (the EU Succession Regulation), which has its own rules for determining the applicable law and its own limited choice of law provisions. This means the law that governs how your estate is distributed after death may differ from the law governing your matrimonial property regime during your lifetime. Expats with assets in multiple countries should address both matrimonial property and succession planning separately, ideally with coordinated legal advice.
We married before 29 January 2019 — does EU Regulation 2016/1103 still apply to us?
EU Regulation 2016/1103 generally applies to couples who married or registered their partnership on or after 29 January 2019. For couples who married before that date, the rules that applied at the time of the marriage continue to govern the matrimonial property regime, which in the Netherlands means the older Dutch private international law rules. However, couples married before 2019 may still be able to make or change a choice of law agreement going forward, subject to the applicable transitional provisions. If you are unsure which framework applies to your situation, a specialist in international family law can clarify this based on your specific circumstances.
How long does it take to formalise a choice of law agreement in the Netherlands, and what does it typically cost?
The timeline and cost vary depending on the complexity of your situation and the legal systems involved. In straightforward cases where both spouses agree on the choice of law and the content of the agreement, the process can typically be completed within a few weeks once legal advice has been obtained and the notary appointment is scheduled. Costs include legal fees for drafting and advising on the agreement and notarial fees for executing it. While it is difficult to give a fixed figure without knowing the specifics, couples should view this as a worthwhile investment given the significant financial and legal consequences that can arise from an unplanned or disputed matrimonial property regime.
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