9 Which is the competent authority to turn to in cases of disputes and other legal issues?
The distribution of the community can be combined with a divorce petition. The jurisdiction for the request for distribution follows the rules concerning the jurisdiction for divorce (see Art. 4 para. 3 Wetboek van Burgerlijke Rechtsvordering = Code of Civil Procedure) as regulated in Brussels II bis. If the distribution of the community property is not combined with a divorce proceeding (for example a distribution of property is requested after a decree of divorce has been issued), Article 2 of the Code of Civil Procedure applies and the Dutch court shall have jurisdiction if the defendant has his/her habitual residence in the Netherlands.
For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.
This Regulation provides that the competent authorities will be as follows:
- For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
- In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.
- In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
- of the spouses’ common habitual residence at the time the court is seised; or failing that
- of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
- of the habitual residence of the respondent; or failing that
- of the spouses’ common nationality.
With the exception of any litigation, notaries are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract, a choice of law agreement or an authentic act wherein the matrimonial property is divided or distributed.
