How legal mediation can help when ending a relationship

Sabrina de Jong is a family law and inheritance law specialised attorney and mediator, working in Amsterdam and guiding expats on a daily basis. In this article, she gives an overview of  the legal issues to take into consideration when separating and why mediation could be a good choice.

For most people, ending a relationship - whether you are married, having a registered partnership or living together - has a big impact on their life. There are so many questions: Where to begin, what needs to be arranged (financially and/or legally) and what if there are minor children involved?

The administration of ending a relationship

To make sure all legal and practical issues are considered, a mediator can be helpful in guiding talks and making sure everything is discussed and agreed upon in an equitable manner. Here are a few of the things that may need to be considered:

Do any formal steps need to be taken to end the relationship?

This depends on the legal structure of your relationship.

• If you are married, you always need a judge to grant divorce via legal proceedings.
• If you are registered partners under Dutch law and if you have children, you also need the court to formalise the separation.
• If you have a cohabitation agreement it depends on the wording as to how the agreement may be terminated. In general, court proceedings won’t be necessary for this.

What does the Dutch law demand to be arranged for children after separation?

When you have minor children, the Dutch law says that you need to agree on a parenting plan. In this parenting plan, the parents lay down all the rules and agreements for after their separation that pertain to the children. These include:

1. At which address the children will be registered at the municipality.
2. What care schedule is agreed upon, including the division of holidays and festive days.
3. What share each parent takes in the costs of care and upbringing for the children.
4. Who takes care of medical practicalities (such as the dentist).

What are the financial consequences of the separation?

Another important issue to address is the financial separation between the couple. First of all, the question arises whether there is a prenuptial agreement or partnership/cohabitation agreement in place that has rules laid down for the financial relation between the partners.

If this is not the case, the applicable property regime needs to be established to determine what are mutual assets or debts and what is to be seen as private assets or debts.

Maintenance for your ex-partner

When both partners reside in the Netherlands, Dutch maintenance rules apply. Broadly, this means that if the parties are married or have a registered partnership and one party isn’t able to provide for themselves financially after the separation, the other party might be obliged to pay for spousal support. Whether this is the case depends on the financial situation of that party.

The term for spousal support depends on the length of the marriage or registered partnership and whether there are minor children involved.

Inheritance law issues

Another aspect to take into consideration is if there are claims on estates that fall into the financial settlement scope of the marriage or registered partnership. This could even be the case if the financial claim for a specific estate is not yet due because the other parent of that partner is still alive.

It is also important to check what the will of the deceased states if the inheritance falls into the (matrimonial) property regime.

Why consider mediation?

The above shows that there are quite some topics to address when separating. Mediation should be considered when both parties want to work it out together and prevent legal proceedings for which they would both need an attorney-at-law.

The benefits of mediation versus legal proceedings are:

1. It is the fastest way to come to a solution. Generally speaking, mediation can be completed in a manner of months versus legal proceedings that may take up to a year.
2. Mediation helps preserve a friendly relationship because it enables the partners to find a mutually resolved solution. In legal proceedings the judge decides, often leaving one or both parties unhappy with the outcome.
3. The parties have total control over the outcome resulting in a contract. The mediator will help the parties reach a settlement by providing a legal framework and talking through different scenarios enabling the parties to come to the best solution for them.
4. In mediation there is also room for non-judicial aspects, meaning that underlying emotional and practical aspects of the separation may be attended to.
5. Everything discussed during mediation is confidential, meaning the parties are free to express themselves and discuss different scenarios without the concern this might be used against them in legal proceedings.
6. Mediation is more cost efficient as the costs of the mediator in general are shared 50/50 and the parties do not need separate attorneys-at-law.

It is advised to choose a mediator that is also an attorney-at-law because of the various legal aspects that need to be addressed when separating.

What if mediation doesn’t work?

If mediation doesn’t work, the parties can contact an attorney-at-law for themselves to be represented by. When this happens, sometimes it is still possible to reach an amicable settlement with assistance of both attorneys. 

Are you an expat in the Netherlands and facing a separation? Please feel free to contact Sabrina de Jong to see if she is able to help you and your partner as a mediator to find the best possible solution for your situation.