Adultery, deceit and prenuptials: a Dutch divorce case study

The Legal Expat Desk (LED) is an information hub by GMW Advocaten, advising the expat community in the Netherlands since 2006. LED regularly publishes articles covering a wide spectrum of legal topics.

This article covers Dutch divorce proceedings. By way of a case study, it shows that people's behaviour within a relationship does not necessarily affect the court ruling.

When requesting a divorce in the Netherlands, many people still believe they need a concrete reason to justify their decision to the courts.

Couples believe that the legal system is still interested in the grounds for divorce. However, this has become a common misconception, because the surprising truth is that Dutch courts are no longer interested in why a couple wants to split.

Consequently, the reasons for marriage failure - even if emotionally very grave - do not necessarily influence how the court considers each spouse during divorce proceedings, or have any impact on the prenuptial agreement.

Reasons for divorce: Adultery, abuse or irreconcilable differences

In a petition for divorce, all that needs be stated is that "the marriage has irretrievably been disrupted". This is a catch-all term covering any factor that can spell the end of a marriage.

Such factors include adultery, abuse or simply irreconcilable differences which make it impossible to remain married.

Legal proceedings during emotional times

Someone who is still dealing with the immediate emotional aftermath of a decision to divorce, whether or not it was their choice, cannot be expected to be entirely objective, and even less to make sensible decisions in such a fragile emotional state.

A cautionary case study

A divorce ruling by the Court of Appeal in The Hague is an interesting example of how legal jurisdiction does not always take emotional manipulation or dishonest intentions into consideration - and how that can affect the division of property.

The facts

A man and a woman are in a relationship (but not yet married) and live together in the man’s house. The woman then discovers she is pregnant and they decide to get married.

Before the wedding, they have a notary draw up a prenuptial agreement. One of the stipulations of the agreement was that, "in the event of divorce, the home and the mortgage on it will be included in the divorce settlement".

In 2010 the couple marry and the baby is born. One year later, a DNA test reveals that the man is not the baby’s father and he promptly files for divorce.

The husband has been deceived, which is awful of course; he entered into the marriage in the assumption that he and his wife were expecting their baby.

What the husband did not know was that he had not fathered the baby.

Marriage under false pretenses?

In the divorce proceedings, the husband invokes the grounds of reasonableness and fairness, arguing that he cannot be held to the prenuptial agreement.

The husband’s reasoning is as follows:

› The wife used her pregnancy to trap him and persuade him to marry her, under the misapprehension that he was the father.

› The wife was interested only in financial gain (in other words, she was a gold digger) because the stipulation about the home was included in the prenuptial agreement at her explicit request.

› The wife should have told the husband about her infidelity.

In short, the husband states that the wife misbehaved and he would never have married her had he known that he was not the baby’s father.

The court sides with the husband, but the wife appeals.

The appeal

The Court of Appeal takes an entirely different view of the case, believing that the husband failed to prove he was unaware of his wife’s deceit when they married, as he already had reason to suspect he may not be the child’s father.

The Court of Appeal makes this assumption despite the fact that the husband submitted numerous witness statements to the proceedings.

What comes to light during the hearing? The husband knew that the wife had already deceived him on a number of occasions and that, while in a relationship with him, she had twice fallen pregnant to other men!

The court thus decided the husband was forewarned when he entered into the marriage.

Impact on the prenuptial agreement

Perhaps unnecessarily, the Court also declared that even if it was proven that the husband was not aware of the wife’s deceit when they married, the ruling would have been no different.

This is because none of the circumstances of the case are unusual enough to justify waiving the prenuptial agreement on the grounds of reasonableness and fairness.

Consequently, the Court believed there was no connection between the prenuptial agreement and presumed paternity.

Forewarned is forearmed

In our legal practice, we understand that life in general, and divorce in particular, are emotional matters. For many people, an affair is the worst thing that can happen in a marriage and we are always willing to lend a sympathetic ear.

From a legal perspective however, the above case study shows that if one party enters into a marriage in the Netherlands under false pretenses, little can be done about it.

The deceiving partner is treated no differently than the partner who entered into the marriage with the best intentions.

So take special care or seek legal advice when you draft and settle on a prenuptial agreement, as most likely it will be binding - regardless of who misbehaves within the marriage!
 

Susan Meijler is a specialist in Family Law at GMW Advocaten / Legal Expat Desk. For more information, please comment below or contact her directly.