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DUTCH FAMILY LAW IN THE 21ST CENTURY: TREND-SETTING AND STRAGGLING BEHIND AT THE SAME TIME
The private international law aspects are not included in this report although these aspects belong to the topical issues of today with regard to the Dutch same-sex marriage and the possibility for same-sex partners to adopt a child. The Netherlands takes a unique position when it comes to marriage although some European countries have introduced the notion of the registered partnership. If either at least one of the partners is a Dutch national or habitually resident in the Netherlands, the question as to whether they may marry will be dealt with under Dutch law. Whether the law of the country of which the non-Dutch partner is a national permits same-sex marriage is irrelevant. Therefore, all the countries in the world need to prepare themselves as to how they will legally react in case their nationals or authorities are confronted with the new Dutch institutions. Presently, it seems that the Dutch same-sex marriage or adoption will not be recognized in other countries due to a conflict with their public order. It is interesting to witness whether this situation will change in the next few years. Will other countries follow the Dutch approach or will the Netherlands remain isolated as a pioneer?
The Act Opening Marriage to Same-Sex Couples of 21 December 2000 entered into force on 1st April 2001. Article 1:30, which used to determine that a marriage could only be concluded between a man and a woman, contains the most important change. It now states in its first section that two persons of the opposite sex or two persons of the same sex may conclude a marriage. The world première of such a same-sex marriage took place in Amsterdam. Just after midnight the mayor, who in his former capacity as the State Secretary of Justice had been advocating the Act in Parliament, concluded the first four marriages between same-sex partners. In 2001, in total 2,387 same-sex marriages were concluded between 1,325 male couples and 1,062 female couples. In most cases, the same-sex couples had previously concluded a registered partnership, which was transformed into a marriage. In addition, it is worth mentioning that more than 82,000 heterosexual marriages were concluded in the same year. The first figures on same-sex marriages do not yet allow any far-reaching conclusions.
However, the figures on registered partnerships that are shown below, obviously indicate that there is a relationship between the use of both institutions.
Which conditions need to be fulfilled to enter into a marriage? To begin with, it is worth stressing that in the Netherlands the principle of a monogamous marriage is still upheld (Art. 1:33). This means that no one in the Netherlands may marry more than one person at the same time and anyone wanting to marry may not already be married or be party to a registered partnership with a person other than the future spouse (Art. 1:42). During the discussions on the opening of marriage to same-sex couples, however, opponents sarcastically questioned whether a special form of polygamous marriage, where three or four persons are married with each other at the same time, would probably be the next step. In fact it remains to be seen whether the Dutch Government will create legal relationships à la carte. On the other hand, if merely five years ago someone would have prophesied that two men or two women would be allowed to enter into a marriage almost everyone would have thought that this idea was completely utopian. In addition to the requirement of monogamy anyone wanting to marry must be 18 years of age or older (Art. 1:31) and with regard to consanguinity a marriage is not allowed between parents and children, grandparents and grandchildren or brothers and sisters (Art. 1:41,1).
In case both partners are non-Dutch nationals and living abroad, they may not marry in the Netherlands. They are only allowed to do so if (1) at least one of them is resident in the Netherlands; (2) one of them is a Dutch national if both partners live outside the Netherlands or (3) if both partners live in the Netherlands when neither of them is a Dutch national.
The consequences of marriage between two men or two women are much the same as those of a marriage between a man and a woman. There is no difference with regard to the law regulating the surname of the spouses, maintenance, general community of property, pensions, legal transactions, inheritance and relationship by marriage.
The major differences between a heterosexual and a homosexual marriage, however, relate to children.
Three years before the Act Opening Marriage to Same-Sex Couples entered into force a new institution was introduced into Dutch family law. On 1st January 1998, the Act on Registered Partnerships came into force. Since that date, two persons can enter into a registered partnership, their sex being irrelevant (Art. 1:80a/3). To put it concisely, the registered partnership hardly differs from the marriage. The substantive conditions, the formalities, the conclusion, the ceremony, the annulment and the proof of a registered partnership are governed by rules equivalent to those concerning marriage. In fact, a registered partnership has the same effect as a marriage. ‘Effects of marriage’ is to be understood in the strict sense, that is to say excluding divorce. In addition to this difference the registered partnership creates no relationship of filiation between the child of one partner and the other partner.
Registered partnerships concluded between 1998 and 2001
The figures above show that the registered partnership has considerably lost its attractiveness for same-sex partners whereas the number of registered partnerships between opposite-sex partners spectacularly increased. The remarkable reduction of the number of same-sex partnerships is certainly interrelated with the opening of marriage for these couples since 1st April 2001. On the other hand, the increase in different-sex partnerships in 2001 is more difficult to explain. Why should persons of different sex wish to enter into a registered partnership? Why opt for this institution when it can more or less be considered akin to marriage? Apart from the fact that a sociological study is urgently needed, there are three possible explanations: Firstly, by now the registered partnership has become more known to those couples who think that marriage is the only possibility by which to formalise their relationship. In addition, the joint custody of children born within a registered partnership, which was introduced on 1st January 2002, is probably a welcome prospect. Secondly, the cause may also be found in a degree of reticence towards the symbolic meaning of marriage and probably towards the effects of marriage as regards filiations. Thirdly, and in the view of the pertinent authors this reasoning is the most likely, the increase can be explained by the phenomenon of the so-called ‘lightning-divorces’ (flitsscheidingen). It was never the intention of the Government, however, to create a simplified divorce but since the entry into force of the Act Opening Marriage to Same-Sex Couples an uncomplicated procedure at the office of the civil status registrar to transform a marriage into a registered partnership and vice versa has been introduced.
With the above figures in mind another important issue should be addressed, namely the relationship between registered a partnership and marriage. Should the registered partnership be preserved after 1st April 2001? The decision to make registered partnerships available for heterosexual couples is based on the presumed need of heterosexual couples to opt for a regulation which contains a lesser degree of symbolism when compared to marriage. Apparently, this presumption seems to be correct. Since 2001, 81% of all registered partnerships are now concluded between heterosexual couples. However, it should be kept in mind that most of the couples in these registered partnerships were probably previously married and that the registration of their partnership is only a transformation of their marriage – a ‘half-way step’ so to speak – in order to obtain a simplified divorce by subsequently dissolving the registered partnership. Apart from this consequence, the most important goal of the Act on Registered Partnership in 1998 was to create an institution for same-sex couples, which is similar to marriage. The equality for same-sex partners has already been achieved by the Registered Partnership Act but in this respect the Act on Opening Marriage to Same-Sex Couples has overruled the Registered Partnership Act. To put it more clearly, the decision to make the registered partnership available for heterosexual couples should have led to a reconsideration of the status of the institution of registered partnership as such at the moment the marriage was opened for same-sex couples. Conversely, the Government decided to postpone any definite decision on the future of the institution of registered partnership until 2006 when the Act Opening Marriage to Same-Sex Couples will be evaluated.
For more than 30 years, the sole ground for divorce has been the irretrievable breakdown of the marriage (Art. 1:151). This applies both to unilateral and common application for divorce. Astonishingly, divorce by consent does not exist as an autonomous ground for divorce under Dutch law. Article 1:154 explicitly requires that a divorce shall only be granted upon the common request of the spouses if the request is based on their mutual agreement that the marriage has irretrievably broken down. Since 1998, the number of divorces has been steadily increasing. In 2001, 39% of all marriages were dissolved by divorce.
2.3 Transformation of a marriage into a registered partnership and vice versa
In principle, in the Netherlands a divorce can only be obtained by menas of judicial proceedings. Since 1st April 2001, however, a possibility exists to obtain a divorce without the intervention of the courts and theoretically even within 24 hours. The Act Opening Marriage to Same-Sex Couples provides the possibility to easily transform a registered partnership into a marriage and vice versa. Apart from divorce, a marriage is also regarded as having been dissolved when it is transformed into a registered partnership (Art. 1:149 and Art. 1:77a). Upon the request of both spouses, the civil status registrar draws up an act of transformation. Subsequently, the registered partners can dissolve their registered partnership by mutual consent. Their declaration must reach the civil status registrar within at least three months after the conclusion of the agreement in order to be registered by him (Art. 1:80d/3). However, if one so wishes, it is possible to register the agreement on the same day when the transformation of the marriage into a registered partnership has taken place. Recently, this expedition form of ‘divorce’ has led to new discussions. It has been argued that this possibility, which has been underestimated by the Government, will encourage divorce because spouses may use this possibility impulsivley and as a knee-jerk reaction. In many cases, they would not seriously consider the consequences. This would especially harm the interests of their children if they have any. On the other hand, spouses may make use of ‘lightning-divorces’ for another reason. In principle, the law requires the permission of the court if the spouses want to change their matrimonial property regime during their marriage (Art. 1:119). This permission will only be granted if after an investigation by the court the creditors of the spouses will not be placed in a disadvantageous position with regard to their claims. If the spouses use the possibility of a ‘lightning-divorce’ and if they subsequently remarry and enter into a prenuptial agreement which contains a more profitable matrimonial regime for both of them, the aim of the judicial permission, that is to protect creditors, is thereby circumvented. No figures are available as yet, but the head of Civil Registration in Amsterdam has confirmed that several spouses made use of this possibility immediately after the entry into force of the Act Opening Marriage for Same-Sex Partners for this reason.
It is clear that the above-mentioned procedure represents the first step in the direction of a divorce without judicial proceedings, to a greater or lesser degree as the Commission for the Revision of Divorce Proceedings advised in 1996. In reaction to the latest increase in the divorce rate and especially the presumed increase of ‘lighting-divorces’ in the Netherlands, the State Secretary of Justice acknowledged that the number of dissolutions of registered partnerships after the transformation of a marriage into a registered partnerships has indeed increased. He reaffirmed his previously expressed opinion by stating that in his view the possibility of transforming a marriage into a registered partnership does not encourage divorce. Besides, it was stated that in the agreement on the dissolution of a registered partnership arrangements should be made to certain the effects of the dissolution, such as arrangements concerning maintenance, division of common property etc. In this respect, the State Secretary noticed that the arrangements to be made are mostly the same as those to be provided in the divorce agreement. He also affirmed that at present the Central Bureau of Statistics is considering whether it is possible to keep up to date the number of transformations of marriages into registered partnerships followed by the dissolution of the registered partnership by the common consent of the parties throughout the country.
3 Matrimonial property law
The Netherlands remains the last country in the world where the universal community of property has remained until the 21st century as the legal regime regulating matrimonial property. According to its apologists, it is a Dutch national monument. Its adversaries, however, would like to see it become a gravestone as soon as possible.
The universal community of property is regulated in the Civil Code (Title 7 of Book 1). However, it is still called ‘law on matrimonial property’, and is extrapolated to registered partnerships. According to Art. 1:94 the totality of assets and debts acquired before and during the marriage fall within the community. Donated and inherited assets follow the same course, unless the donor or testator explicitly excludes this. Only a special category of assets closely attached to the person of one of the spouses is not included within the community. Each of the spouses has a right to manage the assets, which he/she has brought into the community scheme. Some transactions like the disposition of the family home or donations, exceeding the value of ordinary gifts; require the consent of the other spouse (Art. 1:88). The creditors can levy execution on the whole of the common property both for the personal and the common debts of the spouses. If the marriage is terminated by death or divorce the community property is divided equally.
The spouses can enter into a prenuptial agreement at the time of concluding the marriage and during the marriage itself, but in the latter case, the approval of the courts is required. They can thereby choose between one of three models described in the code, or regulate their property relations, with some limitations, as they wish. The prenuptial agreement has to take the form of a notarial deed and to be entered in a matrimonial property register.
3.2 Matrimonial property law under review
The above oversimplified picture of Dutch matrimonial property law does not of course reflect the complex dilemmas of the current Dutch matrimonial property law. It is no exaggeration to say that the whole system is now in a transitional state. The impulse for revision was provided in 1995 during a parliamentary debate concerning the Bill on the registered partnership. Subsequently the Government decided that the revision should proceed in three steps.
The first step has already been completed. The Bill of 31 May 2001 on the rights and the duties of the spouses and registered partners brought about some long-awaited amendments primarily related to restrictions regarding the making or altering of postnuptial agreements during the marriage. The waiting period (one year after the conclusion of the marriage) for making or altering of such a contract during the marriage has now been dispensed with. Despite some proposals for change, the need for postnuptial agreements to be judicially approved has been preserved. However, the spouses or registered partners have been released from the duty of stating that they have reasonable grounds for entering into or altering such an agreement. They also no longer need to be legally represented in such a procedure, which makes it financially less prohibitive. Unfortunately, the proposal to abolish the joint and several liabilities of the spouses and registered partners, which was initially an integral part of the bill, was withdrawn.
The second step concerns the modification of one of the models for the contractual regime of matrimonial property law: the community with a compensation mechanism. The draft Bill on this issue was presented to Parliament in 2000 was then accepted by the Lower House (Second Chamber) and is now being considered by the Upper House (First Chamber).
The third step is far more radical and concerns the revision of the legal regime of joint property. A specially established Commission has presented a report containing a proposal to replace the current universal community of property with two alternative regimes: universal community and a kind of limited community with a final settlement system. The essence of the proposal is that the spouses would have to choose between one of these two regimes at the time of entering into the marriage. This proposal in fact led to the deterioration of the whole idea of the legal regime, which is meant to be applicable ‘by default’, when there is an absence of any choice. It has been correctly criticised for its impracticability as the spouses would need much more information than a civil registration or a leaflet could provide. This would boil down to the impractical situation where every marrying couple would have to visit a public notary before entering into the marriage.
In the process of preparing the new law, a prominent role has been given to comparative law. The Ministry of Justice has commissioned a scientific comparative report on matrimonial property law in various European countries in order to learn from foreign experience and to look abroad for the best and most suitable models. Remarkably, upon therequest of the Ministry of Justice traditionally observed sources like statutes, case law and academic writing are not the only sources referred to in this report. Special attention has also been given to interviews with judges, lawyers and notaries in order to examine the strong and weak points of the different legal rules on the level of the law in action. The authors concluded that hardly any ‘common core’ exists between the various existing regimes. Furthermore, they considered that every particular regime has its advantages and disadvantages, and therefore none of them could be considered as a perfect model for the Netherlands. However, after the conclusion of the report one of the authors proposed the deferred community of property as a model for the new Dutch law.
In view of this report, the Ministry of Justice has prepared a Memorandum on Matrimonial Property Law in which the government vision of how the new legal regime should look like has been made public. A choice has been made for a community of acquisitions. According to this regime only the assets acquired during the marriage fall within the community of property. If the community is terminated by divorce, the premarital assets and the assets gained by donation or inheritance remain outside the community. If the community is terminated by the death of one of the spouses, the premarital assets, together with donations and assets received by inheritance, are to be treated as common property.
After a thorough discussion of the Memorandum, the Government has now prepared a draft law, which is expected to be presented to Parliament. Surprisingly enough, the draft contains some rather unexpected deviations from the Memorandum. The proposed regime is still that of a limited community, but, alas, is no longer a community of acquisitions, as the premarital assets are now supposed to fall within the community of property. Gifts and inherited chattels remain, as was recommended in the Memorandum, the personal property of the spouses. Concerning premarital assets, the draft contains a possibility to exclude such assets from the community by means of simply listing the assets in question, without having to enter into a prenuptial agreement.
A rather unusual proposition in the Memorandum: a rule providing for the conversion of limited community into universal community, if the community ends by the death of one of the spouses, has been removed. The rules regarding the management of community property have also been changed in the bill. It is proposed that the spouses should manage chattels requiring special registration jointly, whereas the remainder of the assets could be managed by each of the spouses independently of one another. Another important amendment concerns the possibility to levy execution on community property in the case of the personal debts of one of the spouses. Two models for the prenuptial agreement, which exist under the current law: community of benefits and income, and community of gain and loss, have been removed in anticipation of the introduction of a general regulation concerning the contractual communities with a final settlement system.
The reserved stance taken by the Government, which finally did not dare to introduce a community of assets, and in the end chose a garbled pathetic hybrid thereof, is very regretful. As the Bill is to be subjected to discussion by a group of experts before presenting it to Parliament, and many possibilities remain for improving it, there is still some hope that the Bill will be amended on this point. Then the introduction of the new law, which, however, could take a couple of years, would bring the level of modernity of matrimonial property law more into line with the modern standards of the remainder of Dutch family law.
4 Parents and Children
4.1 The law of parentage
The law of parentage forms part of Book 1 of the Dutch Civil Code (title 11). The current regulation is based on the Act to Amend the Law of Parentage and Adoption, which came into force on 1 April 1998.
The anonymity of a donor is still guaranteed under Dutch law, but there is a Bill on the Storage and Disclosure of Information Relating to Gamete Donors, which is intended to change the situation in this matter. Although the previously discussed case law was explicitly declared not to be applicable to donors, the Bill appears to be heavily influenced by the same approach. According to the Bill, even if a sperm or embryo donor did not give consent to the possibility of the future revelation of his/her identity, such a revelation should be possible after the child has reached the age of sixteen, upon weighing the interests of the donor and the child. While hearing the Bill, the Government stated that ‘[…] the fact that the interests of the child carry more weight is presupposed. One should keep in mind that the child had no bearing in the way in which it was conceived, whereas the donor and the parents have deliberately chosen this way of procreation’.
4.2 Joint custody
In the last few years, the law on child custody has been changed many times. In 1998 joint custody after divorce was transformed from a mere option into the main rule: since then it has become automatic, ‘unless the parent or one of the parents have requested the District Court to determine that, in the best interests of the child, custody should be awarded to only one of them’ (Art. 1:251/2).
Since 1 January 2002 a registered partnership is considered to be equivalent to a marriage as regards custody. The rules concerning the continuation of joint custody after divorce have also become applicable to the termination of a registered partnership. Since marriage has been made available to same-sex partners, the spouses and registered partners automatically acquire joint custody if the child is born ‘within’ a partnership and both partners are its legal parents (Art. 1:253aa). The same applies if a child is born ‘within’ a marriage or partnership and one of the partners or spouses is its legal (and custodial) parent whereas the other is not, provided that the child does not have any legal filiation links with another (non-custodial) parent (Art. 1:253sa). If a child is born within a heterosexual marriage, the spouses are automatically considered to be its legal parents, and the new rule is therefore primarily aimed at homosexual spouses and homo- and heterosexual registered partners, because they do not automatically acquire legal parentage. Only lesbian spouses and partners, so-called ‘bio-mothers’, can benefit from the new law because no child can be born ‘within’ a relationship between two men. If a child has legal filiation links with another (non-custodial) parent the joint custody of the partner or spouse of its parent can be acquired by means of court proceedings (Art. 1:253t).
4.2.2 Joint Custody by an unmarried father
If the parents of a child are neither married nor in a registered partnership, and the father has legally recognised the child, he can ‑ since 1995 ‑ acquire joint custody by means of registration in the Guardianship Register upon a joint application by the mother and himself (Art. 1:252). The mother of the child can therefore obstruct the father’s acquisition of custody. In addition, when the mother already shares custody with another person, this fact renders the registration of custody for the natural father impossible (Art. 1:252/2, e).
4.2.3 Joint Custody by a parent and a non-parent
A non-parent, who, together with the custodial parent, raises and educates the child, can acquire joint custody by means of court proceedings (Art. 1:253t). If the child does not have legal filiation links with the other (non-custodial) parent, the requirements are quite simple. The non-parent-educator should have a ‘close personal relationship with the child’, and the custodial parent should exercise sole custody and should join the application (Art. 1:253t/1). Custody may be refused in the best interests of the child, or when there is a justified fear that joint custody may neglect the child’s interests (Art. 1:253t/3). Because of the fact that after recognition no consideration of the child’s interests is required in order to secure custody and further because in this case no interests of the other (non-custodial) parent are at stake, it has been suggested that court proceedings should be replaced by simple registration in the Guardianship Register.
If the child has legal filiation links with another (non-custodial parent), joint custody by the non-parent is only possible if, in addition to the requirements of Art. 1:253 t/1, the requirements of Art. 1:253 t/2 have been met. This means that the non-parent and the custodial parent of the child should have raised the child together for a period of one year before the application, and the custodial parent should have had three years’ uninterrupted sole custody before the application. This more complicated procedure is aimed at protecting the interests of non-custodial parents. The merits of a non-custodial parent are also mentioned among the considerations that could lead to custody being denied.
4.2.4 The contents of joint custody
Hitherto, the question of how Dutch family law is viewed from an integrated European perspective has never been asked. However, in the future the convergence sensitivity of selected parts of the family laws of all European countries will be investigated. Dutch family lawyers too have to realise that at the beginning of the 21st century, the harmonisation of family law in Europe has become a relevant issue. Notwithstanding the fact that areas such as private law in general, and family law in particular, have long been thought of as falling exclusively within the internal affairs of the member states of the European Union, they have nevertheless acquired, under the influence of the far-reaching economic integration and the free movement of persons, a strong European dimension. The absence of harmonised family law creates an obstacle to the free movement of persons and the creation of a truly European identity and an integrated European legal space. The large-scale differences between the national legal systems within a Europe without frontiers constitute a serious impediment to attaining a common European identity in the form of a European citizenship. The harmonisation of family law will provide an adequate legal basis for the further realisation of free movement for Europeans and will contribute to the factual achievement of a Europe not only without trade and economic borders but also without legal ones. Therefore, the harmonisation of family law can be seen as an ultimate step on the road towards creating a truly people-friendly, integrated Europe as a common home for all Europeans.
* Senior Research Fellow at the Molengraaff Institute for Private Law, University of Utrecht; Member of the Expert Group of the Commission on European Family Law. Her part of this report has been made possible by a fellowship from the Royal Netherlands Academy of Arts and Sciences.
** Professor of Private International Law and Comparative Law, Molengraaff Institute for Private Law, University of Utrecht; Member of the Organising Committee of the Commission on European Family Law.
2. Consequently, same-sex married couples will have to take into account that their marriage concluded in the Netherlands will in principle not be recognized in other countries. See on this question the extensive report of the Dutch Standing Governmental Commission on Private International Law, which was published on 7 January 2002, see www.justitie.nl/c_actual/rapport/cie/commissi.htm.
5. See extensively on the preparation of the Act and the political discussions, Forder, C., ‘To marry or not to marry: That is the question’, Bainham, A., (ed), The International Survey of Family Law (2001), p. 301-320.
8. See Maxwell, N.G., ‘Opening Civil Marriages to Same-Gender Couples: A Netherlands - United States Comparison’, Electronic Journal of Comparative Law, http://www.ejcl.org/43/art43-1.html.
9. Is a civil status registrar allowed to refuse to register a marriage between two persons of the same sex on the grounds of personal conscience? See on this question Schrama, W., ‘Reforms in Dutch Family Law During the Course of 2001: Increased Pluriformity and Complexity’, Bainham, A., (ed), The International Survey of Family Law (2002), to be published.
10. In total 82,819 marriages. See Centraal Bureau voor de Statistiek, http://statline.cbs.nl.
12. Exceptions are possible, and it is up to the Minister of Justice to decide. Minors between 16 and 18 years of age can only marry with their parents’ or guardian’s permission (Art 1:35). If permission is refused, the minor may apply to the sub-district court for permission (Art. 1:36).
19. Anyone who contributes to a pension scheme builds up entitlements to a retirement or surviving dependants’ pension. The entitlements, which have built up, to a retirement pension during the marriage have to be divided between the partners in the event of a divorce. Married couples can make their own arrangements. The surviving dependants’ pension accrues to the surviving partner on the death of his/her spouse.
20. In certain cases, such as the sale of the matrimonial home or the conclusion of a hire purchase agreement, married couples must have each other’s permission before they can enter into obligations or take decisions.
26. See Boele-Woelki, K./Schrama, W., ‘Die Rechtsstellung von Menschen mit homosexueller Veranlagung im niederländischen Recht’, Basedow, J./Hopt, K.J./Kötz, H./Dopffel, P., Die Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften (2000), p. 51-112.
44. Art. 1:80b. There is no special regulation for the property relations of those who are neither married nor have entered into a registered partnership. See on this issue: Schrama, op.cit. (note 4).
51. Those three models are: community of benefits and income (gemeenschap van vruchten en inkomsten), community of gain and loss (gemeenschap van winst and verlies), and separation with a final compensation mechanism (wettelijk deelgenootschap). All three are hardly ever used in practice.
52. The provisions of prenuptial agreements may not infringe good morals, public order and the mandatory rules of law. As to the last mentioned, there are very few mandatory provisions limiting the contractual freedom of the spouses (Art. 1:121). For more on this issue see C. Asser’s handeling tot beoefening van het Nederlands Burgerlijk recht. Personen- en familierecht (1998), p. 298-301.
56. Second Chamber 2000/2001, 27 084, nos. 1-3. For more details see: Verstappen, L., ‘Uitgangspunten voor een nieuw Nederlands wettelijk stelsel inzake het huwelijksvermogensrecht en de wijze van totstandkoming’, in: Boele-Woelki, K., (ed.) Algehele Gemeenschap van goederen: afschaffen!? (2001), p. 23-24.
58. See for instance Rieter, A., ‘Voorstellen met betrekking tot het basisstelsel, het goedkeuringsvereiste, de informatieplicht tussen echtgenoten en de openbare toegankelijkheid van het huwelijksgoederen-register’, in: Boele-Woelki, K., (ed.), op.cit. (note 56), p. 84.
61. Verrekenbeding. The scope of this report makes it impossible to describe this extremely technical egulation in more detail. See Burght, C., van der, ‘Wetsvoorstel Nieuwe Huwelijksvermogensrecht beter laat dan nooit, maar toch te vroeg’, WPNR 6437 p. 251-260 (Part 1), WPNR 6438, p. 277-280 (Part II).
66. For the criticism thereof see ibid, and Reinhartz, B., ‘Toekomst voor de wettelijke gemeenschap van goederen?’, WPNR 6459, p. 825 and Memorandum of the Ministry of Justice on Matrimonial property law (Notitie Huwelijksvermogensrecht); in: Boele-Woelki, K. (ed.), op.cit. (note 56), p. 10.
67. The report was compiled under the supervision of the reporter Boele-Woelki and has resulted in the following book: Boele-Woelki, K. (ed.), Braat, B./Oderkerk, M./Steenhoff, G., Huwelijksvermogens-recht in rechtsvergelijkend perspectief (Denemarken, Duitsland, Engeland, Frankrijk, Italië, Zweden), (2000).
70. See Steenhoff, G., ‘Het onderzoek inzake huwelijksvermogensrecht in een zestal Europese landen: een toelichting en een extra-aanbeveling aan de wetgever in verband met een Europees keuzestelsel’, in: Boele-Woelki, K. (ed.), op.cit. (note 56), p. 4-5.
72. The results of the discussions during a workshop in Utrecht were published in the collection by Boele-Woelki, K. (ed.), op.cit. (note 56). For arguments against universal community see Verbeke, op.cit. (note 59), p. 1900; and Verbeke, A., ‘Weg met de algehele gemeenschap!’, WPNR 6466, p. 984-987. For an arguments for maintaining universal community see Reinhartz, B., ‘Toekomst voor de wettelijke gemeenschap van goederen?’, WPNR 6457, p. 823-827; Luijten, op cit. (note 43), p. 95-101. Within the framework of the discussions, among other things a special report on the effect of the new law on the emancipation of women (Emancipatie-effectrapportage) has been commissioned. For an account thereof see: Holtmaat, R., Hondt, I., de, ‘Emancipatie-effectrapportage inzake basisstelsel huwelijksvermogensrecht’, NJB (2001), p. 1994-2000.
74. The current law is correctly criticised as being women-unfriendly in the Emancipatie-effectrapportage (supra note 72). The main point of criticism is the unfavourable stance towards women running the household, as in this case all the assets are brought into the community by the husband, and are therefore solely managed by him. See Holtmaat/de Hondt, op.cit. (note 72), p. 1999-2000.
82. Egg donation and embryo-transfer are possible under Dutch law. Annually some 10,000 in-vitro fertilisations take place (Koens, M., Vlaardingerbroek, P., Het hedendaagse personen- en familierecht, (1998), p. 199). Medically assisted procreation techniques are applied upon medical advice. (Broekhuijsen-Molenaar, A., ‘Civielrechtelijke aspecten van kunstmatige inseminatie, Tijdschrift voor Gezondheidsrecht 1985, p. 131-135. A single or lesbian woman is also eligible for treatment (including artificial insemination). The refusal of some clinics to provide treatment to lesbian women (9 of 13 clinics) was considered by the Commission on Equal Treatment to infringe the Equal Opportunities Act (Wet Gelijke Behandeling). The refusal to treat single women was not denounced by the same Commission because of conflicting research concerning the influence of being raised in a one-parent family. (Judgment of the Commission CSZ/ZT2076894, 28 June 2000). The Minister of Health responded to the aforementioned Judgement of the Commission in her letter to the Lower House (Second Chamber) of the Dutch Parliament. Therein she stated that she and the Minister of Justice agree with the Judgement of the Commission that the IVF techniques should be applied upon medical advice, ‘but for a KI-treatment the absence of a male partner is already a sufficient indication’. In respect of the refusal to treat single women, the opinion of the ministers differs from that of the Commission. The ministers maintained that lesbian and single women should not be placed in a more disadvantageous position than women with a male partner should on the sole ground of being lesbian or single. The ministers find support for this standpoint in the results of research that indicate that pedagogical quality and the socio-economic situation have more impact of the development of children than the lifestyle of their parent. However, in estimating a request for treatment the well-being of the child should be taken into consideration.
85. As Wortmann (op.cit. (note 81), p. 233) has put it: ‘While, for maternity, the biological mother is also the legal one, in the case of paternity, quite the reverse is true, the legal father is presupposed to be also the biological one?’
88. The absence of such a possibility under the old law was considered by the ECHR in the well-known Kroon case as being incompatible with Arts. 8 and 14 ECHR. Kroon and Others v. The Netherlands, 27 October 1994, Series A, no. 297-C § 38.
89. This absolute veto had already been moderated by case law even before the new law came into force when the child and a father enjoyed a ‘family life’. See thereon Forder, C., Legal Establishment of the Parent-Child Relationship: Constitutional Principles (1995), p. 206- 233.
95. Wortmann (‘Kroniek van het personen- en familierecht’, NJB 2001, p.1543) explains this by the fact that a female spouse or partner of the mother of the child is deprived of the possibility to recognise that child. The whole situation leads her to the suggestion that the boundaries between adoption and the establishment of paternity are fading, and that a kind of mixed institution should be created for such cases. This institution, according to her, resembles the establishment of parentage, because the lesbian partner would automatically become a legal parent of the child. At the same time it bears the features of an adoption, because this parentage is based on a fiction. See Wortmann, S., ‘Als een eigen kind’, Inauguration Speech (1998), p. 10.
101. The Bill is currently being discussed in the First Chamber: First Chamber, 2000-2001, 23 207, no. 3a On the history of this Bill see Broekhuijsen-Molenaar, A., ‘Het wetsvoorstel donorgegevens kunstmatige inseminatie’, FJR 1992, p. 205-206.
106. Act of 4 October 2001, On Amending Book 1 of the Civil Code on Account of Automatic Joint Custody in Case of Birth During Registered Partnership, Staatsblad 468. This Act entered into force on 1 January 2002.
109. Also falling within this provision are male homosexual spouses or registered partners, if the mother of the child is unknown or has died, because one of them is always not a legal father of the child.
111. Under this regulation also fall those cases of spouses or registered partners, one of whom is the custodial parent of the child and another is not its legal parent, if the child has a legal relationship with its other (non-custodial) parent.
117. Wortmann (op.cit. (note 95), p. 20) speaks, in this respect, of a ‘weak adoption’, which would not end the legal ties with the original family. At the same time, she stresses that the difference between non-parental custody and weak adoption is that the adoption creates a legal parental bond, as the adoptive parent and his/her family is considered as not being equivalent to blood relatives of the child, while custody does not have this effect. Van Teeffelen, op.cit. (note 115) welcomes the de facto equivalence of custody and adoption.
118. Doek has correctly summarised the policy choices inherent in the institution of custody as a ‘judicial recognition of the actual educational situation’ of the child and he connects these choices to the right of respect for family life derived from art 8 ECHR. See Doek, op.cit. (note 110), p. 224.
119. On 1st September 2001 the Commission on European Family Law was established. See for more information http://www.law.uu.nl/priv/cefl.
Cite as: Masha Antokolskaia and Katharina Boele-Woelki, Dutch Family Law in the 21st Century: Trend-Setting and Straggling behind at the Same Time, vol 6.4 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2002), <http://www.ejcl.org/64/art64-5.html>