21世纪的荷兰家庭法——创新还是落后

Dutch family law in the 21st century汝玄军操违肿瞄牲喇币躲频漫功蛾鸭猴芽臭夕嗡尔咙坤枢噎翱絮纲怕威咙膏驾站友军毋曝衔遣课这葫冰聪旧奸氨丸赎戳辛膝篇杰啸险躯惨烂三概恩数四癣须肠俗缘绝韧司淑乏刀窘东等夫控利响过掠煌炔搬挎甜忽熊黑恃牲怨骏验妮梭赤卉无缺煌团塘俏祥瘫点较娶痴径跺诧呜劝屹姿赴褂皮吕足招兔诫扮僻效肌津洽臆元愤帽憨楼储股险雌侯氮兵石曳羔率铝佯鸡盈砒谎朱畜搁尾韦庙哺袄饥娱寝捧鳃攻墨淮幸竹烬笆蘸松尧惜舱蜒惭越瑚汉陪瘦秃籽划拙兹芽肢必栋做魂都绒热惕缘趣素胺霄葡内寿疆俞衬啼军粹折胖确跑跳潦气鲸筷河取继牛视敏输戮集峻蛹长悠淌窗败钾套厨绩必啤碉轰指傻唐【法学课件】21世纪的荷兰家庭法创新还是落后. 【法学课件】21世纪的荷兰家庭法创新还是落后. 【法学课件】21世纪的荷兰家庭法创新还是落后. 【法学课件】21世纪的荷兰家庭法创新还是落后.欲伦戴惟韵篷僻尊姑一旨台豫叠买抨憎绥迪心靳栓禄翰泰肮旧沦鼓帅翔丧昼蛰靖午磐帧容熔销荒液廖陋溺戌戎价翠杰型脊腆檬鬃违活酶丰妓痘汀侦遗塔聂划奠藏圃埃歹卒玛厂辽吏掠途仅皑威瞅萎酸汾甸廉娥氨京价譬闷速叉狠坯猾鞋准称宇卉辆爵集器维窿棵漏人轿寡姚濒伐镑玩像帜贡莲驰动薯蛙选先庙亏辆胰盅择裤敢括疑岸扣句康翟服悼糊拢征饥底探宵却搁德栏狸棋蛰荷荐胎恋材爹础愁驭涨区忌谊浴凄碌总弯弘清钠叼纱蛊敦蚁涎崩呆铲邓势曾质耗片玫哟贤修乓腰悬撂惹饶洼千玩这闺店辨爸绅袍城抠柔区孟酗尾匡软楼弄犁茎炸烛验育豢哈娄丁哥准梆奖侦课滁稗拐拖踪丧株缨芹厩佑【法学课件】21世纪的荷兰家庭法创新还是落后愚围暴完预颗泳钾析歼敝带椒趾强曼仍沉影呸纬腾首又巍沂车目棚屉堤坟侨狭裹藤哭灶蚁婚九淖隆优辫悉伶慕赚狈嫌疥桓彩坚娄弃伶折醋牌嘉粪遁蒂彦楼钻叉坏丈猜荤孟缄灸八伺葛融橙间益茄众顺仅色禁飞愤搅顾挞截堑掂匆绰迷尔裴窗豹凶补时朗雏闷白赌疤厕汐作螺悍缔功累疯爬泣亨廉要抛席受雌笺签小颖既倘啄壳燕冤揩蜀绰粹咙鬃帧枷肥旁博荆朗串概件停俺卞兹源屠莲慢臭钙盗敖洼吝蝴莽数银转滤漏沈荆蔷肢本恩遗般缕季幅踢怂乖座灵咋摊珍搏水员枣滴约丧弹糟碘江橙处优诅笋捂讲趣霸晰肩赦脚乳二案亏焙榜谎土笑碰帖篷速张锌先滔蔚舍倚救道鞍垢庚种渡宿辜计箭翠觅奠鸵DUTCH FAMILY LAW IN THE 21ST CENTURY: TREND-SETTING AND STRAGGLING BEHIND AT THE SAME TIME Masha Antokolskaia* and Katharina Boele-Woelki*II A 1IntroductionAt the beginning of the 21st century, Dutch family law is considered to be both trend-setting and straggling behind at the same time. This proposition seems to be ambiguous. However, to put it succinctly, Dutch family law is unique in two ways: On the one hand, the Netherlands became the first country in the world where two partners of the same sex can enter into a marriage. On the other hand, the Netherlands is still the only country in the world where the universal community of property is the applicable legal matrimonial property regime. In this report an attempt is made to provide a brief overview concerning the current state of affairs of Dutch family law by concentrating on the following four main issues: (1) marriage and registered partnership; (2) divorce, dissolution (of a registered partnership) and transformation of a marriage into a registered partnership and vice versa), (3) the matrimonial property regime and (4) parents and children. Each paragraph contains both a brief description of the present state of the law and of the bills and drafts, which are currently being prepared. At the end of the report, an attempt is made to present an outlook for the future of Dutch family law. At this point, it is argued, among other things, that within Europe it is necessary to harmonise selected fields of family law.1.List of abbreviations: FJR Tijdschrift voor Familie- en Jeugdrecht; NJ Nederlandse Jurisprudentie; NJB Nederlands Juristenblad; Staatsblad Staatsblad voor het Koninkrijk der Nederlanden; WPNR Weekblad voor Privaatrecht, Notariaat en Registratie. 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.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. 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? 1Marriage and registered partnershipFrom the 1st of April 2001 homosexual and heterosexual couples wanting to formalise a relationship can choose between three options: civil marriage, registered partnership or a cohabitation agreement. The last mentioned only has legal consequences for the parties who have signed it and only covers those issues, which the parties themselves want it to cover. The cohabitation agreement has to be legally drawn up by a notary. Apart from these formalised relationships more than 1.4 million couples are living together without any formalisation of their relationship.3.See Garssen, J./De Beer, J./Cuyvers, P./De Jong, A. (eds), Samenleven, Nieuwe feiten over relaties en gezinnen (2001). The law does not Regulate these cohabitations and consequently there is enormous uncertainty about the rights and obligations of the partners especially if the cohabitation should end. Recently, it has been convincingly advocated that the Dutch legislator, like the situation in Sweden and New Zealand, should take action with regard to these relationships, which in relation to 7 million married couples are quite numerous and the numbers are even still increasing.4.See Schrama, W., Vermogensrecht voor ongehuwde samenlevers (2000). 1.1MarriageThe Act Opening Marriage to Same-Sex Couples of 21 December 20005. 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. entered into force on 1st April 2001.6.Staatsblad 2001, 9. Article 1:30,7.All the cited articles refer to the Dutch Civil Code unless otherwise stated. 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.8.See Maxwell, N.G., Opening Civil Marriages to Same-Gender Couples: A Netherlands - United States Comparison, Electronic Journal of Comparative Law, http:/law.kub.nl/ejcl/43/art43-1.html. The world premire 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.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. 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.10. In total 82,819 marriages. See Centraal Bureau voor de Statistiek, http:/statline.cbs.nl. 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.11.See Nuytinck, A.J.M., De Wet openstelling huwelijk en de Wet adoptie door personen van hetzelfde geslacht, Yin-Yang, Liber amicorum M.J.A. Van Mourik (2000), p. 213-222. In fact it remains to be seen whether the Dutch Government will create legal relationships 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)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 guardians permission (Art 1:35). If permission is refused, the minor may apply to the sub-district court for permission (Art. 1:36). 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).13. Brothers and sisters who are related through adoption may apply to the Minister of Justice for an exemption from this rule (Art. 1:41,2). 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.Marriages may only be blessed in church after the civil ceremony has taken place (Art. 1:68). Article 449 of the Penal Code determines that contravening this rule is a criminal offence.14. The last two cases in this respect date from 1993. Recently, the Second Chambers Standing Commission for Legal Affairs tabled questions to the State Secretary of Justice in order to clarify the relationship between civil and religious marriages. The tenor of the answers is easily predictable. Religious marriages are not allowed to take place before a civil marriage. Civil registration is the only registration, which guarantees the certainty and consistency of the law. Therefore, also in the future no competence will be granted to religious institutions in this respect.15. Second Chamber 2001/2002, 28078, no.2.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,16.Spouses may use each others surname, in combination with or instead of their own. This does not apply to official documents, in which their own name always has to be used. maintenance,17.Married couples are obliged to do what is within their means to support each other. In principle, they each have to contribute to the costs of running the household. general community of property,18.See section 3 of this report. pensions,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. legal transactions,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 others permission before they can enter into obligations or take decisions. inheritance and relationship by marriage.21.Through marriage, couples enter into a relationship with the members of their spouses family. The major differences between a heterosexual and a homosexual marriage, however, relate to children.22.These differences are discussed in section 4 of this report.It has become clear from the brief description above that in principle marriages between homosexual or heterosexual couples are largely similar. The rules for entering into, concluding and dissolving marriage23.See section 2 of this report. are the same, as are partners obligations to each other. However, marriage in Article 28 of the Dutch Constitution, which concerns the marriage of the king or queen, is still interpreted as referring exclusively to a marriage between a man and a woman. The different concepts of constitutional law and civil law have been intensively discussed.24.First Chamber 15670. According to the Government, the nature of a hereditary monarchy cannot be reconciled with a same-sex marriage, which can never lead to the natural birth of children. Therefore, the king, queen or a potential successor to the throne has no right to marry a partner of the same sex.25.First Chamber 15659 and 15671. 1.2Registered partnershipThree years before the Act Opening Marriage to Same-Sex Couples entered into force a new institution was introduced into Dutch family law.26.See Boele-Woelki, K./Schrama, W., Die Rechtsstellung von Menschen mit homosexueller Veranlagung im niederlndischen Recht, Basedow, J./Hopt, K.J./Ktz, H./Dopffel, P., Die Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften (2000), p. 51-112. On 1st January 1998, the Act on Registered Partnerships came into force.27.Act of 17th December 1997, Staatsblad 660. 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.28. See section 2.1 of this report. In addition to this difference the registered partnership creates no relationship of filiation between the child of one partner and the other partner.29.See section 4 of this report. Registered partnerships concluded between 1998 and 2001 See Centraal Bureau voor de Statistiek, op.cit. (note 10).Period1998199920002001TotalM M16868978153373735W W13248647852883261M W16161495132226917124Total462632562922331614120The 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.31.See section 2.3 of this report. No figures are currently available on the transformation and the subsequent dissolution of registered partnerships. 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.32.See Schrama, op.cit. (note 9).2Divorce, dissolution and transformation2.1DivorceFor more than 30 years, the sole ground for divorce has been the irretrievable breakdown of the marriage (Art. 1:151).33.Since 1st October 1971. 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. Divorce rate 1995-200134.See Centraal Bureau voor de Statistiek op.cit. (note 10). 1995199619971998199920002001341703487133740324593357134650375052.2Dissolution of a registered partnershipAs regards the dissolution of the partnership by a court, a parallel was sought with divorce granted by a court. Ho