The Netherlands Supreme Court and International Matrimonial Property Law

Abstract

1. It was over a year ago that the Editors of this periodical asked me for a contribution giving some account of Dutch international law regarding matrimonial property. What prompted that request was the forthcoming 13th Session of The Hague Conference on Private International Law, which was to be held in October 1976. There reigned great uncertainty in Dutch international law regarding the answer which should be given to the famosissima quaestio as to what law the joint matrimonial property regime will be subject when prospective spouses do not possess the same nationality. In the reports submitted to the Royal Fraternity of Notaries in 1969, Dubbink had defended the position that the national law of the husband still prevailed, whereas the other pre-adviseur , namely myself, expressed a preference for the law of the place of domicile of the future spouses or, in the event of their not living in the same country, the law of the first matrimonial domicile. As the Hoge Raad was expected shortly to deliver judgment in a case in which the spouses differed in nationality, I had suggested waiting for that ruling. This judgment was not given until 10 December 1976. Meanwhile, however, the 13th Session of The Hague Conference had taken place, so that the occasion for the writing of the article was no more. The Editors nevertheless considered that their request could be maintained. I am happy now to furnish my contribution, because both the judgment of the Hoge Raad and the Convention adopted in 1976 by the Hague Conference on the Law Applicable to Matrimonial Property Regimes have evinced important new points of view, including more especially the premise of the future spouses' free choice of law. The Dutch international law of matrimonial property needs to be re-written, but that is far beyond the ambitions of the present article. After describing and analysing the caselaw of the Hoge Raad I will simply endeavour to give a succinct description of the present state of this law. In so doing I will also refer as appropriate to the recently adopted Hague Convention.