Separating together

Your relationship is on the rocks.

Everyone hopes it doesn't happen to him or her, but the figures show otherwise.

In the Netherlands, one in three marriages ends in divorce. There are no figures on the number of cohabitants who break up, but it will be about the same.

So it can just happen to you that you will get divorced.

Where to start?

Once the decision has been made to divorce, many questions arise.

Who will stay in the house? How will the care of the children be divided? How do we divide the contents and bank accounts? Who will contribute what amount towards their own living expenses and those of the children?

Important and difficult decisions that must be made during an often emotional period.

Many people are unwilling or unable to make these decisions on their own and therefore enlist the help of a third party.

Who can help you?

If the relationship has become so clouded that consultation is no longer possible, each of the parties will usually hire their own lawyer. Often it then becomes a lengthy (and also expensive) process.

More and more people are realizing that, however difficult, it is useful to stay on speaking terms. After all, if there are children, you will be parents together for life, and perhaps even grandparents together in due course.

In this new relationship it is important to be able to continue to consult with each other.

In this case it is advisable to hire one person to guide the process. This is called a mediator. Traditionally this was a lawyer, but nowadays a notary is increasingly chosen.

It is important that the person you choose is specialized in divorces and separations.

Why choose a notary as mediator?

A notary is impartial and by virtue of his profession already accustomed to representing the interests of both parties. This comes in handy during mediation.

A notary is pre-eminently an expert in the field of family law.

Conditions of marriage and cohabitation contracts are a matter of course for him or her. A notary specialized in divorce also has knowledge of child custody, pensions, alimony, life insurance and, last but not least, the fiscal consequences of your agreements. The notary also knows how to deal with the emotions of the parties.

The notary can immediately record the final outcome of the parties' negotiations, the (divorce) covenant, in a notarial deed.

The notary can also arrange other legal matters such as the possible modification of prenuptial agreements, the creation and modification of wills and the preparation of the deed of partition regarding the house.

Because the notary has the necessary expertise, he can ensure that the parties do not reach a solution that in retrospect turns out to be legally unfeasible.

Furthermore, the notary has a duty of confidentiality and is subject to notarial disciplinary law.

Parenting plan

Since March 1, 2009, there is a legal obligation to draw up a parenting plan if there are minor children over whom custody is exercised. A parenting plan is a written agreement in which the agreements regarding the children are recorded. For example: the division of the care and upbringing tasks, an arrangement regarding the residence of the children, the contribution to the cost of living (child support), the way in which the parents inform each other about the children, the way in which parents maintain contact with each other about the children, etc.

This obligation applies to both married couples and cohabitants.

The notary-mediator is experienced in drawing up the parenting plan and, if you wish, can also exchange views with your children.

The process

The first meeting will include a discussion of the partners' relationship with each other, the family situation and the reason and background for the divorce. The following topics will then be discussed:

• matters that need to be settled in the short term;
• the contents of the prenuptial agreement or cohabitation contract;
• housing;
• parenting plan;
• living expenses for partners and children (alimony);
• division of joint assets;
• pension claims;
• life insurance and other policies;
• inheritance law.

Depending on the issues involved (e.g. own business or company), it may be necessary to seek the advice of external advisors such as an accountant, tax expert or pension expert.

The agreements made are recorded by the notary in a notarial deed: the (divorce) covenant.

And after that?

For cohabitants, no further formal steps need to be taken after the covenant is signed. Perhaps the house still needs to be put in the name of one of the ex-partners (this requires a notarial deed) and/or wills still need to be changed.

For married couples, a joint petition for divorce will need to be filed with the court. If there are minor children, this petition must be accompanied by the parenting plan.

The petition is filed with the court by a procedural lawyer hired through the notary. This is a "paper procedure"; you do not have to appear in court.

If the partners were not married at the time, but entered into a registered partnership, and there are no minor children, then the registered partnership can be terminated without court intervention. In this case, a statement co-signed by the notary can be submitted to the civil registry.

If there are minor children, registered partners should follow the same procedure as married couples.

Want to know more?

The notary-mediators at our office are W.H.A. (Helma) Leonhard-Strien (member of the MfN, the Mediatiorsfederation of the Netherlands and the VMN, the Association for Mediators in the Notary Profession) and

Mr. A.R. (Aniel) Autar (affiliated with VMN).

For further information, please contact them.