(IN)EQUALITY IN NETHERLANDS FAMILY LAW
The influence of human rights conventions on Netherlands family law
Before giving an impression of Netherlands Family law and the possible equalities and inequalities, it is good to note, that The Netherlands is just a very small (and flat) country (41,548 km²), but it is one of the most densely populated countries in the world (more than 15 million people). In 1994 we had 82,982 marriages and 36,182 divorces that were inscribed at the registrar's office, but this high figure of divorces is probably the result of an overtaking manoeuvre by the courts and registrar's offices. Usually the total number of divorces is about 28,000 per year. To give some more figures; in 1994 195,611 children were born alive; 27,899 were born outside marriage. The total number of people living together outside marriage was 1,120,000; from them 924,000 were living with (their) children; while 196,000 were living in a living arrangement without children. The Netherlands is not a homogeneous cultural whole. Diversity in terms of religious values and professional activity is its outstanding characteristic. This diversity can also be found in the broadcasting corporations and political groups. Although we live in a small country, we form a mixture of tolerance and conservatism. Very conservative (for instance orthodox religious groups) and very modern groups can be found in our country, usually living next to each other peacefully.
Thus, it is interesting to see how in such a divers country the family law has been codified and whether our family law (still) lays the foundations for inequality. Before we go to the general theme of this report, (un)equalities in family law in The Netherlands, we have to be aware of the fact that in many other countries, family law is in motion too. At a supra-national level, the activities of the Council of Europe and the United Nations are important for us. Especially, because Dutch law can be superceded by international law. The impact and influence of the International Conventions on our Netherlands law has been and still is very great. I will give examples of this later on.
The Council of Europe has a lot of activities concerning the family, usually because the Committee of Ministers or the conferences of specialised ministers ask for action. Usually, the purpose of the Resolutions agreed by the Committee of Ministers, is to enact these Resolautions in national law. The purpose of the Resolution (78)37 on equality of spouses in civil law, is not to impose in all fields a particular system but to encourage each State to select, where appropriate, from among the solutions proposed, all of them non-discriminatory, the one closest to national customs associated with historical, social, economic and religious factors. When we look at the proposals, we can see the following:
- civil law should contain no provisions whereby a spouse is put in a more advantageous position than the other spouse by being designated to act as the head of the family or by being given the sole right either to take decisions concerning the other spouse or to represent this spouse;
- both spouses should have equal rights as regards to freedom of movement, choice of occupation and choice of the common residence;
- equality in the choice of a family name;
- the removal of discrimination between spouses as regards marriage contracts and dotal property;
- equality of the spouses as regards contribution to household expenses;
- equality of rights and obligations as regards maintenance;
- equal responsibilities for their children, particularly in regard to their children's property, the choice of their surname and their legal representation.
With regard to most of these recommendations, interesting developments in Netherlands family law can be mentioned. In the Netherlands there is a not a specific family code, although a part of the Civil Code (Book 1) is reserved for family matters. Besides this part of the Civil Code family law (including child law) can be found in a lot of other codes.
In the following I will give an overview of the impact of the human rights conventions on
Netherlands family law. Because it is impossible to describe the jurisprudence for every subject, I
will stick to the most important subjects. Before dealing with the legal aspects of family life I will
first spend a few words on family live in The Netherlands.
2. Family life in the Netherlands
In the Netherlands 'family' and 'family life' are not limited to traditional concepts of the family. Apart from the traditional family of a man and a woman who are married and have children, the notion of a "family" is also used to describe other primary living units in which the care and upbringing of children takes place. Regardless the composition of the people together, as soon as there are children to be raised, it is called "a family" in the Netherlands.
In the opinion of the Netherlands government, family life is considered to be an absolutely private affair. It is not considered to be the job of the government to interfere with the way in which people shape their way of life or their family life, unless there is a very good reason like the interest of the children. For instance, if parent maltreat or abuse their child(ren) the government may interfere in their family life to protect the children. Nevertheless, the question arises if the opinion of our government makes it necessary to take away inequalities in our family code.
With regard to basic cultural values and beliefs, there is a general acceptance in the Netherlands of the freedom of choice for the sort of relationship. Cohabitators are generally seen as equivalent to married couples; some municipalities (registrar's offices) perform ceremonies for couples of the same sex as if a wedding has taken place (inscription in an official register). The Dutch Supreme Court decided on October 19, 1990(2) that there had been unjustified discrimination against homosexual couples when compared with heterosexual couples in the right to marry, but the Supreme Court did not think it was the task of the judiciary to change this situation. Now the Minister of Justice has taken the initiative to tackle this subject. People who cannot marry, like homosexuals and close relatives, will -according to a draft - in the near future be allowed to inscribe themselves at the registrar's office as a de facto marriage. This 'official status' of the relationship will not have effects for the position of children born in that relationship (for instance by AID or IVF and embryo-transfer). Recently a majority in our Parliament asked the government to prepare legislation according to which homosexuals can marry and adopt a child.
However, notwithstanding these trends mentioned above, the vast majority of the people prefer for themselves, the so-called 'traditional' arrangements. Interestingly the family ethos is extremely strong concerning two core values: monogamy and (intention to) stay-together for a lifetime. In sum: the general adherence to family values is seen as a personal choice and therefore, in general, this choice is tolerated.
The consequence of structural changes in family life is that the sequences of a given
standardized family cycle (marriage - children - empty nest - death of one spouse - living alone) are
not followed in this order in a number of families. The number of families that transit through other
life forms has increased. Hence the number of new kinds of households and other primary-life
forms, wherein the child is no longer the main concern, has increased. In the near future, one-third
of all households will be of the nuclear-family type, one-third will be of the one-person variant and
the remaining one-third will be made up by other household forms. If social policy remains
unchanged, it is expected that in the beginning of the 21st century half of all households in the
Netherlands will be of the one-person type. These changes and forecasts are not different from
those found in other Western European countries.
3. Family life and the law
The rules on family law can be found in Book 1 of our civil code. This code was enacted in 1838 and is based on a mixture of roman, french and old national dutch law. This civil code was several times modernised, but since we have a growing influence of human rights on the Dutch legal system in the last few decades, our legislator is confronted with great problems to adjust our code to the jurisprudence, especially in the field of family law. Although Dutch law is based on statute, it is interesting to note that judge-made law is becoming ever more important. The influence of human rights on Dutch Law has been enormous, but especially Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) has had a great influence on dutch family law.(3) Today, one of the most hotly debated issues is whether the dutch Supreme Court, Hoge Raad, has simply been doing justice between the parties or is laying down new rules. The Hoge Raad has given extensive interpretations to some rather rigid laws by applying the ECHR and the ICCPR. The scope of the human rights conventions, that have been ratified by the Netherlands, has been and continues to be widened in such a way that the sky seems to be the limit. Important issues that have been dealt with by our Hoge Raad are: the equality between men and women, the legal status of children born within and outside marriage and the position of divorced persons. In the scope of this report the examples of inequality below are taken from the fields of affiliation, surname, custody, access and marriage.
The ECHR is frequently invoked in the Netherlands, as it is directly applicable law by virtue of the Constitution, and therefore takes precedence over national legislation. Hence the Convention is often used to challenge the validity of legislation. This is also necessary because the Convention must be invoked before the domestic courts to preserve the option of a subsequent application to the Commission and the Court of Human Rights.
The Convention is designed to secure the 'collective enforcement' of human rights and fundamental freedoms. 'Respect for family and private life' within the meaning of Article 8 ECHR means primarily that public authorities must refrain from arbitrary interference in the lives of individuals and families. This negative obligation on public authorities is set out in Article 8(2) ECHR. But 'respect' for family life may also include a positive obligation on the part of public authorities. In Marckx the Court decided (at para 31 of the judgment) that in so far as a positive obligation exists, it constitutes an incentive for the [Belgian] government to bring its legislative system into line with the Convention. The problem with this approach is that the whole Dutch code has to be changed to achieve conformity with the case law of our Supreme Court and of the Court of Human Rights in the field of family law, as Article 8 itself seems to contain a whole code of family law. In many cases, the Dutch judges must make their own decisions, because statute does not provide answers to novel problems such as surrogate motherhood, access rights of persons other than the divorced parent of the child and parental rights for unmarried parents, or because the legislation has become too obsolete. In Marckx the UK judge of the Court of Human Rights, Sir Gerald Fitzmaurice, dissented from the view that Article 8 is not intended to settle the legal position of infants. He spoke of "a misguided endeavour to read - or rather introduce - a whole code of family law into Article 8 of the convention."
Without doubt, Article 8 ECHR, often read in conjunction with Article 14 ECHR, has been the most important factor in the Netherlands generating changes in the field of jurisprudence and leading to efforts to modernize legislation in the field of family and child law. However, Articles 5, 6, 12 and 13 ECHR have, in addition, also been important. The same can be said of Article 26 of the UN Convention on Political and Civil Rights (ICCPR).
Article 8 ECHR is a rather vaguely formulated right. Its contours are unclear, but that makes it also possible to develop the interpretation of this Article. Although the European Commission and the European Court of Human Rights have both interpreted the concepts of 'family life' and 'private life' quite strictly, the Dutch courts, led by the Supreme Court (Hoge Raad), have broadened the scope of Article 8. This Article is now used in almost every case, where the claimant seeks a right to a remedy which is not currently available under Dutch law. In the following sections, we shall see several examples of the importance of case law in this respect.
'Family life' in Article 8 is an autonomous concept, which refers not only to family life de
jure, but also to family life de facto. Family life comprises all kinds of close relationships, such as
kinship and foster parenthood. A key requirement is a link which can be considered to establish
family life. This means that there must have been a close relationship, a kind of 'effective family
life'. The consequence of such a relationship is that for example the non-custodial parent will have
the right of access to his or her child. The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life. The notion that this natural family relationship is not terminated by reason of the fact that the child is educated elsewhere (e.g. because it is
taken into public care or lives with foster parents), has generated a whole code of judge-made law
in my opinion.
4. Inequality in marriage law
In the Netherlands only a civil marriage is legally valid (Art.1:30 BW). A church ceremony alone is insufficient. A wedding in the church may also not take place before the civil wedding for the Registrar. In the Netherlands the wedding usually consists of a ceremony in the town hall and in the church, although a church ceremony is becoming less common (because of the secularization in our country). The law lays down the requirements with which the parties must comply: A man and a woman may marry when they are 18 years old or older. An exception of this minimum-age is made for those who wish to marry, and who are at least 16 year and the woman can produce a medical statement that she is pregnant or has already given birth to a baby. A man may be married to only one woman at a time; this monogamy rule also applies for women.
Article 1:33 BW concerns the sex of the potential partners: "a man can at the same time be married only with a woman, a woman only with a man." Some homosexual groups have asked for a change of our civil code in order to make it possible for them to marry. They think that our marriage law is against Articles 12 and 14 ECHR, because a homosexual couple may not marry. Is this really an inequality between homosexual and heterosexual lovers? Relying upon Article 12 read in conjunction with 8 and 14 ECHR, two women requested the judge to oblige the county clerk to perform a marriage ceremony (Hoge Raad, 19 October 1990, NJ 1992, 129). The Hoge Raad decided that the basic assumption of the Dutch statutory system would be undermined if a marriage between two persons of the same sex were allowed. Pointing to the protected rights of Article 8 ECHR, the Hoge Raad underlined the possibility that any man or woman might marry. Furthermore, it held that Article 12 and also Article 23 ICCPR are intended to protect the traditional marriage between two persons of the opposite sexes. "One of the characteristics of a marriage is that the partners are physically capable of having sexual intercourse in such a way that it could bring about sexual reproduction." In its conclusions, the Hoge Raad pointed to the judgment of the European Court of Human Rights (17 October 1986, NJ 1987, 945) in which Article 12 ECHR is cited as being concerned only with the traditional marriage of two persons of different sexes. The judge declined these applications, which was justified in my opinion, because the Convention is based on the traditional matrimony joining a man and a woman. The judge does not have any say in this matter. However, the wish of two homosexual partners to be allowed to marry each other cannot be simply dismissed by an application to culture and tradition. As matrimony loses its distinctive quality compared to other modes of living, one should be brave enough to face up to the question why marriage has to remain forbidden territory for homosexuals. I do not mean to suggest here that Dutch society would be ripe for a marriage of homosexual partners (although in our Parliament a majority of the present members in our Parliament would favour this), but I think an arrangement as was introduced in Denmark would be preferable, where a number of provisions in the legislation on matrimony have been declared applicable to registered homosexual relations, such as the duty of maintenance, the law regarding matrimonial property and pension provisions. Joint responsibility for children should be another consequence to my opinion.
The Hoge Raad did perhaps open a door to possible new developments in future by suggesting that it could constitute an inadequate justification simply to link a specific legal consequence to marriage and not to two persons of the same sex, living together. Some local authorities have given the opportunity to gay and lesbian couples to register their cohabitation in a so-called 'marriage' record. Although this record does not give any legal status to their domestic arrangements (or attach any legal consequences), homosexual partners will sign up because of the statement which this makes to the outside world. At the present time the Dutch Parliament is debating the possibility of according equality to the different forms of domestic arrangements. A new Bill gives legal consequences to the registration of a living-together-contract that are similar to those of a marriage (but without the consequences of affiliation and adoption in case of a registered homosexual couple). So, a child can only have a legal status with one mother and one father and not with two mothers or two fathers, although in practice it occurs more frequently that a child is raised by a homosexual couple.
Another inequality that can be mentioned is the different legal position of the widow and
widower who wants to re-marry. According to our civil code it is not allowed for a widow to
remarry during the first 306 days after her husband's death, unless the widow has reached the age
of 52, or has given birth after her husband's death, or can produce a medical statement that she is
not pregnant(4), or can prove that she and her deceased husband were officially separated or didn't
live together during the last 306 days of the marriage (Art. 1:34). The widower however is not
bound at these rules: he can remarry after his wife's death. These rules are given to protect the
child, that will be born with 306 days after his father's death. If the woman can remarry immediately after her husband's death and she will give birth, the father of her child will be the new
5. Inequality in the law on affiliation
In the last 25 years in almost all continental Western European countries more or less substantial reforms of the affiliation laws have been carried out, in which reforms three common elements can be noted: equalisation (the elimination of discrimination between various categories of affiliation), liberalisation (numerous restrictions on the establishment and the contestation of affiliation have been suppressed) and modernisation (although this modernisation cannot compete with the new medico genetic techniques, such as IVF and AID).
The original Dutch law dates from 1838. In 1970 the affiliation code was reformed in the
framework of the law introducing Book 1 of the new Civil Code. After the decision of the
European Court in the Marckx-case the first draft for the revision of affiliation law was published in
1981. Small changes took place in the affiliation law because of the Marckx-case, but in 1988 the
government submitted a Bill for revision of the affiliation. In 1993 this Bill was repealed. A new
Bill has been sent to the Council of State for comments.
In all western industrialised countries the sixties marked a turning point, especially in matters of demography: a decline of the birthrate, less legal marriages and more de facto marriages, a growing number of separations and divorces, and therefore an increasing number of children born out of wedlock or living with only one parent or a parent and a step-parent. At that time, it was a straightforward task to describe the rules of affiliation. The Dutch affiliation law is based on the presumption that a husband is the father of his wife's children.
When a child is born within a marriage, the man who was married to its mother at the time of its conception or at the time of its birth, is presumed to be the father of the child. When the child is born within the marriage only the husband is entitled to take legal action (within 6 months from the time when he acquired knowledge of the birth) to contest his paternity. This action will not succeed if the husband has given his consent to an act liable to lead to conception (e.g. artificial insemination, approved adultery). In the Napoleonic Code, the restrictions on the scope of contesting the presumption of fatherhood were expressed in three ways: only the husband was allowed to contest his paternity; he could do so only within a very short time-limit and the law strictly and narrowly defined the circumstances in which he could deny paternity. The protection of family harmony and the importance of safeguarding the long-established status of the individual are still considered to be valid reasons for restricting paternity contests.(5) In the Netherlands these rules of contestation are still the basis of the law, although these obstacles against the possibility to contested paternity are more and more seen as an unjustified obstruction in the search for conformity between legal affiliation and the biological truth.
Children born more than 307 days after the marriage has been dissolved will only have a mother at the time of their birth. The paternity of a child born in the 306 days after the dissolution of the marriage can be contested by the mother, but only in as far as she declares to the civil registrar that she contests the paternity of her ex-spouse, and in as far as the mother marries the man who has recognized the child. The man who recognizes the child has to marry the mother of the child and they are to marry in the year following the birth. The retention of this presumption of the legal fatherhood (the Pater est rule: Pater est quem nuptiae demonstrant) is usually defended on the empirical following rule: when a married woman bears a child, an identified man exists of whom it can be presumed that he is the biological father of her child. As a matter of fact, the husband of the married mother is usually the biological father of the child, not so much because married women are in general faithful to their husband, but simply because adultery couples in general do not wish to beget a child, and the availability of contraception and abortion allows them to avoid adulterine birth.(6)
A child born out of wedlock only has a mother (Art. 1:221 BW(7)). However, paternity can be established outside marriage when the child is acknowledged by another man (not necessarily the biological father). A voluntary acknowledgement by the man is required. The mother has to give her consent. If the child is aged twelve years or more, the child itself must consent to the acknowledgement (Art. 1:221-225 BW). The child cannot be acknowledged in case this child born as a result of incest (the sexual intercourse resulting in the conception of the child occurred between the mother and her (grand)father or brother). The father can acknowledge his child, after the dissolution of his own marriage or if he married less than 306 days before the birth of the child. The mother of the child has to give her consent to voluntary acknowledgement.
Legimitation is possible when the child is acknowledged before or at the time of the marriage, or even after the marriage is dissolved in the event of the mother's death.
If a child has not been acknowledged (because his or her identity is not known, or the child does not wish to be acknowledged, or the mother does not consent to acknowledgement) there are special proceedings to determine paternity, but only for the purpose of ensuring support of the child by that man (Art. 1: 394 BW).
The above summarises briefly the Dutch statutory rules on affiliation.
Since the Marckx-case, the Dutch provisions on affiliation have been overruled on a number of occasions in the case law. I shall give some examples:
The Dutch legislator revised the provisions contained in the Civil Code on affiliation and inheritance law, because the legitimate child had a better legal position than the illegitimate child (Act of 27 October 1982, Stb. 608). The illegitimate child had no kinship with the relatives of his mother and - following acknowledgement - of his father. This legislation came into force with retrospective effect, backdated to 13 June 1979 (the date of the decision of the European Court in Marckx).
Recently the European Court decided the important Kroon-case(8), which will have an important impact for the Dutch judges and legislator. The applicants complained that under Netherlands law it was not possible for Mrs. Kroon to have entered in the register of births any statement that Mr. M'Hallem-Driss (with whom she was married) was not Samir's father, with the result that Mr Zerrouk (the begetter of the child Samir) was not able to recognise Samir as his child. The relied upon Article 8 of the European Convention. In the Court's opinion, 'respect for family life' requires that biological and social reality prevail over a legal presumption which, as in the present case, flies in the face of both established fact and the wishes of those concerned without actually benefitting anyone.
"In any case, the Court recalls that the notion of "family life" in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto "family ties" where parties are living together outside marriage (....(9), PV). Although, as a rule, living together may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto "family ties"; such is the case here, as since 1987 four children have been born to Mrs K. and Mr Z.. A child born of such a relationship is ipso jure part of that "family unit" from the moment of its birth and by the very fact of it (see the Keegan judgment, ibid.). There thus exists between S. and Mr Z. a bond amounting to family life, whatever the contribution of the latter to his son's care and upbringing. Article 8 is therefore applicable."(10)
The legal right of the mother to give consent to a man to acknowledge her child was considered to be a right of absolute veto. However, in a case law development, a change has been introduced in the event of the mother refusing without valid reason. In that case the man has to state that there has been "family life" between him and the child.(11) The so-called "absolute veto" of the mother of the illegitimate child has become a "suspensive veto". On a request from the man who wants to acknowledge her child and who can prove that he has enjoyed "family life" with the child, the judge may decide that the mother's consent can be superseded by a decision on the part of the court.
To conclude: in the Netherlands the legal status of the unmarried father has improved
dramatically, although this has lead to a weaker position of the unmarried mother. However, the
position of the married (or just divorced) mother has improved, while in the new bill she will have
the same position as her (former) husband with regard to the denial of the fatherhood of the child.
A new bill (TK 24 649), the third draft, was sent to Parliament in March 1996. This revision would
introduce many changes into the present Articles in the Civil Code with regard to affiliation/parentage. In this bill more weight has been given to the wishes of the natural father of the child
who wants to become its legal father. Unjust differences and discrimination in the field of affiliation
law between the father and the mother of the child will disappear. Thus in a case where paternity is
at issue, both the man and the woman will have the same legal rights. In the new statute the
legislator has also taken into account the problems that may arise with artificial insemination. The
terms legitimate, illegitimate, natural, legitimisation by marriage etc., will be removed and
displaced by the terms 'mother' and 'father'. Of course, the law will mention the way how
motherhood and fatherhood can be established (giving birth to a child, birth within marriage,
acknowledgment, adoption, etc.).
6. Equality, Parental authority, guardianship and custody
The Dutch legal system aims to put every minor (unmarried child under 18 years) under custody of an adult. The notion of custody is divided into parental authority and guardianship. Usually both parents exercise together the authority over their minor children (Article 1:246 BW). Before the 2nd November 1995 the parental authority ended in case of dissolution of the marriage: then the child was in principle in the custody of only one of the parents or of a third party (natural or legal person; Article 1:279 BW). Under the influence of Article 8 ECHR, however, the Hoge Raad in 1984 laid down an extension to this principle and opened up the possibility of maintaining the situation in which both parents have the parental authority also in situations where the marriage has ended in divorce. Two years later, the Hoge Raad gave a further interpretation of the concept of parental authority, determining that, even in cases of cohabitation, parents could obtain an order giving parental authority on condition that it is in the best interests of the child and there are family relations between both parents and the child (Hoge Raad 21 March 1986, NJ 1986, 585). The mother automatically has a legal connection with any child born to her; for the father, this connection arises where he acknowledges the child. In this case, the Hoge Raad justified its decision by reference to the protected rights which result from the concept of 'family life'. The Hoge Raad found that the Dutch legislation, which accepts parental authority only during marriage is out of line with prevailing views in society. Consequently, a change in the law governing custody was necessary.
The new Act on parental authority, that entered into force on 2 November 1995 (Stb. 240), provides in the continuation of parental authority after divorce (by a decision of the judge) and in cases where the parents are not married by means of a simple declaration to the clerk of the local court. Parental authority will be capable of being exercised by either both parents, or a single parent. Of course, the interests of the child remain the criterion by which the joint request of the parents must be reviewed (Hoge Raad 21 March 1986, NJ 1986, 585). The requirement of a family relationship remains, as a result of the advice given by the Council of Europe concerning parental responsibility, issued by the Committee of Ministers on 28 February 1984 (Recommendation No. R(84)4 concerning "parental responsibility", Strassbourg, 1984; Tweede Kamer 1992-3, 23 012, no. 3, p. 22). Guardianship in future will only be possible if a third party, not being a parent, is to be appointed.
In spite of the extension of the national legislation mentioned above, the argument has been taken further, as the nature of the family relationship between parents and child became the focal point of discussion. In a number of judgments, the Hoge Raad has explicitly recognized a broad concept of family life. In the first case, the request came from two women who considered themselves to be social parents of the child, as it was they who were providing everyday care (Hoge Raad, 24 February 1989, NJ 1989, 741). One of the carers was the mother of the child. In their opinion it was possible that, in spite of the absence of a family tie between the mother's partner and the child, there was in fact family life (as defined by Article 8 ECHR) between the adult and the child. The Hoge Raad was of the opinion that the requirement that there must be a family relationship between the adult and the child was not incompatible with Article 8 and 14 ECHR.
Another case concerned a man who was in the position to acknowledge a child, but - as this would have the consequence of the child's family name changing - he and the mother did not wish to do so, because they wanted to have the mother's family name (Hoge Raad, 24 February 1989, NJ 1989, 742). Again the Hoge Raad rejected this question by using the same reasoning as in the first case, in the so called 'Spring judgments'; the lack of judicial parenthood.
New legislation will offer fairer solutions to cases such as these. In the case of a gay or lesbian couple, the social parent ('niet-ouder') will be entitled to have authority of the child to (authority of a parent and a non-parent). This partner will have exactly the same status as the parent of the child with regard to the authority of the child. So, like the stepfather the non-parent with authority is obliged to support the child. Quite new, is the proposal of the Secretary of State from the Ministry of Justice to give succession rights to the partner who has authority and the child and the right to choose between the name of the parent and the name of the non-parent. Even the consequence of the nationality can be given to the child that will receive a social parent with 'parental' authority.
7. Equality and access rights
Before 1 October 1971 (Article 1:161 (5) BW (old), 6 May 1971, Stb. 290), a non-custodial parent had no legal right to maintain contact with the children who were in the custody of the other parent. No access rights were enshrined in either statute or case law. In 1980, the European Commission concluded (ECRM, 13 March 1980, NJ 1981, 121) that "according to its established case-law, the right to family life also contains the right of a parent to have access to or contact with the child on the understanding that the State may not interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in para. 2 of the Article, that says "protection of health and morals" and "protection of the rights and freedoms of others". As a consequence of this, Article 161 (5) (old) BW was not held to be in accordance with the rights protected by Article 8 ECHR.
Now, Article 1:377a BW explicitly guarantees the access rights of a parent, who does not exercise guardianship. The issue to be assessed concerns the admissibility of the request; after this has been determined, the possibility of an arrangement concerning parental access is investigated. The central issue here is the best interests of the child. The only requirement now is that the applicant "is or has been in such a relationship to the child that he is enjoying family life with his child within the meaning of Article 8 ECHR...... No regard is paid, in the light of Article 14 ECHR, to the question whether the relationship with the child is based on legal parenthood, acknowledgement, biological parenthood or any other relation, which can be considered equal to the previous relationship for the purposes of the application of Article 8 ECHR." This formula has since been repeated (Hoge Raad, 10 May 1985, NJ 1986, 5; Hoge Raad, 16 May 1986, NJ 1986, 627; Hoge Raad, 5 December 1986, NJ 1987, 957). Whether the request for access will be granted depends upon the specific aspects of the relationship, including the character of the parenthood and of the relationship, and the length of time during which there was communal life or care-giving.
By virtue of the judgments of the Hoge Raad, the circle of persons who are able to apply for a right of access has increased substantially. Although this judgment has also opened up (undesirable) possibilities for semen donors, incestuous fathers and grandfathers, rapists and others to begin legal proceedings for access rights, as a result of the Berrahab case (ECHR, 21 June 1988, NJ 1989, 746, NJCM Bulletin 1988, 579), the Hoge Raad reconsidered its position in 1989 (Hoge Raad, 10 November 1989, NJ 1990, 628). It held that "for the admissibility of the request it is required that the applicant not only state that he is the biological father, but also establish certain additional circumstances, from which follows that between him and the child there are ties which can be considered to be 'family life' within the meaning of Article 8 ECHR, so that there is room for investigation of the possible justification of access rights."
The consequence of this judgment is that being only the biological father of the child is insufficient for a right of parental access. The biological father must also establish certain incidental circumstances from which his relationship with the child can be considered to be a close, personal connection and therefore classified under the protected right of family life. Then his request will be upheld. The Hoge Raad does not give a restrictive catalogue of the circumstances necessary for having 'family life'. The general interpretation in the case law is "the necessary existence of a concrete family relation for a certain period, continued contact with the child after breaking off the relationship with the parent and a demonstrated interest in and care for the child" (Hoge Raad, 4 January 1991, NJ 1991, 253).
The next question which must be answered concerns the justness of the arrangement for the parental access in the actual case. The rights and interests of other persons, also involved in the relationship between the child and the parent who wishes to have visiting rights, will be balanced, because the right to access will influence also the child's other relationships. The judge will reject this request when access would be against the child's best interests. For example, the contact with the parent who does not have custody over the child can cause serious damage to the development of the child. Another reason can be the unsuitability of the parent.
In the new Act that entered into force on 2 November 1995 (Stb. 240) the circle of persons who will be able to request a right of access has been increased. Article 377f gives this right to anyone who has (had) a close personal relationship with the child (family life). With the words 'close personal relation', the legislator is linking Dutch law to the case law of the European Commission and Court, which gives an interpretation of family life as "a relationship...sufficiently close to constitute family life" (European Commission, 8823/78, 12 March 1980, unpublished). This means that everyone who can prove that he has or has had family life with the child will be entitled to ask the judge for access to the child. For instance: the so-called 'social parent' (e.g. the foster-parent) who has educated, raised and taken care of the child, treating him as belonging to his family for at least one year, can apply for access to the child or the grandparents or separated brothers and sisters who are possible candidates for the right to have access too. Maybe even a mother who cares for other people's children will be able, in certain circumstances, to appeal to her close personal relationship with the child in order to obtain certain visitation rights. Of course, after someone has been admitted to court the judge still must decide whether access would be in the best interests of the child. We have to note to the fact that by the enlargement of the circle of persons who may demand for access with the child, the agenda of the child may be filled soon. Children of 12 years or older have to be invited by the judge to be heard on the case (Art. 809 Rv(12)). The actual execution of this right - in written or oral form - differs from court to court.
One further right has also been given a legal basis. The Hoge Raad has held that the parent who has custody may be obliged to give information about important facts and circumstances concerning the child to the other parent (Hoge Raad, 8 February 1991, NJ 1992, 21). The following information can be supplied: schoolreports, a photograph of the child(ren), details of illnesses, etc. Besides this right to be informed, the new Act entitles the non-custodial parent with the right to be consulted in important questions (schoolchoice, religion, illness, etc.). How this consultation right will be realized in practice has to be waited for, because until now we have hardly any experience with these information and consultation rights of struggling parents/former spouses.
A remaining problem concerns the enforcement of the judgement. Because we are dealing
with people and problems of access and information arising from the breakdown of a relationship or
a marriage which is not harmonious, it is very difficult to devise legal provisions for these practical
8. Inequality and the family name
A married woman or a woman who has married and has not remarried, is allowed to use her (ex) husband's surname. Usually, in the Netherlands she will use his name preceding her maiden name and connected by a hyphen (Art. 1:9 para 1), though more and more women go on using their maiden name. After a divorce, the ex-husband can stop his wife from using his surname. He has to file a request, with the district court and there have to be important causes for complaint. This, however, is only possible if there are no (more) living descendants from his marriage (Art. 1:9 para 2). One might call this an equality with regard to the use of the spouse's surname.
In principle all Dutch children bear their father's surname. However, children born out of wedlock who are not acknowledged by their father, bear the surname of their mother (Art. I:5 para 1 and 2).(13) If the mother is unknown (e.g. in case of a newly born foundling), the Registrar may take down a provisional first name and surname in the Register, pending a decision of the Crown (Art. 1:5 para 30). The surname can be changed by Koninklijk Besluit (Royal Decree), on the recommendation of the Minister of Justice (Art. 1:7). The rules concerning requests for a change of surname have become less strict for foster-children, children born out of wedlock and for children of a divorced marriage who are being cared for by their mother (Rules of 1 February 1989). The consent of a child in question over twelve years old, is compulsory. The Rules also create the possibility to change an indecent or ridicule surname. The same applies for extremely frequent surnames (such as Smith or Jones).
In future people will probably have more freedom to choose either the husband's surname
or the wife's. A bill will be sent to Parliament. With regard to the family name of the child, in the
new Bill acknowledgement will no longer affect the name of the child: the parents will be given a
discretion in choosing the child's family name within 3 months after the child's birth or at the
moment of the acknowledgement. The children, who will be born later, will receive the surname of
the first child (to promote the feeling of the family-unity), according to a new letter from our
Secretary of State from the Ministry of Justice.(14)
9. The legal position of children
In the Netherlands a child has no capacity to perform legal acts (these legal acts may include: making a contract, but also taking decisions about medical treatment, abortion, what religion to follow, what parent to live with, visitation rights, etc.), so therefore someone has to be his legal representative, control his financial affairs, care for him and secure his education. In the natural course of things, these duties fall on the parents. They have parental responsibility which consists of power over the child on the one hand and control over the financial affairs on the other hand.
The last decade we can see a growing influence of the Right-for-children-movement and the human rights conventions, especially the European Convention. According to Art. 8,1 ECHR ("Everyone has the right to respect for his private and family life and his correspondence.") it is suggested that parents should respect the private life of their children and their correspondence. Of course this has to keep pace with the child's growing capacity of self-determination, but in principle, children should have the same rights as adults and they should have a growing power to use and implement these rights without parental consent. So this means that parents may read a letter written to their 9-year old daughter, but also that this will be a different matter when this daughter has become a teenager and receives a love-letter. In my opinion, in that case parents must have the child's permission before reading the letter from her boy-friend. Examples of this growing capacity of minors in decision-making in important matters can easily be given: the choice for a school, in religious matters (i.g. when parents alter their belief), a medical treatment of the child, the choice for a boy- or girl-friend, the choice to use contraceptives, etc.
The parents or guardians determine to a large extent how the child will be brought up and what is in their child's best interests. In practice, in conflicts children have no choice other than to comply with their parents' (or guardians') wishes. Children can ask a third party for help, but if parents do not accept this, nothing can be done, because the parents have parental responsibility. Then often the only solution is for the child to run away from home or to hide from their legal representative's authority. In my opinion however, it is better to avoid this running away, because then the child might be "out from the frying-pan into the fire" (homeless people, prostitution, drug-scene, etc.). For this reason, Dutch specialists in family and child law have proposed that children should have more rights (and duties) and that these rights should be legally protected. In this case the right of children to address themselves directly to a social worker or to a judge in a juvenile court seems very important. In spite of these proposals, it is not (yet) possible for a Dutch minor to start legal proceedings without the assistance of his or her legal representative, which will normally be a parent or a guardian.
The argument that the child should have a right to start legal proceedings is - in our opinion - reinforced by Article 6 ("In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... ") and Article 13 ("Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity") of the European Convention on Human Rights.
In the Netherlands judges must give children over 12 years the opportunity to be heard in any judicial proceedings in which they are involved, such as cases of divorce, change of parental authority, child-protection measures, arrangements concerning parental contact and so on. But this is simply a right to be invited by the court to be heard, rather than to ask the court for some intervention or mediation. Some experts are skeptical about this right to be heard, because they fear that the child may be forced by one of the parents to say what this parent wants. They argue that - generally speaking - this adds nothing to what the court can gather from the reports by the parties or the Child Care and Protection Board or any other child-protection organizations. In our opinion the effects of this right to be heard must indeed not be exaggerated. It is one of the many ways for the judge to come to a decision. On the other hand, for the child this right gives an opportunity to speak frankly about its situation. We do not see any dangers/problems with this right to be heard as long as it gives the possibility to speak with the judge in an informal way.
It is quite a different matter with the (suggested) right of the child to start legal proceedings, because this right might create more problems. The Rights-for-children-movement has had a great impact urging that children in principle should have the same rights as adults and that children should have a growing power (keeping pace with the child's growing capacity of self-determination) to use and implement these rights without parental consent or influence. However, although a lot of experts in the field of family and child law think that children above the age of twelve should have more rights, the Dutch government still has the view that a child itself is incapable to bring an application by himself. It is suggested that the child should be entitled to start legal proceedings when voluntary assistance fails. In september 1989, the Dutch Minister of Justice published a report concerning the legal status of minors. The Minister took the position that a child should not have a right to initiate proceedings. His reasons were that it was preferable that family conflicts should not be settled in court; if courts intervened too quickly, conflicts might escalate; the workload for the courts could become too heavy and legal aid costs would be too heavy. Although this is the official point of view, the last few years we can see a slight change into the direction of giving more rights to children, including the right to initiate legal proceedings, i.g. in the case of access to its parent a child (of twelve years or older) may ask the juvenile judge to change the access order. Hoge Raad 13 March 1987, NJ 1988, 190 and Hof Amsterdam on 13 July 1989 (NJ 1992, 504) The Amsterdam Court of appeal decided: "4.8. Minors are recognized in law as independent persons, with own claims with regard to the fundamental human rights, as formulated in the Constitution and in international conventions. In maintaining these rights the minor may not be frustrated that, by the circumstance that he is incapable to bring an application by himself, he has a dependent position. So in a concrete matter, the procedural incapability may not lead to a situation, that the minor is interfered with practising his fundamental rights, because this would lead to the situation that the special protection that in law is given to minor children, gives an interference to the minor's rights. [...,PV] So, in a concrete situation the minor can be seen as the party concerned, so that his request for the appointment by the judge of a special guardian ad litem may be dealt by the judge. [...,PV] In some case however, so much hurry is needed, that the appointment of this special guardian cannot be waited for." So the Court decided in this concrete case that the claim of the daughter against her father should be admitted. The Court of Appeal decided that the court had given a right decision by admitting the appeal of the daughter and by prohibiting the father to come into contact with his daughter. So in this case the parental power of the father was extremely limited by the Court and the Court of Appeal. The Hoge Raad in cassation did not annul these decisions.
Children, who have to be regarded as persons, do (also) have the right to complain to the
European Commission and the European Court. Because children are under parental control
(parent, guardian), normally cases concerning children should be brought to the Commission and
Court by a person who has this control. However, it may happen that the complaint of a child
concerns a governmental act with respect to his parent or guardian and is in substance also a
complaint against the parent or guardian. Under such circumstances the Commission accepts the
child as an applicant. For instance, Jon Nielsen (a twelve year old boy) was permitted to bring his
case to the Commission, because the application in substance was addressed against his mother,
who had exclusive parental rights over him (Schermers, 1991: 8). In each individual case the
Commission may decide whether a child is old enough to bring an application by himself (this is the
same situation with persons who - for various medical or legal reasons - are to be held incapable of
performing legal acts. So, this incapacity does not exclude them from bringing an application
before the Commission). The Commission decides case by case whether an application of such a
person can be admitted.
10. Spousal rights and obligations
Dutch family law contains provisions concerning the personal relation of the spouses as well as concerning the regime governing the property between them. The spouses owe each other fidelity, help and support and they are obliged to supply each other with the necessities of life (Art. 1:81). They have the duty to bring up and educate their children, to cohabit and together they must decide on a place to live. An appeal to the court is possible (Art. 1:82-83).
Both spouses must bear the costs of the household and the liabilities evolving from this duty to third parties (Art 1:84-85). Both parties have the duty to provide the other with housekeeping money. In conflicting situations each of the (or both) spouses can appeal to the court. The law makes no difference between man and wife, although in the Netherlands usually it still is the man who works and earns the money. However, opinions regarding the definition of gender-roles among partners in the domestic sphere have also changed. There is practically no opposition to having gainful employment outside the home for married women. About half of married homemakers would like to work. Research showed that respondents are not against child daycare centres and 90 per cent of the respondents say that they have no objection to a (hypothetical) situation in which the woman is the breadwinner and the man the domestic caretaker.
Irrespective of the regime concerning the property between them, the spouses need each other's consent for some legal acts, such as:
- contracts to dispose of certain goods to mortgage property or to give it in use; any action, by either or both spouses, that tends to end the use of the house as living quarters, or any action that ends the use of the goods or the furniture that come with the house in question;
- gifts and donations except the usual, modest ones;
- contracts, made outside the exercise of the profession or employment for which one of the spouses has to give surety or provide a guarantee or any form of security;
- a contract for purchase in instalments (Art. 1:81).
Most lovers in the Netherlands do not arrange marriage settlements before or during their marriage (75%). Most of the Dutch believe people that a marriage should be based on love and therefore it is uncommon to arrange marriage settlements. As a result of this, they are married in community of goods according to Dutch family law. This means that there is a complete community that contains all present and future property and also all debts (Art. 1:93-96). There are only two exceptions to this complete community of goods, because it does:
- not contain those objects for which the donor or testator decided that they should no be included in the community;
- not cover those goods and debts that are specifically attached to one of the spouses (Art. 1:94).
The administration of a good is in the hands of the spouse who brought it in the community. Therefore, spouses are obliged to inform each other about the state of the goods and the debts of the community (Art. 1:98). After the dissolution of the community of goods(15) the property will be divided.
A marriage settlement must be made by a 'notarial deed': before or during the wedding.
There are several systems of marriage settlements, but here I would like to mention the most
extreme regimen, namely, the total exclusion of any community of goods. The basic principle of this
system is, that each partner has and keeps his/her own property. Each is independent from the other
and not liable with his/her property for the other's debts. For the woman who does the housekeeping and earns no money this can lead to unfair circumstances, when the man has become rich and
wants to divorce. In this case he will receive everything and his former wife is just entitled to
alimony, if she is in need. In some cases the Hoge Raad has decided that in case the wife worked in
the business or shop of her husband (and received no salary for it) the man had to give her a
financial satisfaction for her unpaid work at the dissolution of the marriage. Thanks to a decision of
the Hoge Raad now a woman is entitled to the settlement of pension rights (that have been built up
by the husband) when it comes to a divorce.(16) Before this decision divorced women, or men who
did the housekeeping) encountered difficult financial problems in old age. Where those homemakers
had forfeited job skills and career development in favour of child-rearing and homemaking, they
would have no personal employment-based pension and little chance of acquiring one. As a result
of divorce these homemakers lost their right to any survivor's benefit arising under a pension plan
of which their spouse is a member.(17) Since the Act of 28 April 1994, Stb. 342, that entered into
force on 1 May 1995, now every spouse is entitled to the acquisition of pension assets during the
division of spousal property, unless the spouses had made a marriage settlement in which they
renounce this right.
In this report I have tried to demonstrate, that the impact of human rights on Netherlands family law has been enormous. Special attention has been given to Article 8 ECHR, because this provision appears to contain a complete code of family law and continues to exercise a considerable degree of influence upon the Dutch judges and legislature. As we saw, experts in family law have suggested that the whole Dutch code should be changed to bring it into line with the case law in the field of family law. As was concluded before, the scope of the ECHR has been extended, and the trend continues in such a way that no one can predict exactly how our family law will be changed in the next decade. The consequence of the changes introduced by case law is that Dutch family law has been transformed from a statute based law into a judge-made law.
1. 1 Associate professor in family and juvenile law at Tilburg University.
2. NJ 1991, 129 (NJ= Netherlands Jurisprudence).
3. Articles 12 and 14 ECHR and Article 26 of the International Convention for Civil and Political Rights (ICCPR) play an important role too.
4. This statement must be written at least 30 days after her husband's death.
5. Patrick Senaeve, The reform of Affiliation law in France and the benelux Countries, in: parenthood in Modern Society, Martinus Nijhoff, 1993, p. 96.
6. Senaeve, 1993, p. 95.
7. BW = Dutch Civil Code.
8. ECHR 27 October 1994 (Kroon et al. against The Netherlands), Series A, Nr 297-C).
9. See also Keegan v Ireland, judgment of 26 May 1994, Series A, No 290. In the Court's view the adoption process must be distinguished from the guardianship and custody proceedings. "As has been previously observed, the central problem in the present case relates to the placement of the child for adoption without the prior knowledge and consent of the applicant (..). The applicant had no rights under Irish law to challenge this decision either before the Adoption Board or before the courts, or, indeed, any standing in the adoption procedure generally (...). His only recourse to impede the adoption of his daughter was to bring guardianship and custody proceedings (..). By the time these proceedings had terminated the scales concerning the child's welfare had tilted inevitably in favour of the prospective adopters (..)." There thus has been a breach of the provisions of Art. 8 and 6 §1 of the Convention.
10. See in accordance with this judgment, the decision of the Court of Appeal in The Hague (in a similar case) from 12 May 1995, NJ 1995, 601.
11. Hoge Raad, 8 April 1988, NJ 1988, 170; Hoge Raad 18 May 1990, NJ 1991, 374 & 375.
12. Rv= Wetboek van Burgerlijke Rechtsvordering= Code on legal civil proceedings.
13. The Hoge Raad decided that this Dutch statute with regard to the surname was an infringement of Art. 26 of the International Convention for Civil and Political Rights (ICCPR), because it did not give parents the right to make a free choice. However, the Hoge Raad decided that it could not be the judge to decide about the policy with regard to the surname, because a decision of the judge could lead to a forced choice of the legislator (Hoge Raad 23 September 1988, NJ 1989, 740).
14. A Bill that already has been accepted by Parliament, but probably will be withdrawn, gave a special arrangement for people who couldnot make a choice for the surname of the child (a choice between the mother's or the father's surname). This Bill would make it possible, that if parents couldnot make a choice, the registrar would toss (e.g. with a coin). This solution has strongly been criticized and now it is changed in such a way that when the parents do not choose one surname for their child, the child will have his father's surname.
15. By the end of the marriage, a legal separation, a court decision dissolving the community or by a post-nuptial agreement tot dissolve the community.
16. Hoge Raad 27 November 1981, NJ 1982, 503 (the so-called 'Boon-van Loon'-decision).
17. The similar result applies to any such rights available to a cohabitator.