ANTOKOLSKAIA/BOELE-WOELKI 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 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 dissolv ing 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 Marria ge 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 Govemment 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 Divorce, dissolution and transformation 2.l Divorce For more than 30 years, the sole ground for divorce has been the irretrievable breakdown of the marriage(Art. 1: 151)33 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 31. See section 23 of ths report. No figures are currently available on the trans formation and the obsequent dissolution ofregistered partnerships. 32. See Schrama, opcit. (note 9 33. Since 1October 1971
ANTOKOLSKAIA/BOELE-WOELKI 58 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 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 ma ke 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 ‘halfway 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 2 Divorce, dissolution and transformation 2.1 Divorce For more than 30 years, the sole ground for divorce has been the irretrievable breakdown of the marriage (Art. 1:151).33 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. 31. See section 2.3 of this report. No figures are currently available on the transformation and the subsequent dissolution of registered partnerships. 32. See Schrama, op.cit.(note 9). 33. Since 1st October 1971
DUTCH FAMILY LAWIN THE 2 IST CENTUR 33000 32000 31000 29000 1995199619971998199920002001 Divorce rate 1995-200134 2.2 Dissolution of a registered partnership s regards the dissolution of the partnership by a court, a parallel was sought with divorce granted by a court. However, the two sets of rules are not identical. There are two differences: First, an application for the dissolution of a registered partnership by a court can only be made by one of the partners(Art. 1: 80c/d and Art. 1: 80e), whereas a divorce can be granted upon a joint application by the two spouses. Moreover,a divorce upon joint application is only granted when the two spouses consider that their marriage has irretrieva bly broken down whereas the fact that the registered partnership has irretrievably broken down is irrelevant as regards the dissolution of the registered partnership. Secondly, the dissolution of a registered partnership by the mutual onsent of the partners without the intervention of a court has no equivalent in the law of divorce. This difference was alleged, during the parliamentary debates, to be justified by the fact that a registered partnership creates no relationship of filiation been introduced with regard to children of registered partners js blistered partnership The question of child protection would not arise at the end of a registered partners However, this argument no longer holds true. Since 1st January 2002 joint custody has Dissolution by the mutual consent of the partners that they have to draw up a declaration, which must be signed by both a notary or a la wyer and by the two partners (Art. 1: 80c/c). This declaration must disclose partners have come to an agreement to put an end to their partnership and indicate the date when the agreement See Centraal Bureauvoorde statistiek op cit. (note 10 1995 1997 2001 41703487 33740324593357 4650 35. See section 4.2. l of this report
DUTCH FAMILY LAW IN THE 21ST CENTURY 59 29000 30000 31000 32000 33000 34000 35000 36000 37000 38000 1995 1996 1997 1998 1999 2000 2001 Divorce rate 1995-200134 2.2 Dissolution of a registered partnership As regards the dissolution of the partnership by a court, a parallel was sought with divorce granted by a court. However, the two sets of rules are not identical. There are two differences: First, an application for the dissolution of a registered partnership by a court can only be made by one of the partners (Art. 1:80c/d and Art. 1:80e), whereas a divorce can be granted upon a joint application by the two spouses. Moreover, a divorce upon joint application is only granted when the two spouses consider that their marriage has irretrievably broken down whereas the fact that the registered partnership has irretrievably broken down is irrelevant as regards the dissolution of the registered partnership. Secondly, the dissolution of a registered partnership by the mutual consent of the partners without the intervention of a court has no equivalent in the law of divorce. This difference was alleged, during the parliamentary debates, to be justified by the fact that a registered partnership creates no relationship of filiation. The question of child protection would not arise at the end of a registered partnership. However, this argument no longer holds true. Since 1st January 2002 joint custody has been introduced with regard to children of registered partners.35 Dissolution by the mutual consent of the partners requires that they have to draw up a declaration, which must be signed by both a notary or a lawyer and by the two partners (Art. 1:80c/c). This declaration must disclose that the partners have come to an agreement to put an end to their partnership and indicate the date when the agreement 34. See Centraal Bureau voor de Statistiek op.cit. (note 10). 1995 1996 1997 1998 1999 2000 2001 34170 34871 33740 32459 33571 34650 37505 35. See section 4.2.1 of this report