Family member (spouse) of an EU citizen, can I stay in The Netherlands if we split up?
- Is my partner an EU Citizen?
- Consequences of a break-up or divorce for my residence permit
- Explainers
- Living under EU or Dutch Law
- Parental Custody
- Visitation
- Resources
- Contact
Is my partner an EU Citizen?
When is your spouse an EU Citizen? In short, if they have an EU passport.
If you have a residence permit for family (re)unification with an EU citizen , you will have completed the process Verification by EU Law in order to get your residence permit to live with your family member in The Netherlands.
What are the consequences of a break-up or divorce for my residence permit?
It depends;
If your (ex)partner has EU citizenship and you do not, it depends on the circumstances if you can remain in the Netherlands.
Lived together for longer than 5 years
Have you lived together in the Netherlands for longer than 5 years?
A break-up will have no effect on your right of residence and you can stay in the Netherlands.
Lived together for less than 5 years
Have you lived together in the Netherlands for less than 5 years?
You can stay in the Netherlands if you satisfy any one of these conditions:
- You have been in a relationship for at least 3 years and for 1 out of those 3 years you have lived together in the Netherlands under EU or Dutch Law*
- You have a child with your (ex)partner and you share parental custody*
- You have a child in the Netherlands and you are entitled to visitation*
- You have been subjected to domestic violence
*check the explainers below for more information
No requirement for a new residence permit
If the conditions above apply to you, there’s no need to reapply for a residence permit following a divorce or breakup. You must continue to meet the conditions for residence for EU nationals.
Your (ex)partner must remain in the Netherlands until the divorce has been finalised, try to make an arrangement with your (ex)partner that they will remain until the divorce has been finalised.
Child at School in the Netherlands
Do the conditions above not apply to you but you have a child that is attending school in The Netherlands? Then you can reside in The Netherlands as long as you’re taking care of your child if you meet both of the following two conditions:
- Your (ex)partner works or worked in The Netherlands, and
- Your (ex)partner lives or lived with you and your child in The Netherlands, or your child lives or lived with your (ex)partner in The Netherlands.
Explainers
Living under EU or Dutch Law
If you are living in The Netherlands as the partner of an EU Citizen, the process you completed to obtain a residence permit is called Verification by EU Law, you will then have obtained the same rights and duties as your partner.
You’ll have been allowed residence under Dutch Law (if your partner is Dutch) or EU law (if your partner has a different EU citizenship), it also means that you have had to follow the law as it pertains to Dutch or EU citizens.
If this applies to you, you have been living under Dutch or EU Law.
Parental Custody
Civil Law regulates parental power and is under personal and family law. Article 1:245 BW is the first article that discusses custody. It covers guardianship, custody and parental authority. Among other things, this article asserts that minors are subject to authority, which is defined as guardianship and parental authority.
The legal parents have joint authority over their children as parents.
Definitions for legal parents are listed in the list below. (from BW 1:198)
The mother is:
- The woman who gave birth to the child;
- The mother who took in the child as her own;
- The woman whose parenthood has been officially proved;
- The mother who acknowledged (declared parentship) of the child.
*If a child has been conceived through artificial insemination from an anonymous donor (as per the Artificial Insemination Donor Data Act), the woman to whom the biological mother is married or in a registered partnership at the time of birth is also the child’s mother.
The father is:
- The male who, at the time of the child’s birth, is either recorded as the mother’s registered partner or as her spouse;
- The male adoptive parent;
- The individual who acknowledged (declared parentship) of the child;
- The man whose paternity has been determined by the legal system.
If you are unmarried and have a child together, it’s possible that one of you doesn’t have legal custody over your child yet, this can be requested through the court. If you both agree that the other parent should have custody, you can do a joint application without an attorney.
If you or the other parent doesn’t agree, a request for parental authority can be done with the help of an attorney.
Authority after divorce or dissolution of registered partnership
After a separation or divorce, the parents retain joint custody.
If you want sole custody, you can request it via the procedure Request Parental Authority (Verzoek Gezag). A judge will only ever grant sole authority if that is the only option.
In a procedure to request sole custody:
- A lawyer is required
- The judge determines separately for each child which parent will have sole authority
- The judge always considers the best interests of the child
- The judge asks for their opinion if a child is older than 12 years
The attainment of sole parental custody does not affect the rights of the child and the other partner (or even grandparents) to visitation.
Visitation
Parents need to come to agreements regarding visitation with the children after a divorce. Depending on who has custody, this may be in a care agreement or visitation agreement. A judge may make a decision if the parents are unable to come to an agreement.
The child’s best interest is the judge’s primary consideration.
| Contact Agreement | Visitation Agreement |
|---|---|
|
Parents both have parental authority |
One parents has parental authority |
|
The child lives with 1 parent and has contact with the other.
You agree on who sees the children and when. You can agree on this together or file a request with the court. both legal parents together can start the procedure 1 of the legal parents can start the procedure |
You arrange this with the other parent, or you submit a request to the court. The contact arrangement determines how often you see the child.
You can get a contact arrangement if you: are the legal parent and the other parent has parental authority have a strong personal bond with the child, for example as a grandparent As a father or other ex-partner, you are obliged to see your child. The ex-partner with parental authority is obliged to inform you and consult you. |
This information doesn’t apply to (ex)couples who co-parent.
Co-parenting allows both parents authority and custody. The children spend approximately half their time with each parent and the rotation schedule is worked out by parents during the formalities of the divorce procedure.
Resources
Here are some links to more information on the topics discussed above,
Remember to use the translate function on your browser if you need to!
Who is the parent of a child?
https://maxius.nl/burgerlijk-wetboek-boek-1/boek1/titel11
Consequences for right of residence after divorce.
Can I apply for Parental Authority?
https://www.juridischloket.nl/familie-en-relatie/ouderschap/ouderlijk-gezag/
Contact/Visitation with children.
https://www.rechtspraak.nl/Onderwerpen/Omgang-met-kinderen/Paginas/default.aspx
Contact
Is some of this information incomplete or unclear?
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