"Find out what Dutch law means for you, as an expat", meeting of expats organised by Legal Expat Desk at the offices of GMW Advocaten in The Hague. Topics where employment law and divorce.

1. Find out what Dutch law means for you,
as an expat
Tuesday 27th November 2012

2. Marjet van Yperen-Groenleer
m.vanyperen@gmw.nl
Godelijn Boonman
g.boonman@gmw.nl

3. Key Life Events
• Relationships
• Children
• The end of relationships
• Death

4. Relationships
• Marriage
• Registered Partnership
• Cohabitation

5. What are the legal consequences of your
relationship and the manner in which you
choose to live
• Legal status of children
• Parental authority
• Recognition in other countries
• Property consequences
• Hereditary issues

6. Cohabitation
• The state has no legal interest
• Children are born out of wedlock
• Cohabitation Agreement
• Partners are not each others heirs

7. Marriage
• Partners are each others heirs;
• Joint parental authority;
• Both parents are legal parents of their children;
• Without prenuptial agreement (prenups), spouses are married in
general community of assets and property.

8. Marriage
• After moving to another country, check your matrimonial regime;
• If you have prenups, register them;
• Your matrimonial regime might change automatically after 10 years
of living in the Netherlands or after naturalization.

9. What is the legal status of children
born out of wedlock?
• Only legal relationship is with the mother;
• Recognition of the father is necessary for legal relationship;
• Only the mother has parental authority;
• Joint parental authority only if registered at court.

10. Children
• Always get permission in writing from the other parent to move
abroad permanently with a child

11. Divorce
• Expats can divorce in the Netherlands;
• Different regimes can apply to different aspects of a divorce;
• Under Dutch law the only ground for divorce is irretrievable
breakdown. It is a no fault system;
• A parenting plan is mandatory when filing for divorce;
• Residence permit.

12. Divorce
• You do not have to divorce in the country you were married in;
• Seek advice at an early stage from a lawyer in each relevant country.

13. Parenting plan
• Main place of residence;
• Care;
• Financial support;
• How the child is involved in drafting the parenting plan;
• Other arrangements if you wish.

14. What are the consequences of a divorce?
• Spousal support;
• Parenting plan;
• Division of matrimonial property;
• Pension.

15. Death
• A will: is your foreign will valid in the Netherlands?
• No will: statutory division (in Dutch: “wettelijke verdeling”)
• Taxation.

16. Expat Employee Rights
Introduction
Employee is very well protected under Dutch Labour Law;
Government has plans to change rules, however it is uncertain if and
when these will be implemented;

17. Expat Employee Rights
I Dutch Labour Law
II Employment Contract
III Termination of the employment contract

18. Dutch labour Law
Legal relation employer – employee is shaped by:
• Contract;
• Mandatory rules of the Dutch civil Code;
• European Legislation;
• Collective Agreement (in Dutch CAO);
• Spirit of the law;
• Case law;
• Fairness and reasonableness!
• Academic writing.

19. Employment contract
3 elements:
• Employee must perform the activities personally;
• Salary;
• Relationship of authority.

20. Employment contract
Contracts of employment are not required to have any particular form.
So, if the 3 criteria are met, but nothing is in writing or has been
signed, there is an employment contract!

21. Employment contract
Definite Contract
Termination by operation of law upon expiration
Indefinite Contract
Termination upon notice
Termination by the Subdistrict court
Mutual consent

22. Employer’s obligations
• Remuneration of the employee;
• At least minimum wages if above 23;
• 8% holiday allowance (even if it is not specified in the contract)!
• A minimum of 20 days leave (based on duration and hours of
employment);
• A healthy and safe work environment.

23. Employee’s obligations
• To perform to the best of ones abilities;
• To follow employer’s instructions.

24. Non-competition Clause
Definition: a clause in the employment contract which prevents
employees from working for another company in their area of
expertise for a certain period of time.
Purpose: to protect the employer from any infringement by the former
employee of employer’s economic interest.
Often perceived as unjust by expats.

25. Non-competition Clause
Always check if a non-competition clause is valid!
Void unless:
- Written agreement;
- Majority of age (18);
Other requirements:
- Clear description of prohibited activities;
- Limited to a certain period of time; usually 1 year;
- Geographic area;
- Renewal necessary after change of position.

26. Ways of getting out of it?
Subdistrict courts can set aside or limit when:
• Employer has no interest in maintaining the clause;
• Employer’s interest carries less weight than employee’s interest .
The Subdistrict court can also order compensation for duration
of the period.

27. Unilateral Change of Contract by Employer
Only in case of a compelling reason.
Reorganization to cut costs is NOT considered to be compelling.
Reorganization due to financial difficulties might be.

28. Termination of employment contract
• High degree of protection against dismissal;
• Also for expats?
• Different ways to terminate an employment contract;

29. Termination during trial period
A trial period must be agreed upon in writing
Either party may terminate the contract with immediate effect without
sanctions within:
• A maximum of 2 months if contract is for an indefinite period;
• A maximum of 1 month if contract is for a definite period < 2 years
• A maximum of 2 months if contract is for a definite period > 2 years

30. Termination by Notice
LRD (in Dutch BBA) dictates that UWV permission is mandatory.
LRD is applicable to expats?
Protection of expats by LRD is increasing: case law!

31. Termination by Notice
Suppose LRD is not applicable:
Termination by notice is valid when notice period is taken into
account.

32. Termination by Notice
Suppose LRD is applicable:
UWV permission is required to terminate by notice.
No permission?
Claim payment and salary

33. Termination by Subdistrict court
• Shorter proceedings;
• Severance may be awarded on the basis of the Subdistrict Court
Formula.

34. Mutual Consent
• No notice is required;
• Be sure to have the proposed termination agreement reviewed by a
lawyer.

35. Summary Dismissal
In Dutch: ontslag op staande voet
• Only in urgent cases;
• Validity depends on all the
circumstances.

36. What to do when summarily dismissed
What to do when summarily dismissed
• Contest termination and claim continuation of agreement;
Or
• Acquiesce in the termination and seek to recover damages on the
grounds that termination was unlawful.

37. E m.vanyperen@gmw.nl
E g.boonman@gmw.nl
www.legalexpatdesk.nl
www.facebook.com/legalexpatdesk
www.twitter.com/legalexpdatdesk
GMW Advocaten
Scheveningseweg 52
Postbus 85563
2508 CG Den Haag
T 070-3615048
F 070-3615400
I www.gmw.nl