partnership

*Words printed like this are future links to as-yet unwritten entries in the Dictionary!

This is the first entry I am writing in the Dictionary, because this is the issue that I am explaining to clients over and over again. I don't mind that much, because I think it's something quite special that the Netherlands has three different forms of partnership that any two unrelated adults can enter into. I also think that it's quite special that any one of these forms of partnership is available to both same-sex and different-sex couples. Of course, everyone knows that same-sex couples can get married in the Netherlands, and so you won't be surprised to meet a woman who wants to introduce you to her wife, or a man who wants to introduce you to his husband; but it also works the other way: if you meet a man who wants to introduce you to his 'partner', do not assume that his partner is a man! Partnerships other than marriage are anything but a second-class category, but rather are a valid option for anyone who does not necessarily wish to deal with the institution of marriage.

The three forms of partnership relevant to Dutch immigration law are:
1. marriage (huwelijk),
2. registered partnership (geregistreerd partnerschap), and
3. unmarried, unregistered partnership a/k/a cohabitation (samenwonen)

Dutch immigration law generally does not care which form of partnership you entered into with the person you are joining in the Netherlands, as long as you can prove the existence of the partnership.

NOTE!! When I say 'Dutch immigration law', this means that it does not apply to you if one of you is an EU citizen who moved from another EU country to the Netherlands. EU law* applies to that situation.

1. and 2. Marriage and registered partnership

I mention these two institutions in one breath because they have a lot in common and the differences are few.

Both have so-called public legal effect: this means that the two partners are entering into a bond with each other that can have an effect on their legal relationships with other people. Both of these are entered into in public at your local city hall, with a ceremony and witnesses: they are a matter of public record, because it's other people's business if you are married or have a registered partner.

By default, both marriage and registered partnership create community of property (gemeenschap van goederen) under Dutch law-- that also means that if one spouse/partner is on the losing end of a lawsuit, the other spouse/partner might have to pay up as well. That also means that in case of a divorce or dissolution, you will have to settle on or have a court battle about the division of property. You don't have to have community of property: but before you get married or enter into a registered partnership, you have to go to a civil-law notary (notaris) who will draw up a prenuptial agreement (huwelijkse voorwaarden) arranging for anything up to total exclusion of community of property (koude uitsluiting). A civil-law notary is much more than the 'notary public' known to many Anglo-Saxon countries: a civil-law notary is a highly qualified lawyer in her or his own right specialized in drawing up documents, and is also a sworn public servant. Thus signing a prenuptial agreement before a civil-law notary makes it a matter of public record, which is necessary to limit the obligations of your marriage or registered partnership.

• Both marriage and registered partnership are entered into in a ceremony with at least two witnesses at your local city hall (or, if you can splash out, at an alternative location that your local city government might make available).
• Both marriage and registered partnership require a minimum waiting period of 14 days (to allow for cold feet) after you make your intention known to the city hall, known as ondertrouw.
• Both marriage and registered partnership require both of you to submit proof of non-impediment to marriage* 
• Both marriage and registered partnership require that at least one of you is a legal resident of the Netherlands, registered at an address in the Netherlands (address registration*)-- you cannot both come to the Netherlands on vacation and get married or enter a registered partnership.
• If either one of you is a non-EU citizen* who is not in possession of a permanent residence permit, you cannot enter into ondertrouw until the city government asks the IND* for permission for you to get married-- this is the so-called M46 statement (M46-verklaring). Don't sweat this-- it's largely a formality. The IND may call both of you in to verify that you are really a couple, or they may not.

At the same time, however, the IND's approval in this phase (which is just a very light test of whether there could be any theoretical objections to the immigrant spouse/partner getting married or partnered) does not necessarily mean that the immigrant spouse/partner's immigration application will ultimately be accepted! I have seen many mixed couples who thought that getting married by itself, including getting the IND's approval, was enough for the foreign spouse to be able to stay in the Netherlands, and they thought they were done after going through all the paperwork of getting married. They were to get a rude awakening when, for example, the foreign spouse was denied entry after returning from vacation for not having a residence permit*!

Within 6 weeks after the city government asked the IND for the M46 statement it will get it back and the city government will let you know that you can come in and go into ondertrouw.

There are only two differences between marriage and registered partnership-- and in fact, when two men are involved, there is only one difference between marriage and registered partnership.
• If one of the spouses in a marriage is a woman and she has a baby, her spouse will automatically be considered to be the legal father or legal co-mother. If one of the partners in a registered partnership has a baby, on the other hand, her male partner has to go to city hall to actively acknowledge (erkennen) paternity; her female partner, on the other hand, has to make sure the paternity of the sperm donor is legally denied (ontkenning vaderschap) and then adopt the baby as a legal co-mother. (As you can see, this issue is entirely irrelevant for two men who are married or registered partners.)
• Registered partnership is much easier to dissolve amicably-- the partners can sign a termination agreement before an attorney and file it at city hall. Marriage can only be dissolved by going to court for a divorce.

Note that Dutch family law, by contrast to the law of Anglo-Saxon countries, is always concerned with legal parenthood, a purely formal definition that is not always the same as biological parenthood. (This is one of the classic differences between common law and civil law.) The biological mother will almost always be a legal mother, as this has everything to do with one of the most primal facts of life, as captured by the Roman legal maxim mater semper certa est. The male of almost any animal species, however, can never be entirely certain if he's the biological father. Therefore, the Romans chose to simplify matters by making the husband of the mother the father, even if everyone and the milkman knows he's not. And this persists into Dutch law and almost all of the other legal systems of Continental Europe.


3. Cohabitation

This couldn't be simpler to explain. Cohabitation is simply living together in a relationship (or more colorfully, 'living in sin'). Yet this is the institution that I spend the most time explaining to people.

Reason #1 is usually the the Dutch half of a couple, who simply cannot comprehend how simple this institution is. It is, in fact, quite an un-Dutch legal institution in its simplicity, and it is in fact one of the few lasting achievements of the Swinging 1970s in a country that is generally not as swinging as people seem to think. Ever since about 1979, it has been possible to immigrate to the Netherlands as the unmarried, de facto partner of a Dutch citizen or established immigrant.

The Dutch partner usually cannot get the simple word samenwonen out of their mouth-- their tongue, used to things being more complicated than that, turns it into samenlevingscontract. "So we have to go to the notaris and draw up a samenlevingscontract, right?" "Nope," I answer. You only have to draw up a contract with each other if you want to-- for each other. If you want to put on paper who will do the cooking, who will do the cleaning, who the couch belongs to and who the TV belongs to.

I have also often had the Dutch partner bring their nervous parents with them to an appointment, who are worried that if something happens to the Dutch partner, the foreign partner will inherit the family farm. Also, no. There are virtually no legal consequences for third parties resulting from cohabitation. No automatic community of property either.  "You are roommates with benefits," as I put it to my clients.

The only requirements for immigration benefits from samenwonen are:

• you prove that you both could get married to each other, in theory, if you wanted to. This mainly means (since we can hopefully assume that you are not siblings) that you both have to obtain proof of non-impediment to marriage*. 
• the Dutch partner or established immigrant has to sign a sponsorship declaration (garantverklaring). This is a requirement because if you are married or registered partners, you have a legal obligation to take care of each other. If you are cohabiting partners, you do not have this legal obligation. By the same token, however, the garantverklaring does not say that you have an obligation to take care of each other! (Another top nervous-parent question.) The text only says that if the foreign partner has to go on welfare (in particular, bijstand), the Dutch partner will get the bill (since then it will be assumed that the Dutch partner didn't take care of their foreign partner). Likewise if the foreign partner gets deported and incurs costs to the state.
• and last, but not least, you have to be registered as living at one address (see address registration*). 

Now it's that last requirement that often confuses the foreign partner. I've had a lot of foreign partners approach me saying that they have a 'registered partnership' and they need to know how to dissolve it or whether they qualify for continued residence*. Further inquiries from my side reveal that they were really just cohabiting. Especially for foreign partners from Anglo-Saxon countries, to whom address registration is completely alien, it can be confusing-- they had to go to a city office, usually together with their partner, to 'register' at their partner's address, so they thought they had a 'registered' partnership.

In case you needed any more reminding that the swinging years are over under the current, deeply conservative government formed by the VVD and the CDA with the support of Geert Wilders' PVV, this last legacy of Holland's progressive social norms may be abolished by law, at least if a change in the law announced by the CDA minister of immigration, Gerd Leers, is passed. Cohabitation would then no longer be an option for immigration: you would have to get married or get a registered partnership. The plan was immediately attacked by the COC, the national GLBT organization, as being particularly detrimental to lesbian and gay couples who don't have the option of getting married in the foreign partner's home country; so we'll see if the change actually happens. Fingers crossed.

Conclusion: How all three forms of partnership are the same

In the eyes of Dutch immigration law, there is no difference between any of these forms of partnership. The requirements of Dutch immigration law are equally strict for all of them. This especially means that if you are Dutch and you have a foreign boyfriend or girlfriend, and you do not satisfy the income requirements for him or her to get a residence permit as your cohabiting partner, getting married will not change that.