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Legal Expat Desk Meeting bij GMW Advocaten 27 november 2012


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"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.

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Legal Expat Desk Meeting bij GMW Advocaten 27 november 2012

  1. 1. Find out what Dutch law means for you, as an expat Tuesday 27th November 2012
  2. 2. Marjet van Yperen-Groenleerm.vanyperen@gmw.nlGodelijn
  3. 3. Key Life Events• Relationships• Children• The end of relationships• Death
  4. 4. Relationships• Marriage• Registered Partnership• Cohabitation
  5. 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. 6. Cohabitation• The state has no legal interest• Children are born out of wedlock• Cohabitation Agreement• Partners are not each others heirs
  7. 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. 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. 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. 10. Children• Always get permission in writing from the other parent to move abroad permanently with a child
  11. 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. 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. 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. 14. What are the consequences of a divorce?• Spousal support;• Parenting plan;• Division of matrimonial property;• Pension.
  15. 15. Death• A will: is your foreign will valid in the Netherlands?• No will: statutory division (in Dutch: “wettelijke verdeling”)• Taxation.
  16. 16. Expat Employee RightsIntroductionEmployee is very well protected under Dutch Labour Law;Government has plans to change rules, however it is uncertain if andwhen these will be implemented;
  17. 17. Expat Employee RightsI Dutch Labour LawII Employment ContractIII Termination of the employment contract
  18. 18. Dutch labour LawLegal 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. 19. Employment contract3 elements:• Employee must perform the activities personally;• Salary;• Relationship of authority.
  20. 20. Employment contractContracts of employment are not required to have any particular form.So, if the 3 criteria are met, but nothing is in writing or has beensigned, there is an employment contract!
  21. 21. Employment contractDefinite ContractTermination by operation of law upon expirationIndefinite ContractTermination upon noticeTermination by the Subdistrict courtMutual consent
  22. 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. 23. Employee’s obligations• To perform to the best of ones abilities;• To follow employer’s instructions.
  24. 24. Non-competition ClauseDefinition: a clause in the employment contract which preventsemployees from working for another company in their area ofexpertise for a certain period of time.Purpose: to protect the employer from any infringement by the formeremployee of employer’s economic interest.Often perceived as unjust by expats.
  25. 25. Non-competition ClauseAlways 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. 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 durationof the period.
  27. 27. Unilateral Change of Contract by EmployerOnly in case of a compelling reason.Reorganization to cut costs is NOT considered to be compelling.Reorganization due to financial difficulties might be.
  28. 28. Termination of employment contract• High degree of protection against dismissal;• Also for expats?• Different ways to terminate an employment contract;
  29. 29. Termination during trial periodA trial period must be agreed upon in writingEither party may terminate the contract with immediate effect withoutsanctions 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. 30. Termination by NoticeLRD (in Dutch BBA) dictates that UWV permission is mandatory.LRD is applicable to expats?Protection of expats by LRD is increasing: case law!
  31. 31. Termination by NoticeSuppose LRD is not applicable:Termination by notice is valid when notice period is taken intoaccount.
  32. 32. Termination by NoticeSuppose LRD is applicable:UWV permission is required to terminate by notice.No permission?Claim payment and salary
  33. 33. Termination by Subdistrict court• Shorter proceedings;• Severance may be awarded on the basis of the Subdistrict Court Formula.
  34. 34. Mutual Consent• No notice is required;• Be sure to have the proposed termination agreement reviewed by a lawyer.
  35. 35. Summary DismissalIn Dutch: ontslag op staande voet • Only in urgent cases; • Validity depends on all the circumstances.
  36. 36. What to do when summarily dismissedWhat 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. 37. E m.vanyperen@gmw.nlE AdvocatenScheveningseweg 52Postbus 855632508 CG Den HaagT 070-3615048F 070-3615400I