The duty to testify and its exceptions
Everyone who is called must give evidence — but spouses and blood relatives up to the second degree may decline to do so under Section 165(2) DCCP. That family privilege falls away in two situations: where the witness is himself a party, and where the related party litigates solely as the representative of another person or of a legal entity. Anyone who wishes to examine a family member as a witness must test those two exceptions in advance.
Daughter refuses to testify about her father-director
A daughter is called in a provisional examination of witnesses to give evidence about her father, who is being held liable. She invokes the family privilege and remains silent. The Court of Appeal 's-Hertogenbosch upholds that reliance in September 2023 — even though the intended claim turns partly on directors' liability (ECLI:NL:GHSHE:2023:2846).
The father was involved in the proceedings in two ways: privately, on account of alleged wrongful conduct under Section 6:162 DCC, and in his capacity as statutory director of the company that was also a party. The applicant argued that the family privilege therefore did not apply: the claim concerned, after all, his conduct as a director, in which case the party "acts in a representative capacity". The court rejected that argument.
The privilege falls away where the witness is himself a party
The family privilege does not apply where the related party "acts in a representative capacity". That concept concerns a party who does not litigate pro se — who does not assert his own rights and interests — but acts as the representative of another person or of a legal entity, such as a statutory director (the court refers to Asser Procesrecht/Asser 3 2023/133). In the 's-Hertogenbosch case that argument failed because the father had also been sued pro se: it concerned a single set of facts, and in that situation the daughter cannot give evidence in one respect but not in another. The privilege remained intact, including for questions about his conduct as a director.
The sharpest limit, however, lies elsewhere: a party-witness is not entitled to the family privilege. That rule goes back to the Supreme Court decision of 19 February 1993 (ECLI:NL:HR:1993:ZC0877) and was applied by the District Court Midden-Nederland, which rejected a mother's reliance on the family privilege precisely because she was herself the defendant — and thus a party-witness (ECLI:NL:RBMNE:2021:5569). A person who is himself a party to the proceedings cannot, therefore, shelter behind the family tie when the opposing party calls him as a witness. That aligns with the possibility of examining the parties themselves as witnesses under Section 164 DCCP.
What does survive, even for a party-witness, is the limited privilege of Section 165(3) DCCP: a witness may leave an individual question unanswered where, by answering it, he would expose himself, his blood relatives or relatives by marriage in the direct line or in the collateral line to the second or third degree, or his (former) spouse, registered partner or life companion, to the risk of a criminal conviction for an offence. This is not a general right of silence — it is tested question by question, as the Court of Appeal 's-Hertogenbosch confirmed in 2025 when it upheld reliance on this right for three specific questions (ECLI:NL:GHSHE:2025:1432).
What does this mean for anyone wishing to examine a family member as a witness?
Anyone who, in commercial litigation, wishes to call a family member as a witness should test two things in advance. Is the family member himself a party to the proceedings? Then he is a party-witness and cannot rely on the family privilege; his evidence can be compelled in full. Is the family member not a party, but does the related party appear in the proceedings solely as the representative of another person or of a legal entity — for example as a director, without being a party pro se? Then the protection likewise falls away. The privilege holds fully only where neither exception applies: the family member is not himself a party, and the related party litigates on his own account rather than acting as the representative of, for instance, a legal entity.
Expect the practical hurdles as well. Even a person who claims a privilege must in principle appear at the hearing so that the ground for refusal can be tested; the judge decides there. On 3 October 2025 the Supreme Court confirmed that a decision upholding reliance on the privilege qualifies as a final decision against which a legal remedy is available without leave, whereas a decision that the witness must first appear is an interim decision (ECLI:NL:HR:2025:1462). And bear in mind individual refusals under subsection 3 for questions that are sensitive in criminal-law terms.
Frequently asked questions
May a family member refuse to testify against you?
In principle, yes. Spouses, registered partners (including former ones) and blood relatives or relatives by marriage up to the second degree may decline the duty to testify under Section 165(2)(a) DCCP. That right does not apply, however, where the family member is himself a party, nor where the related party appears solely as the representative of another person or of a legal entity.
Can someone who is himself a party rely on the family privilege?
No. A party-witness is not entitled to the family privilege (Supreme Court, 19 February 1993). A person who appears in the proceedings as defendant or claimant and is called as a witness by the opposing party must give evidence — including about a family member on the other side. The privilege against self-incrimination under subsection 3 does, however, remain available question by question.
What does "acts in a representative capacity" mean in Section 165 DCCP?
A party acts in a representative capacity where it does not litigate for its own rights and interests, but as the representative of another person or of a legal entity — for example a statutory director on behalf of his company. In that case the family privilege of his relatives falls away. Where the same person also litigates pro se, the protection remains intact for the connected set of facts.
Cited case law
Supreme Court: ECLI:NL:HR:1993:ZC0877 · ECLI:NL:HR:2025:1462
Courts of Appeal: ECLI:NL:GHSHE:2023:2846 · ECLI:NL:GHSHE:2025:1432
District Courts: ECLI:NL:RBMNE:2021:5569 · ECLI:NL:RBAMS:2015:4173