23 January 2023
Are you married and you are heading for divorce (or dissolution of registered partnership)?
Then you may need to pay your spouse spousal alimony. However, when it comes to international divorces (a divorce with an international element for example by different nationalities or when you live abroad), it is not uncommon that foreign law will apply. If foreign law applies, you have to ask for advice from a lawyer abroad. Today we will discuss spousal alimony in divorce proceedings in the Netherlands.
When the divorce proceeding takes places in the Netherlands, the Dutch court does not automatically apply Dutch law to spousal alimony requests. What law applies depends on your personal circumstances. However, in general (from a Dutch perspective on the international private law) the main rule is that the law applies of the country where the alimony creditor has their habitual residence. There are exceptions to this rule.
Do you and your spouse both live in the Netherlands? Then it is likely that Dutch law applies to your alimony request. Whether your spouse is eligible for spousal support depends on the financial situation of you and your spouse.
When Dutch law applies, the starting point with spousal alimony is that your (soon to be ex-) spouse can continue to live in a reasonably suitable position also after the divorce. This means that when your spouse could fulfil her own needs and can live in a reasonably suitable position also after the divorce, he or she might not be eligible to spousal alimony. To find out, you need to do a calculation, mainly based on your income.
Spousal alimony is calculated on the basis of, (1) the need of the maintenance creditor (the person claiming alimony), (2) what is the alimony creditor earning and does the alimony use their earning capacity and (3) the ability to pay of the maintenance debtor (the person who should pay alimony). This is specialist work. Knowledge of the law, case law and practical experience are essential for this.
In the event of divorce (or dissolution of registered partnership) it is possible to waive the right of spousal alimony. However, you and your spouse need to agree on this. You also need to lay this arrangement down in a (divorce)agreement.
Can you exclude the right to spousal alimony in case of divorce by prenuptial agreement? The answer is no. The Supreme Court ruled in November 2022 (and in line with previous case law) that such agreements are null and void. If you have included such paragraphs in prenuptial agreements, the agreement is not valid.
Even if you have included in the prenuptial agreement that all the (marital) assets remain separate, your spouse can still apply for spousal alimony. This also applies to the situation where your spouse receives part of your assets from the matrimonial property settlement.
At the end of the marriage in the event of divorce, a person’s eligibility for spousal alimony is only assessed. When calculating spousal alimony, it will also be necessary to consider whether it is reasonable. For example, your spouse must also do it’s best to use his/her earning capacity. If there is a large asset, the alimony creditor may have to intervene to fulfil his/her own needs. This depends on your personal circumstances.
Are you wondering how much spousal alimony you have to pay to your spouse in the event of a divorce? Or would like to have more guidance? At GMW lawyers we specialise in advising and calculating both spousal- as child alimony. Please contact us if you have any legal questions. We are happy to help.
