17 December 2025
An obligation to pay spousal maintenance can end upon remarriage or “cohabiting as if married”. In this article we discuss the burden of proof and recent case law, which has significant implications for both parties.
This provision states that the obligation to pay spousal maintenance may end for the paying party if the maintenance recipient remarries, enters into a registered partnership, or cohabits with another person as if they were married. The final phrase, “cohabiting as if married”, was added to the provision later and has given rise to a substantial body of case law. The wording is somewhat vague and creates evidentiary difficulties for the maintenance payer.
The Supreme Court (ECLI:NL:HR:2001:ZC3603) has ruled that the concept of “cohabiting as if married” in Article 1:160 must be interpreted very narrowly. This is important because stopping spousal maintenance has major consequences for the maintenance recipient, and cannot be reversed.
The concept breaks down into several requirements. There must be an affectionate and lasting relationship; the cohabitants must care for each other reciprocally; they must live together; and they must run a joint household. For a joint household, it is important that the cohabitants contribute to the costs of that shared household.
The burden of proving “cohabiting as if married” rests with the maintenance payer, and strict requirements apply to the substantiation of that claim. If the court accepts the payer’s evidence, the maintenance recipient has the opportunity to provide counter-evidence.
In a recent judgment of the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2025:1305), the court held that a woman had not sufficiently disputed her former husband’s position. The husband argued that she was now “cohabiting as if married” with a new partner. The woman failed to provide enough counter-evidence, and therefore did not raise sufficient doubt for the court. The Court of Appeal concluded that she was indeed cohabiting as if married with her new partner, and the man was released from his maintenance obligation.
Although the maintenance payer faces strict substantiation requirements when arguing that there is “cohabiting as if married”, we are seeing the courts increasingly accommodate the payer. With a clearly well-founded position that is not convincingly refuted, the court may conclude that the maintenance obligation has ended.
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