15 December 2020

The non-alteration clause in partner alimony

By Dylan Bertsch

In this weblog I discuss the non-alteration clause in partner alimony, the possibilities for breaking it and a specific case in which the non-alteration clause was broken.

What is a non-alteration clause?

If the parties make an agreement in joint consultation about the amount of partner alimony to be paid, it is an option to link a non-alteration clause to that agreement. The non-alteration clause can be translated literally: it is then not possible to change the amount of the partner alimony. Without a non-alteration clause, it is possible under the law to affect the amount of the partner alimony, for example if there are changes in circumstances, such as loss of income. In the case of a non-alteration clause, which can only be drawn up in writing, it is not possible to change the amount of the partner alimony on the basis of a change in circumstances. However, Article 1:159 paragraph 3 of the Dutch Civil Code makes an exception to this: when there is such a drastic change in circumstances that the applicant may no longer be bound by the non-alteration clause according to standards of reasonableness and fairness.

When does such a drastic change of circumstances occur?

This was discussed during the creation of the aforementioned article of law. In parliamentary documents dating from 1970/1971, the question was asked whether this included a large increase in capital or income of the alimony debtor and / or alimony creditor by winning the tote (read: the lottery) or receiving an inheritance. This question was answered in the affirmative. “There is little to cite more examples: it seems better to wait for the jurisprudence”, can be read further in the parliamentary documents from that time.

Illness can break through a non-alteration clause

Recent case law has shown that illness resulting in complete incapacity for work can break through the non-alteration clause. This case concerned a couple who got married in 1986, got divorced in 2009 and agreed on a non-alteration clause at the time of their divorce. The partner alimony that the husband would pay to the wife after the divorce could therefore not be changed. The man became unemployed at the beginning of 2015 and, not much later that year, the man was found no longer fit for work due to his illness. The court in Den Bosch ruled that the man’s unemployment would not cause the non-alteration clause to be broken, but his illness would. The man’s illness was not foreseen when the non-alteration clause was agreed. Moreover, the man could not be blamed for getting sick. In addition, it could not be assumed that the former spouses had intended to have this circumstance entirely at the risk of the husband. The court therefore held that this man’s illness is such a drastic change in circumstances that it breaks the non-alteration clause concluded in 2009.

Finally

Are you in a similar situation or do you have questions about this weblog? Please feel free to contact me without obligation.

Dylan Bertsch

Dylan Bertsch

Lawyer and mediator

Dylan Bertsch specializes in family law and is a committed and passionate lawyer and mediator.

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