It is possible to waive the right to spousal maintenance in case of a divorce (or dissolution of registered partnership). However, both parties have to agree on this and this arrangement then needs to be recorded in an agreement. So, is the waiver of spousal maintenance upon marriage possible? I will address this question in this blog.
When two people plan to marry they have the option to draw up a prenuptial agreement before a civil-law notary. But this is not an obligation. To put it more simply: to make financial arrangements for the upcoming marriage. These prenuptial arrangements sometimes include a clause waiving spousal maintenance if the marriage ends in divorce.
It is therefore possible to include an arrangement in the prenuptial agreement whereby spousal maintenance is waived reciprocally. The question is then whether this arrangement has any value. In short, the answer is no, because such an arrangement is invalid. The law (Article 1:400(2) of the Dutch Civil Code (Burgerlijk Wetboek)) states that such arrangements are invalid. The Supreme Court, our highest legal body, has confirmed this several times in the past. Nevertheless, this arrangement is still sometimes included in prenuptial agreements and is subsequently the subject of litigation. Recently the Court of Limburg also ruled the same. They ruled that an arrangement made in a prenuptial agreement regarding the waiver of spousal maintenance was invalid.
Reasonableness and fairness
In the aforementioned proceedings at the Court of Limburg, an appeal was made to reasonableness and fairness, as is often done in similar cases. The former husband in this case found it unacceptable by standards of reasonableness and fairness that his former wife was not obliged to abide by the arrangement made in the prenuptial agreement on the grounds of invalidity. Unfortunately for the former husband, the court did not agree with him on this point either. Incidentally, this court eventually ruled that the former husband did not have to pay spousal maintenance, but that was for a different reason.
I searched for a judicial decisions with a different outcome. And came across a ruling by the Court of Zwolle-Lelystad of 20 July 2005 (unpublished). The court also ruled that the arrangement made in the prenuptial agreement was invalid. They stated that the former husband had also invoked reasonableness and fairness and on this point the court agreed. The court referred to the changing social views on financial independence of spouses and former spouses, especially when there is no maintenance obligation regarding minor children.
In this case, other relevant circumstances also played a role. First of all, the age of the two ex-spouses (the ex-husband was 66 and the ex-wife 55) played a role. Secondly, the fact that they had already lived together for seven years before the marriage was also important. Thirdly, it was the second marriage for both spouses. Fourthly, the marriage had no significant impact on the woman’s earning capacity. Fifthly, the man still had a long-term maintenance obligation towards his first wife. And finally, there had been several legal proceedings in this regard which the man had found emotionally taxing.
This ruling of the Court of Zwolle-Lelystad was rendered more than 16 years ago. I have not been able to find any other exceptions. In short, the waiver of spousal maintenance in a prenuptial agreement is an arrangement in conflict with the law and is therefore invalid. An appeal to reasonableness and fairness is only in an exceptional case successful. In the event of a future divorce you should take into account that you will be obliged to pay spousal maintenance. Do you have a question about spousal maintenance? Please do not hesitate to contact me.