Rivalutazzjoni tal-manteniment: meta tkun inġusta u tista' tinbidel?

Alimony becomes “unfair” in the legal sense when circumstances have changed so much that the amount no longer meets the statutory criteria of need and capacity to pay. Under Article 1:401 of the Dutch Civil Code (BW) either former spouse can then ask the court to change or end it, unless a written non-modification clause blocks that route; then only a drastic change will do.

This article covers changing an existing maintenance obligation. For how alimony is calculated in the first place, see our gwida kompluta għall-manteniment fl-Olanda.

When does the law allow a change in alimony?

The court changes alimony when need or capacity has changed so much that the current amount no longer meets the statutory criteria. The test is a recalculation on today’s figures, not a feeling that the amount is too high.

Dutch maintenance law works with two variables: the need of the recipient (behoefte) and the capacity of the payer (draagkracht). Article 1:401(1) BW allows a court order or an agreement on maintenance to be changed or withdrawn when, through a change of circumstances, it no longer meets those criteria. The person asking for the change must prove it.

Article 1:401 BW also offers two other routes. Under paragraph 4, a court order can be changed if it was based on incorrect or incomplete information from the start, for example concealed income. Under paragraph 5, an agreement can be changed if it was made in gross disregard of the statutory criteria (grove miskenning). That threshold is high.

What does a non-modification clause do?

A non-modification clause (niet-wijzigingsbeding) under Article 1:159 BW excludes a change based on changed circumstances. It must be agreed in writing. If the agreement was made before the divorce petition, the clause lapses unless the petition is filed within three months after the agreement (Article 1:159(2) BW).

Where the clause applies, the court can only set it aside if circumstances have changed so drastically that the applicant, by standards of reasonableness and fairness, can no longer be held to it (Article 1:159(3) BW). A substantial fall in income is usually not enough. The clause works both ways: it blocks a later reduction and a later increase.

Which changes count, and which do not?

A change counts if it affects need or capacity more than marginally and is not a deliberate choice to reduce the obligation. Courts look at the reason for the change as closely as at the change itself.

On the paying side, these usually count: involuntary dismissal, a forced reduction in hours, a lasting fall in business profits, illness or incapacity for work, and retirement at the state pension age. Retirement counts even though it was foreseeable at the divorce. If a payer retires early by choice, the court may calculate on what they could have earned.

On the receiving side, these usually count: substantially better-paid work, completing training and entering the labour market, an inheritance that reduces need, or the end of a period of caring for young children. A recipient whose earning capacity collapses through illness may ask for an increase, provided the payer has the capacity.

These do not count on their own: a voluntary move to lower-paid work, new debts, higher personal spending, or a new relationship with extra costs. The rule in case law is consistent: you cannot create the change and then rely on it.

What is earning capacity?

Courts can calculate on the income a party could reasonably earn (verdiencapaciteit) instead of actual income. This applies to a payer who reduced income by choice and to a recipient who could reasonably work more.

A career change for medical reasons, supported by medical evidence, is treated differently from one made out of preference. The person who made the change must prove it was necessary. Keep records of job applications, retraining and medical limitations; in a reassessment they matter as much as payslips.

Do new children or remarriage reduce alimony?

Not automatically. New children create a maintenance obligation that is taken into account, and child maintenance has priority over spousal maintenance where capacity is short.

Children from different relationships are in principle treated equally. Remarriage of the payer does not in itself reduce spousal maintenance; the income of a new partner can even improve the payer’s household position that the court examines.

When does cohabitation end alimony for good?

Under Article 1:160 BW spousal maintenance ends when the recipient remarries, enters a registered partnership or starts living with someone as if married or registered. The obligation does not revive if the new relationship ends.

Because the effect is final, courts apply this rule strictly. Sharing an address is not enough. Case law requires a lasting affective relationship, living together, mutual care and a joint household. The payer who invokes Article 1:160 BW must prove all elements.

Useful evidence includes registration at the same address in the municipal register (BRP), a joint lease or ownership, shared utility and insurance contracts, and joint bank accounts. Reports from private investigators are used but treated with caution, partly because of privacy rules. The obligation ends from the date the cohabitation started, so that date determines what was overpaid.

Has the alimony term already expired?

Check this first. For divorce petitions filed on or after 1 January 2020, Article 1:157 BW limits spousal maintenance to half the length of the marriage, with a maximum of five years, unless the court set a different term.

Three exceptions apply under Article 1:157(2)-(4) BW:

• Marriage longer than 15 years and the recipient at most 10 years below the state pension age (AOW age): maintenance runs until that age.
• Marriage longer than 15 years and the recipient born on or before 1 January 1970, more than 10 years below the AOW age: maintenance runs 10 years.
• Children of the marriage: maintenance does not end before the youngest reaches 12.

If several exceptions apply, the longest term counts. The term starts on the date the divorce is registered in the civil register (Article 1:157(6) BW). For petitions filed before 1 January 2020 the old regime applies, with a maximum of 12 years.

The recipient can ask the court to set a new term if ending the payments is unreasonable. That request must be filed within three months after the payments ended (Article 1:157(7) BW).

How does annual indexation affect fairness?

Alimony rises each year by law. Under Article 1:402a BW the Minister of Justice sets a percentage based on the wage index, published in the Staatscourant, and the new amount applies automatically from 1 January.

Indexation assumes that the payer’s income follows national wages. If it has not, the gap grows every year. Under Article 1:402a(5) BW indexation can be excluded, fully or for a period, by agreement or by court order. A payer whose income stayed flat can ask for that under the ordinary Article 1:401 BW test. Our article on indiċjar tal-manteniment jispjega l-kalkolu.

Do not simply keep paying the old amount. Unpaid indexation creates arrears, and the recipient can ask the National Maintenance Collection Agency (LBIO) to collect them, including by attaching wages.

Can conduct of the recipient limit alimony?

Only in exceptional cases. Case law accepts that seriously offensive conduct (grievend gedrag) by the recipient towards the payer can justify limiting spousal maintenance in amount or duration.

The bar is high. Infidelity, ordinary hostility or a painful separation are not enough. For maintenance between relatives, such as parents and adult children, Article 1:399 BW contains a similar rule on moderation because of conduct. Raise such arguments only with solid evidence: a failed allegation damages your credibility on everything else.

How are need and capacity calculated?

Courts follow the maintenance guidelines of the judiciary’s expert group (Expertgroep Alimentatienormen), the “Tremanormen”. They are not law, but they determine the outcome in most cases.

Need is often set at 60% of the net family income in the last years of the marriage, after deducting the costs of the children (the “hofnorm”). Either party can replace this with a detailed list of actual expenses (behoeftelijst). Only the shortfall the recipient cannot cover from their own income or earning capacity can be claimed.

Capacity is calculated from the payer’s net disposable income, after a fixed amount for the payer’s own living costs. Child maintenance goes first. Finally, the court compares both households (jusvergelijking) so the recipient does not end up with more to spend than the payer. Alimony has tax consequences on both sides; we do not advise on tax, so have that checked by a tax adviser.

How do you request a change in practice?

Start with figures, not with a letter. Collect the position at the time of the original order and today: payslips, annual income statements, tax returns, business accounts, benefit decisions, pension statements and fixed housing costs.

Put a recalculation based on the Tremanormen to the other party. Many changes are settled this way. Record any agreement in writing; if the original amount was set by the court, have the new agreement laid down so that it is enforceable.

Without agreement, the route is a petition (verzoekschrift) to the district court (rechtbank). In these proceedings you must be represented by a Dutch lawyer (advocaat). The other party can file a counter-request, and the court can order disclosure of income; an unexplained refusal counts against the refusing party.

From which date does the new amount apply?

The court can make the change retroactive, often to the date the petition was filed. A payer who waits a year after the change usually loses that year.

A recipient facing a retroactive reduction may have to repay. Courts are cautious about ordering repayment of money already spent on living costs and may choose a later start date for that reason. For both sides the lesson is the same: act promptly.

What if one of you lives abroad?

Within the EU, the EU Maintenance Regulation decides which court has jurisdiction, usually the courts where the defendant or the creditor habitually lives. The applicable law follows, for most member states, from the 2007 Hague Protocol and is mainly the law of the creditor’s habitual residence.

A move abroad can therefore change which court decides and which law applies, including the rules on duration and cohabitation. Dutch maintenance decisions can be enforced in other EU member states, and the LBIO acts as the Dutch central authority for cross-border collection.

Can you end alimony with a lump sum?

Yes. Spousal maintenance can be bought off with a single payment (afkoop), usually combined with a non-modification clause and an explicit waiver of future claims. A buy-out cannot be reopened later.

The amount depends on the remaining statutory term and on the different tax treatment of a lump sum; have a tax adviser check the figure. If the sum is paid in instalments, arrange security for those instalments.

X'għandek tiċċekkja bħala l-parti li tħallas?

Run through these points before you ask for a reduction.

• Check the date of the divorce petition: before or after 1 January 2020 decides the maximum term under Article 1:157 BW.
• Check whether your agreement contains a written non-modification clause under Article 1:159 BW.
• Document why your income fell, and show that it was not your choice.
• Calculate the current amount including annual indexation under Article 1:402a BW.
• Keep paying the full amount until a court or an agreement changes it, to avoid LBIO collection.
• Gather evidence of cohabitation under Article 1:160 BW only if the facts genuinely point that way.

X'għandek tivverifika bħala l-parti li tirċievi l-informazzjoni?

A request for a change can also come from your side, or be aimed at you.

• Check when the statutory term ends and whether you can file for an extension within three months after it ends (Article 1:157(7) BW).
• Calculate whether your need has risen or the payer’s capacity has grown enough to justify an increase.
• Keep records of your job applications, training and medical limitations to counter an earning-capacity argument.
• Check whether arrears exist and whether the LBIO can collect them.
• Be aware that living together with a new partner ends spousal maintenance permanently under Article 1:160 BW.

What can we do for you with an alimony reassessment?

tagħna avukati tad-divorzju u, avukati tal-familja act for payers and recipients.

• We check your divorce settlement for a non-modification clause, the applicable term and the indexation.
• We recalculate need and capacity on current figures using the Tremanormen.
• We draft the proposal to your former spouse and negotiate a written agreement.
• We draft and file the petition with the district court and represent you at the hearing.
• We assess the evidence of cohabitation under Article 1:160 BW.
• We advise on arrears and on dealing with collection by the LBIO.

sommarju

• Article 1:401 BW allows a change when need or capacity has changed so much that the amount no longer meets the statutory criteria.
• A written non-modification clause (Article 1:159 BW) can only be broken by a drastic change.
• Self-created changes, such as voluntarily earning less, do not count.
• Cohabitation as if married ends spousal maintenance permanently (Article 1:160 BW).
• Act promptly: the new amount usually applies from the date of the petition.

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