New rules on duration of spousal maintenance due to come into force on 1 January 2020
A Bill for amending the current law on spousal maintenance (partneralimentatie in Dutch) was tabled four years ago, back in 2015. The proponents of the Bill wanted to make the system of spousal maintenance fairer and at the same time simplify the way in which payments are calculated and shorten their duration. In the event, the latter is the only element that has survived the series of amendments that were made to the Bill during its progress through parliament.
Bill now passed by the Upper House
The Bill was passed by the Upper House of the Dutch parliament on 21 May, which means that it will come into force on 1 January 2020 (as the Spousal Maintenance (Review) Act).
Duration of spousal maintenance cut to a five-year maximum
Under the current law, spouses are legally obliged to financially support one another (if necessary) after their divorce for up to 12 years. As from 1 January 2020, however, the rule is that spousal maintenance payments should last for half the length of the marriage, subject to a maximum of five years. There are three exceptions to this rule:
- Where the recipient is responsible for looking after one or more young children born during the course of the marriage, the obligation to pay spousal maintenance ends when the youngest child reaches the age of 12, subject to a maximum duration of 12 years.
- The maximum duration of spousal maintenance is 10 years in the case of a person entitled to spousal maintenance who was married for more than 15 years, was born on or after 1 January 1970 and who is more than 10 years younger than the state pension age.
- The maximum duration is 10 years if the marriage lasted more than 15 years and if the person entitled to spousal maintenance is no more than 10 years younger than the state pension age. The obligation to pay spousal maintenance ends when the recipient reaches the state pension age (the date is fixed when the divorce is pronounced; in other words, any subsequent change in the state pension age does not affect the duration of maintenance payments).
If more than one exception applies to one and the same instance, the longest maximum duration applies.
Possibility of extending the five-year maximum period on grounds of hardship
In addition to creating three exceptions to the basic five-year rule for the maximum duration of maintenance payments, the new law also includes what is known as a ‘hardship clause’. Where, in the light of the prevailing circumstances, it would be neither reasonable nor fair to end the payment of spousal maintenance, the recipient may apply to the court for an extension of the maximum period. The application must be made within three months of maintenance payments coming to an end.
Are you entitled to spousal maintenance?
All the various time limits cited in the law are maximum periods. The fact is that there is an obligation to pay maintenance only if the recipient needs it and if the former spouse paying the maintenance has sufficient income to do so. If you’d like to find out more about what happens if circumstances change, you should read the article entitled ‘Time for adjusting your spousal maintenance payments?’.
Do you fall under the old or the new law?
The shorter maximum duration now applying to spousal maintenance applies only to ‘new cases’. If the court fixed your spousal maintenance payments (or if you and your former spouse agreed on the payment of spousal maintenance) before the new Act came into force, the old 12-year maximum still applies. This is also the case even if you are currently involved in legal proceedings about the payment of spousal maintenance, but no decision has yet been reached: the old 12-year maximum limit will also apply.
What if you’ve already filed a divorce petition, but no decision has yet been taken on spousal maintenance?
According to the explanatory memorandum accompanying the Act, the old rule applies if a divorce petition is filed before the date on which the new Act comes into force. In other words, if the court has not yet reached a decision on the payment of spousal maintenance, even if an application for spousal maintenance is made after the date on which the new Act comes into force, the old 12-year maximum limit applies.
More information on the new Act?
If you have any queries, either about the new Spousal Maintenance (Review) Act or about spousal maintenance in general, do get in touch either with me or with one of my family law colleagues at RWV.