Marjet van Yperen-Groenleer has been a lawyer since 2004 and joined GMW Advocaten and the Legal Expa...
Spousal alimony: when the ex moves in with the new partner12 December 2012, by Marjet van Yperen-Groenleer
Many of those who pay alimony or maintenance to an ex-spouse hope that their obligation to do so will stop if their ex moves in with a new partner. However, things are not as straightforward as they may seem...
Article 160 of the Dutch Civil Code, Book I, states that the duty to pay spousal alimony for the average duration of 12 years ends:
› should the ex re-marry
› should the ex live with a new partner, under the covenant of a registered partnership
› should the ex live with a new partner, as if they were married or as if they had signed a registered partnership
The first two scenarios are clear and so is the third one, as long as the ex-spouse admits living in a new relationship, as meant by article 160. However, things can get messy if the new relationship is denied by the receiving ex-spouse for the sake of continuing alimony payments.
This is why it is essential that ex-spouses-to-be make sound agreements on the circumstances that may prematurely end spousal alimony payments. Doing so will not only prevent potential conflict-material from unfolding in an already tense situation, but it can actually bring advantages to both parties.
Score a win - win
A possible agreement between divorcing spouses could be that alimony payments go on for the duration of six months after the receiving spouse has moved in with his or her new partner.
The receiving ex-spouse has the benefit of being able to "test" the new relationship in total openness and honesty, giving it a try without the looming doom of losing the partner alimony, should the ex discover the new relationship.
The paying ex-spouse has the benefit of things having a better chance of working out well, since his or her ex can start a new relationship without the risk of impending financial loss.
Avoid the subject and prepare for pain
If no previous agreements were made, things can get really messy. The receiving ex-spouse may deny living in a new relationship, leaving the burden of proof on the paying ex-spouse.
The lawmaker’s wording of "living together as if they were married" is not straightforward to interpret, since several conditions must apply before a judge could rule in favour of the paying ex-spouse wanting to end his or her alimony obligations.
Photo by Flickr user quinn.anya
The receiving ex-spouse must have:
› 1. A long term relationship with the new partner,
› 2. Based on affective attachment,
› 3. Leading to the partners caring and providing for each other’s needs on a regular basis,
› 4. Whilst living together,
› 5. Within a joint household.
How do you credibly prove all of the above ?!
Hiring a private eye?
Some paying ex-spouses consider hiring a detective, to bring evidence of circumstances that might lead to a termination of their payment obligations towards their former spouse.
However, it is rather difficult to prove anything that goes beyond the fact that the two scrutinised parties do have a relationship and that they do "fun things" together. "Caring and providing for each other on a regular basis, within the joint household" is an especially difficult provision to prove.
And, last but not least, a detective can’t really say a whole lot about the durability of an affective relationship unfolding between the parties under observation.
Getting reliable advice
Making sound agreements is definitely the better option. As always, it saves time, money and energy, and helps preserve a sense of dignity and being in-charge, whatever the future may bring.
Marjet van Yperen-Groenleer is Attorney-at-Law at GMW Advocaten / Legal Expat Desk. For more information, please comment below or contact her directly.
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