Spousal alimony in divorce proceedings in the Netherlands
If you are married and you are heading for divorce or dissolution of registered partnership, you may need to pay your spousal alimony. However, when it comes to international divorces (a divorce with an international element, for example, different nationalities or when you live abroad), it is not uncommon that foreign law will apply. If that is the case, advice will have to be sought from a lawyer abroad, according to Lucienne Diaz Murillo from GMW lawyers.
GMW Lawyers offer specialised legal services for expats in the Netherlands.
When the divorce proceeding takes place in the Netherlands, the Dutch court does not automatically apply Dutch law to spousal alimony requests. What law applies depends on your personal circumstances.
Generally, from a Dutch perspective on international private law, the main rule is that the law applies of the country where the person requesting the alimony (alimony creditor) has their habitual residence. However, there are exceptions to this rule.
When you and your spouse are both living in the Netherlands, it is likely that Dutch law applies to your alimony request. Whether your spouse is entitled to spousal alimony depends on the financial situation of both parties.
When Dutch law applies, the starting point with spousal alimony is that your (soon to be ex-) spouse can continue to live in a reasonably suitable position after the divorce as well. This means that if your spouse can fulfil their own needs and live in a reasonably suitable position after the divorce, they might not be entitled to spousal alimony. To find out, a calculation should be made, mainly on the grounds of your income.
Spousal alimony is calculated on the basis of:
- The need of the person claiming alimony (maintenance creditor)
- The income of the alimony creditor and their earning capacity
- The person who should pay alimony (maintenance debtor) and their ability to pay
This is specialist work. Knowledge of the law, case law and practical experience are essential for this.
Waiving the right of spousal alimony
In the event of divorce or dissolution of registered partnership, it is possible to waive the right of spousal alimony. However, you and your spouse need to agree on this, and an arrangement needs to be laid out in a divorce agreement.
Can the right to spousal alimony be excluded in case of divorce by prenuptial agreement?
The answer is no. In November 2022, the Supreme Court ruled (in line with previous case law) that such agreements are null and void. If you have included such paragraphs in prenuptial agreements, the agreement is not valid.
Even if you have included in the prenuptial agreement that all the (marital) assets remain separate, your spouse can still apply for spousal alimony. This also applies to the situation where your spouse receives part of your assets from the matrimonial property settlement.
At the end of the marriage in the event of divorce, a person’s eligibility for spousal alimony is only assessed. When calculating spousal alimony, it will also be necessary to consider whether it is reasonable. For example, your spouse must also do their best to use their earning capacity and if there is a large asset, the alimony creditor may have to intervene to fulfil their own needs. This depends on your personal circumstances.
Are you wondering how much spousal alimony you have to pay to your spouse in the event of a divorce or would you like to receive more guidance? It is then recommended to seek legal advice as soon as possible. The family and divorce lawyers at GMW lawyers are specialised in advising and calculating both spousal as well as child alimony.
Do you have any questions about your divorce or alimony in the Netherlands? Do you need some advice relating to your personal situation? Then do not hesitate to get in touch with GMW. Their experienced and professional team of English-speaking lawyers are always happy to help.