A maintenance order is not fixed for ever. Where circumstances change, the court can vary the amount or reduce it to nil. An amount agreed in a covenant can be adjusted in the same way.
Legal basis
Article 1:401(1) of the Dutch Civil Code gives the ordinary ground: a court order or an agreement may be varied where, through a change of circumstances, it ceases to meet the statutory criteria. Paragraph 4 gives a second ground: the order or agreement rested from the outset on incorrect or incomplete information. Where the covenant contains a non-modification clause under Article 1:159, variation is only possible on a change so far-reaching that leaving the arrangement unchanged would be unacceptable by standards of reasonableness and fairness. Amounts are indexed annually by operation of law under Article 1:402a. For child maintenance, need follows from the family income during cohabitation and capacity is calculated under the Trema guidelines.
How it works in practice
Typical triggers are job loss, incapacity for work, a new partner, the birth of a child, or the child reaching eighteen or twenty-one. Timing matters: the court can vary retrospectively but is reluctant to order repayment, because maintenance has generally been spent. Anyone anticipating a fall in income should therefore raise it at once and record it.
Where it goes wrong
The paying parent stops unilaterally instead of applying for variation; the national maintenance collection agency can then enforce and the arrears mount. A second error is overlooking the annual indexation, so that too little has been paid for years. Third, where income falls, no examination is made of whether that was culpable and reversible; only then does it not count.
Related terms
Variation connects to child maintenance, spousal maintenance and the divorce covenant.
Have your circumstances changed? Our divorce lawyers calculate what a variation would produce.
