Retroactive alimony in the Netherlands: commencement date, repayment and arrears

Retroactive alimony in the Netherlands is maintenance that is set, increased or reduced with effect from a date before the court gives its decision. Dutch law allows it: under article 1:402 of the Burgerlijk Wetboek (Civil Code) the court itself determines the date from which a maintenance obligation runs, and that date may lie in the past. In practice the court anchors it to the day the petition was filed, and it uses its freedom to go further back with deliberate restraint, because a retroactive change almost always creates an obligation to repay money that has already been spent.

This article deals with the retroactive side of maintenance: when a court will set an earlier commencement date, when an existing order can be changed with effect from the past, what happens to overpaid instalments, and how far a court will go in moderating the resulting repayment. For the basic rules on who is entitled to what, how the amount is calculated and how long the obligation lasts, see our complete guide to child and spousal maintenance in the Netherlands.

What retroactive alimony means under Dutch law

Two situations are often confused. The first is a first-time determination: no maintenance has ever been set, and the court now has to decide not only the amount but the date from which it is owed. The second is a change: an order or an agreement already exists, and one of the parties asks the court to raise it, lower it or end it, with effect from a date in the past. Both fall under the heading of retroactivity, but they are governed by different provisions and the arguments run differently.

The commencement date is a decision of the court

Article 1:402 BW gives the court a genuine discretion over the commencement date. It is not bound to the date of its own decision, nor to the date requested by the applicant, and it does not have to state extensive reasons for the date it chooses. That discretion cuts both ways: an applicant who assumes maintenance will automatically run from the day the marriage broke down may be disappointed, and a payer who assumes an order can never bite before it is given may be caught out.

In a first-time determination the practical starting point is the date on which the petition was filed. From that moment the other party knows a claim is being made and can take it into account. Going back further is possible, but it requires something more: a demand for maintenance that was clearly communicated, correspondence in which the other party was warned, or conduct that made it impossible to file earlier. A claim covering a period during which the other party had no idea a claim was coming is the hardest of all to obtain.

Retroactivity is not the same as arrears

A separate point that causes confusion is the difference between retroactive alimony and unpaid arrears. Arrears arise when maintenance was already owed under an existing order or agreement and simply was not paid. There the entitlement is not in dispute, only the collection. Retroactive alimony concerns a period for which no obligation existed yet, or existed at a different level, and it therefore requires a decision from the court before anything can be collected at all.

Changing an existing maintenance order with retroactive effect

Most retroactivity disputes are change cases, and they run on article 1:401 BW.

A change of circumstances

Under the first paragraph of article 1:401 BW, a maintenance order or agreement can be amended or withdrawn if, through a change of circumstances, it no longer meets the statutory criteria of need and capacity to pay. Loss of employment, a substantial fall in income, a new maintenance obligation towards a second family, long-term incapacity, the recipient starting to cohabit with a new partner as though married, or the recipient’s income rising materially are all capable of qualifying. The change has to be more than temporary and it has to be demonstrated with documents, not asserted.

The date from which the amendment takes effect is again for the court. A payer whose income collapsed in January but who only filed a petition in October should not assume the reduction will run from January. Courts do sometimes go back to the moment the change occurred, particularly where the payer informed the recipient immediately and the recipient could therefore have adjusted. Silence works against the payer, because the recipient was entitled to rely on the payments continuing.

An order based on incorrect or incomplete information

The fourth paragraph of article 1:401 BW covers a different problem: the order was wrong from the start because it was based on incorrect or incomplete information. Undisclosed income, a business result that was presented misleadingly, or an omitted source of assets can all bring a case within this provision. Here retroactivity to the original commencement date is much more readily available, because the maintenance was never correctly set in the first place. This is the route to consider where a payer suspects that the other party concealed income, or where a recipient discovers that the payer’s declared income bore little relation to reality.

Where the parties agreed the amount themselves

An agreement recorded in a divorce covenant can also be changed, but the threshold differs. If the parties determined the maintenance without applying the statutory criteria at all, the agreement can be amended where it was concluded on the basis of a gross misjudgement of those criteria. If the covenant contains a non-modification clause, a niet-wijzigingsbeding under article 1:159 BW, the bar is higher still: the clause stands unless a change of circumstances is so drastic that the applicant can no longer be held to it in all fairness. Courts apply that test strictly, and an ordinary drop in income does not meet it.

The repayment problem: why courts are cautious about going back

The reason Dutch courts hesitate to make a reduction retroactive is straightforward. Maintenance is intended to be consumed. Someone who received a monthly payment for a year has, in the ordinary course, spent it on rent, groceries and the children. If a court then lowers the amount with effect from a date twelve months ago, the difference becomes a debt, and the recipient has to find money that no longer exists.

The Hoge Raad has translated that reality into a binding standard. In its judgment of 25 April 2014 (ECLI:NL:HR:2014:1001) the Supreme Court confirmed that a court must exercise caution when giving retroactive effect to a change in maintenance, in particular where doing so produces a repayment obligation with serious consequences for the recipient. The court has to assess, on the basis of what has emerged in the proceedings, whether repayment of the overpaid amounts can reasonably be required, taking account of the recipient’s financial position and the size of the sum involved. It must do so of its own motion: the recipient does not have to raise the point for the court to be required to consider it.

What the court actually weighs

In deciding whether repayment can reasonably be demanded, courts look at a recognisable set of factors. How large is the amount compared with the recipient’s income. Was the maintenance consumed as ordinary monthly income, or was part of it saved or spent on something recoverable. Could the recipient have foreseen the reduction, for instance because the payer announced the change and warned that a petition would follow. Did either party delay the proceedings unnecessarily. And, in child maintenance cases, what effect would a repayment order have on the household in which the child lives.

The last point matters more than payers expect. Where the reduction concerns child maintenance, the money was spent on the child, and courts are reluctant to create a debt in the household where that child is being raised. It is not impossible, but the threshold is high.

Moderation and instalments

A court that does grant a retroactive reduction has several ways of softening the result. It can set the commencement date later than requested, so that the retroactive period is shorter. It can limit the repayment to part of the overpaid amount. It can rule that no repayment is due at all and let the reduction operate only for the future. And it can order repayment in instalments over a period that fits the recipient’s means. In practice a combination is common: a modest retroactive period, a capped repayment, and a payment schedule.

Moderation in the strict statutory sense is a narrower concept and is worth keeping separate. Article 1:399 BW allows a court to moderate the maintenance obligation of blood relatives and relatives by affinity where the conduct of the person entitled to maintenance means that support cannot reasonably be expected in full; the provision does not apply to the maintenance of minor children. For spousal maintenance there is no general power to reduce the amount because of bad behaviour. Only in exceptional cases will conduct towards the former spouse be held to have severed the shared responsibility that underlies the obligation, and the case law on that point is demanding. Our article on the limits of reasonableness in a maintenance reassessment sets out where those boundaries lie.

Arrears, indexation and limitation periods

Retroactive claims and arrears meet in one place: the calculation. Anyone reconstructing what was owed over a past period has to take three things into account.

The first is statutory indexation. Under article 1:402a BW every maintenance amount set by a Dutch court or agreed between the parties is adjusted on 1 January each year by a percentage set by the Minister of Justice and Security and published in the Staatscourant. The adjustment is automatic. It does not require a decision, a reminder or a new agreement, and it applies even if neither party ever thought about it. Payers who kept transferring the original amount for years are therefore in arrears without realising it, and the shortfall compounds. The indexation percentage changes annually and should always be looked up for each year of the period being reconstructed.

The second is limitation. Instalments of maintenance are periodic payments, and under article 3:308 BW a claim to a periodic payment becomes time-barred five years after the day following the day on which it became due. Arrears older than five years can therefore usually no longer be enforced unless limitation was interrupted in time, for example by a written demand that meets the requirements of article 3:317 BW. Keeping copies of demands is not administrative tidiness; it is what preserves the claim.

The third is set-off and voluntary payments. Payers frequently point to sums paid directly for the benefit of the children or the household during the disputed period, such as school fees or mortgage instalments. Whether those payments count towards the maintenance depends on what was agreed and on what the payments were for. Courts are willing to take them into account, but only where the payer can show that they were made in discharge of the maintenance obligation rather than as a voluntary extra.

Collecting what is owed once the court has decided

A maintenance decision is an enforceable title. Once it is served, a bailiff can attach wages, benefits, bank balances and other assets without any further court decision, and a retroactive award is enforced in exactly the same way as a current one. The practical difference is size: a lump sum covering a past period is harder to collect than a monthly instalment, and a payment arrangement is often the more realistic route.

For maintenance that remains unpaid there is also the Landelijk Bureau Inning Onderhoudsbijdragen, the LBIO. Where an enforceable order exists and instalments have gone unpaid, the LBIO can take over collection on behalf of the recipient. Its involvement is free of charge for the recipient, while the debtor is charged an additional amount on top of the arrears, and the LBIO also handles collection where one of the parties lives abroad. It works with recent arrears rather than with historic debts, so applying promptly matters.

Where enforcement fails entirely and the payer clearly has the means but refuses, Dutch law permits imprisonment for debt in maintenance cases as a last resort. It is applied rarely and only after other routes have been exhausted, but the possibility exists and is occasionally granted. Non-payment of maintenance is otherwise a civil matter in the Netherlands, not a criminal offence, so there is no point in reporting it to the police. If the obligation to pay is itself disputed, that dispute belongs before the family court, not in the enforcement stage.

Provisional measures while proceedings run

Retroactivity disputes are frequently caused by delay. Divorce proceedings take months, and in the meantime the household still has to be paid for. Dutch procedure has a remedy designed exactly for that gap: voorlopige voorzieningen, provisional measures, which can be requested before or during the divorce proceedings and are dealt with quickly. They can fix a temporary maintenance amount, decide who stays in the family home and settle the care arrangements for the children until the final decision.

Using that route has a second advantage. A provisional measure sets a clear date from which payment is owed, which removes much of the argument about retroactivity later on. Our article on provisional measures in divorce proceedings explains how they work and how quickly they can be obtained. Waiting for the final decision and then asking the court to reach back over the intervening period is the harder and less certain route.

Cross-border cases

Where one of the parties lives outside the Netherlands, three questions have to be answered separately: which court has jurisdiction, which law applies, and how a decision is enforced abroad.

Within the European Union, Council Regulation (EC) No 4/2009 on maintenance obligations governs jurisdiction and enforcement. As a rule the creditor may bring proceedings either in the country of their own habitual residence or in that of the debtor. The applicable law is determined by the 2007 Hague Protocol, which in principle points to the law of the creditor’s habitual residence. That has direct consequences for retroactivity, because the extent to which maintenance can be awarded over a past period is a question of the applicable substantive law, not of Dutch procedure.

Outside the European Union, the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides a framework for recognition, enforcement and administrative cooperation between central authorities. It applies between the European Union and a growing group of contracting states, and it is the route that now applies in relation to the United Kingdom, since Regulation 4/2009 ceased to apply there after Brexit. Where no instrument applies at all, enforcement depends on the national law of the country where the debtor lives, which is slower and considerably less predictable.

What to do if you are the payer

If your circumstances have changed, act on the day it happens rather than when the pressure becomes unbearable. Notify the recipient in writing, explain what has changed and propose an adjustment. That letter does three things: it starts the conversation, it preserves the argument that the recipient could have anticipated a reduction, and it makes a later request for a retroactive commencement date considerably more credible. Keep paying the existing amount, or as much of it as you can, while the discussion runs. Unilaterally stopping payment does not create a legal position; it creates arrears and an enforcement file.

If you believe the original order was based on information that was incorrect or incomplete, gather the evidence before filing. A change based on the fourth paragraph of article 1:401 BW stands or falls on documents: tax assessments, annual accounts, bank statements. And be realistic about what a retroactive reduction achieves. Even where the court agrees the amount was too high, it may well decide that the overpaid sums do not have to be repaid.

What to do if you are the recipient

Do not wait. Every month without a formal claim is a month that is harder to recover, and the commencement date will in most cases be no earlier than the day the petition was filed. If you cannot yet file for divorce or for a final maintenance order, ask for provisional measures. If maintenance has been agreed but not paid, send a written demand that interrupts the limitation period and keep proof of it.

Check the indexation as well. Many recipients have been receiving less than they were entitled to for years without knowing it, because the annual adjustment was never applied. That shortfall can be claimed, subject to the five-year limitation period, and it does not require a change to the underlying order. Finally, if the payer applies for a reduction with retroactive effect, put your financial position before the court in detail. The court has to assess whether repayment can reasonably be demanded, and it can only do so on the basis of what is in the file. For the rules on when the obligation ends altogether, see our article on when the maintenance obligation comes to an end, and on the wider consequences of separation see our overview of the legal issues a divorce or separation raises.

Getting advice on a retroactive maintenance claim

Retroactive maintenance cases turn on dates, documents and timing rather than on principle. The difference between a claim that runs from the day you first wrote to the other party and one that runs from the day the court decides can amount to a year of income, and the difference between a repayment order and a clean reduction can be just as large.

Law & More advises payers and recipients on setting, changing and enforcing maintenance, including claims and defences that reach back into the past. We assess whether a retroactive commencement date is realistic in your case, calculate the arrears including indexation, and represent clients before the family court and in cross-border proceedings. If maintenance has been claimed over a past period, or you want to change an order with effect from an earlier date, please contact our family law team.

Frequently asked questions

Retroactive maintenance claims turn on the commencement date, the limitation period and whether overpaid instalments have to be repaid. The answers below summarise the main points.