Alimony in the Netherlands is unfair, in the legal sense, when circumstances have changed so far since the order or the agreement was made that it no longer meets the statutory criteria of need and capacity to pay. Article 1:401 of the Dutch Civil Code allows either former spouse to ask the court to vary or end maintenance on that basis. The test is not whether the paying party feels the amount is too high, but whether a demonstrable change in need or in capacity has made the current figure indefensible, and the burden of showing it rests on the party asking for the change.
This article deals with the reassessment of an existing maintenance obligation and with the limits of reasonableness that apply to it. For how maintenance is calculated in the first place, the duration rules and the difference between child and spousal support, see our complete guide to alimony in the Netherlands.
What the law means by unfair
Dutch maintenance law works with two variables: the need of the recipient (behoefte) and the capacity of the payer to meet it (draagkracht). An order fixes both at a moment in time. It does not freeze them. Article 1:401 of the Dutch Civil Code provides that a court order or an agreement on maintenance can be varied or withdrawn where, as a result of a change of circumstances, it no longer meets the statutory criteria.
Unfairness in this sense is therefore an arithmetic question dressed as a moral one. The court is not asked whether the arrangement feels unjust. It is asked to recalculate need and capacity on today’s figures and to see whether the answer differs materially from the figure now being paid. What makes the argument a legal one rather than a complaint is that the difference is caused by a change, that the change is real and documented, and that it is not a change the applicant engineered.
Two further routes to a change
Changed circumstances are the usual route but not the only one. The same article allows a variation where the original order, from the outset, did not meet the statutory criteria because it was based on incorrect or incomplete information. This is the route for a case in which one party concealed income or a second job at the time of the divorce, and it looks backwards rather than forwards.
For maintenance agreed between the parties rather than fixed by a court, there is a third route: an agreement entered into in gross disregard of the statutory criteria can be varied even without a change of circumstances. That threshold is high, and it exists precisely so that a settlement is not reopened merely because one party later regrets the figure.
The non-modification clause
Many divorce settlements contain a non-modification clause (niet-wijzigingsbeding) under article 1:159 of the Dutch Civil Code, which excludes variation on the ground of changed circumstances. It has to be agreed in writing. Where it applies, the ordinary reassessment route is closed, and the only way through is the exception in the same article: the court may set the clause aside where circumstances have changed so drastically that the applicant may no longer, by standards of reasonableness and fairness, be held to it.
That is a materially harder test than the ordinary one, and it is where the phrase limits of reasonableness earns its meaning. A significant fall in income will normally support an ordinary reassessment; it will not automatically break a non-modification clause. Anyone considering such a clause during a divorce should understand that it cuts both ways: it protects the recipient against a later reduction and it protects the payer against a later increase, and it survives events neither party foresaw.
Which changes count, and which do not
A change qualifies if it affects need or capacity in a way that is more than marginal and that is not attributable to a deliberate choice made in order to reduce the obligation. Dutch courts look at the reason for the change as closely as at the change itself.
On the paying side, involuntary loss of employment, a forced reduction in hours, a genuine and sustained fall in the profits of a business, the onset of illness or incapacity for work, and retirement all qualify. Retirement is worth a separate word: the fact that it was foreseeable at the time of the divorce does not disqualify it, because what matters is that the capacity to pay has actually and permanently fallen, not that the fall was a surprise. Where a payer retires early and voluntarily, however, the court is likely to look at what they could have earned had they continued.
On the receiving side, taking up substantially better-paid work, completing a training course and entering the labour market, an inheritance or another change in assets that reduces need, and the ending of a period of care for young children all qualify. So does the reverse: a recipient whose earning capacity collapses through illness may ask for an increase, provided the payer has the capacity to meet it.
What does not qualify is instructive. A voluntary move to lower-paid work, taking on new debts, an increase in the payer’s own spending, or a new relationship that brings additional costs will not, on their own, reduce the obligation. Neither will an ordinary cost-of-living rise in the recipient’s salary. The recurring theme is that the applicant cannot create the change and then rely on it.
The concept of earning capacity
Dutch courts do not calculate capacity purely on actual income. Where a payer has reduced their income by choice, or has failed to make a serious effort to restore it, the court may calculate on the basis of the income the payer could reasonably earn (verdiencapaciteit). A career change made for reasons of health, supported by medical evidence, is treated differently from one made for reasons of preference, and the burden of showing that the change was necessary lies on the person who made it.
The same logic applies to a recipient. Where a former spouse could reasonably be expected to work more, or to have looked for work over the years since the divorce, a court can take account of an earning capacity that is not being used. This is why a reassessment often turns into a discussion about what each party has actually done since the divorce, and why documenting job applications, retraining and medical limitations matters as much as documenting income.
New family obligations
A payer who has children in a new relationship acquires a maintenance obligation towards them, and that obligation is taken into account. It does not simply displace the existing one. Dutch law gives priority to child maintenance over spousal maintenance where capacity is insufficient to meet both, and children from different relationships are in principle treated equally. Remarriage in itself does not reduce spousal maintenance; the new partner’s own income may in fact affect the household position that the court examines. Expecting a reduction as an automatic consequence of a new family is the single most common misconception in this area.
Cohabitation: the rule that ends maintenance permanently
Article 1:160 of the Dutch Civil Code provides that the obligation to pay spousal maintenance ends when the recipient remarries, enters into a registered partnership, or begins living together with another person as if they were married or as if they had registered their partnership. The consequence is definitive: the obligation ends, and it does not revive if the new relationship later breaks down.
Because the effect is so drastic, Dutch courts apply the provision restrictively. Living at the same address is not enough. The case law requires an affective relationship of a lasting nature, cohabitation, mutual care, and a joint household. All of those elements must be present, and the person invoking the provision has to prove them.
That evidential burden is the real difficulty. Municipal registration of a shared address, joint tenancy or ownership, shared utility and insurance contracts, joint bank accounts and evidence of shared expenditure are the material a court works with. Observation reports commissioned from private investigators are sometimes used and are treated with caution, particularly where the way the evidence was gathered raises its own questions under data protection law. Before spending money on that route, take advice on what the court is likely to accept.
Duration: the obligation may already have ended
Before arguing that maintenance has become unfair, check whether it is still running at all. For divorce petitions filed on or after 1 January 2020, article 1:157 of the Dutch Civil Code sets the duration at half the length of the marriage with a maximum of five years, unless the court has fixed a different term.
Three exceptions extend that period. Where the marriage lasted longer than fifteen years and the recipient will reach the state pension age within ten years, the obligation runs until that age is reached. Where the marriage lasted longer than fifteen years, the recipient was born on or before 1 January 1970 and is more than ten years away from the state pension age, the obligation lasts ten years. And where there are children of the marriage, the obligation does not end before the youngest child reaches the age of twelve. Where more than one of these applies, the longest period governs.
Two practical points follow. Divorces begun before 1 January 2020 remain governed by the previous regime, under which the maximum was twelve years, so the date the petition was filed is the first thing to establish. And the statutory term is a maximum rather than a guarantee: an obligation can be varied or ended earlier under article 1:401 if the circumstances justify it, and the court can also extend it in cases of hardship on application made before the term expires.
Indexation: an increase nobody decided on
Maintenance amounts are adjusted each year by operation of law. Under article 1:402a of the Dutch Civil Code the Minister of Justice and Security determines the percentage annually, on the basis of the development of wages, and publishes it in the Staatscourant. The new amount applies automatically from 1 January; no letter, no demand and no agreement is needed, and the increase is due whether or not anyone drew attention to it.
That mechanism is a real source of the kind of unfairness this article is about, because it assumes the payer’s income moves with national wage trends. Where it has not, the gap widens every year without anyone having taken a decision. After several years of high statutory indexation the compounded effect can be considerable, and a payer whose income has been flat may be paying a figure that bears no relation to the calculation the court originally made.
Two responses exist. Indexation can be excluded by agreement, either at the time of the divorce or later, and courts will normally record such an agreement. And a court can vary or exclude it. In both cases the argument is the ordinary one under article 1:401: capacity has not developed as the indexation assumes, and the indexed figure no longer meets the statutory criteria. Our article on alimony indexation explains how the adjustment is calculated and applied.
One warning. Simply paying the old amount because the increase is unaffordable creates arrears, and arrears are enforceable. The National Maintenance Collection Agency (LBIO) can be asked by the recipient to collect, and it has real powers, including attachment of wages. If the indexed amount cannot be paid, the correct step is to seek a variation, and to do so promptly, not to pay what you consider reasonable and wait for the argument to arrive.
The limits of reasonableness
Dutch law contains one further mechanism that belongs in a discussion of fairness. Article 1:399 of the Dutch Civil Code allows the court to moderate the maintenance obligation on the ground of such conduct by the person entitled to maintenance that claiming it cannot reasonably be required, or cannot be required in full.
Alongside it, case law under the spousal maintenance provisions recognises that seriously offensive conduct (grievend gedrag) by the recipient towards the payer can, in exceptional cases, justify limiting the obligation in amount or in time. The threshold is deliberately high. The courts start from the position that a divorce is rarely free of hurt and that maintenance is not a reward for good behaviour, so ordinary acrimony, infidelity or an unpleasant separation will not do. What has been accepted has generally involved conduct of a different order, sustained over time and directed at the payer.
The practical significance is limited but real. It means that reasonableness in Dutch maintenance law is not confined to arithmetic, and that in extreme cases conduct is relevant. It also means that arguments of this kind should be advanced sparingly and with evidence, because a failed allegation of this sort damages the credibility of everything else in the file.
Situations that regularly lead to a variation
Four fact patterns account for most successful applications, and the differences between them show how the test is applied.
Involuntary loss of income
A payer is made redundant and finds work only at a materially lower salary. The court will look at three things: that the loss was not the payer’s choice, that the fall in income is substantial rather than incidental, and that the payer has made real efforts to restore their position. Evidence of the redundancy, of the job search and of the new terms of employment carries the application. Where the loss is temporary, a court may vary the amount for a defined period rather than permanently, which is often the outcome that best matches the facts.
The recipient becomes self-sufficient
Spousal maintenance exists to bridge a gap. Where the recipient completes training, returns to the labour market and reaches an income that meets their need, the basis for the payment falls away and the obligation can be reduced or ended. The relevant evidence is the recipient’s current income, which is why disclosure matters so much in these cases. Note that the question is whether need is still there, not whether the recipient is doing well in absolute terms: a modest need that is now covered ends the obligation just as effectively as a large salary.
The recipient forms a new household
Where the recipient begins living with a new partner in the way article 1:160 requires, the obligation ends by operation of law from the date the situation arose, not from the date of the court’s decision. That makes the date on which the cohabitation began an important question in its own right, because it determines what has been overpaid. It also makes prompt action sensible: recovering payments made over several years is possible in principle but is harder in practice, and courts are cautious about ordering repayment of maintenance that has already been consumed.
Retirement
When the payer reaches the state pension age, income normally falls to a pension and the calculation has to be redone. The application is usually straightforward: the retirement confirmation and the pension statements establish the new capacity. The point to watch is timing. Filing shortly before or promptly after retirement keeps the reassessment aligned with the actual change; leaving it for a year creates arrears at the old level that still have to be dealt with.
How a reassessment works in practice
The process begins with figures rather than with a lawyer’s letter. Assemble the material that shows the position at the time of the original order and the position now: payslips and annual income statements, tax returns, the annual accounts of a business, benefit decisions, pension statements, and the housing and other fixed costs that the calculation takes into account. Dutch courts work with a standard methodology set out in the maintenance guidelines used by the judiciary, and a calculation prepared on that basis is what makes an application concrete rather than rhetorical.
The next step is to put the recalculation to the other party. Many variations are settled without proceedings, because both sides can see the same arithmetic. An agreement reached this way should be recorded in writing and, where the original figure was fixed by the court, submitted for the court’s approval so that the new amount is enforceable and the old order does not remain outstanding.
Where agreement is not reached, the route is a petition (verzoekschrift) to the district court, and in family proceedings of this kind representation by a Dutch advocaat is required. The other party may respond and may bring a counter-application. The court can order disclosure of financial information, and a refusal to provide it is not a neutral act: the court draws its own conclusions from an unwillingness to be transparent about income.
Retroactive effect and the risk of repayment
A court may set the new amount with effect from a date earlier than its decision, and often does so from the date the application was filed. That cuts both ways. A payer who waits a year after the change loses the benefit of that year, while a recipient faced with a retroactive reduction may be ordered to repay. Because repayment can cause real hardship where the money has been spent on living costs, courts are reserved about ordering it, and they may set the effective date later for that reason. The lesson for both sides is the same: file promptly.
What the process costs and how long it takes
Court fees are set annually by the Ministry of Justice and Security and published in the annex to the Court Fees Act, with a reduced rate for applicants on a low income; legal aid may be available depending on income and assets, subject to an own contribution assessed by the Legal Aid Board. A straightforward reassessment that both sides engage with can be dealt with within months; a contested case involving business income, hidden earnings or disputed cohabitation takes considerably longer, mainly because of the disclosure that has to precede the hearing.
How need and capacity are actually calculated
A reassessment is only as good as the recalculation behind it, so it helps to know what the court will be doing with your figures. Dutch courts apply a common methodology set out in the maintenance guidelines drawn up by the judiciary’s own expert group, which is revised periodically. The guidelines are not legislation and a court may depart from them, but in practice they determine the outcome of most cases.
Need is the starting point. For spousal maintenance the courts of appeal commonly work with a rule of thumb under which the need of the former spouse is set at sixty per cent of the net family income during the final years of the marriage, after deducting the costs of the children. That figure is a working assumption rather than a rule, and either party may displace it with a properly substantiated schedule of actual expenditure (behoeftelijst) covering housing, insurance, transport, medical costs and the rest of a normal household budget. Where the marriage was short or the incomes were similar, the schedule usually gives a more realistic answer than the percentage.
Against need stands residual need (behoeftigheid): what the recipient can meet from their own income and, where relevant, from their own earning capacity. Only the shortfall is capable of being claimed. This is the point at which a recipient who has returned to work or come into assets sees the claim reduce, and it is the reason a variation application so often turns on the recipient’s current position rather than the payer’s.
Capacity is then calculated from the payer’s net available income. A norm amount is set aside for the payer’s own reasonable cost of living, and a proportion of what remains is treated as available for maintenance, with priority given to child maintenance where both are payable. Housing costs, pension contributions, debts that the court accepts as relevant and the income of a new partner in the household all enter that calculation. Finally the courts apply a comparison (jusvergelijking) to check that the result does not leave the recipient with more free spending power than the payer.
Maintenance also has tax consequences for both parties, and those consequences feed back into the net figures used in the calculation. We do not give tax advice; where the amounts are significant, have the position checked by a tax specialist before an agreement is signed, because a figure that looks right gross can look very different net.
Cross-border situations
Maintenance after a divorce with an international element is common in the Netherlands, and the rules on jurisdiction, applicable law and enforcement are European rather than purely Dutch.
Within the European Union, the Maintenance Regulation determines which court may hear a maintenance claim, and the usual options are the courts of the habitual residence of the defendant or of the creditor. That means a former spouse who has moved abroad may be able to bring a variation application there, and a Dutch payer may find the reassessment taking place in another member state.
Which law applies is a separate question, governed for most member states by the 2007 Hague Protocol, whose main rule points to the law of the state where the creditor has their habitual residence. A move abroad can therefore change the law under which the obligation is assessed, and the answer under that law may differ from the Dutch one on duration, on the effect of cohabitation and on how earning capacity is treated.
Enforcement is the part that works well. A Dutch maintenance decision is enforceable in other member states without lengthy intermediate procedures, and the National Maintenance Collection Agency acts as the Dutch central authority for cross-border cases, cooperating with its counterparts abroad. The practical conclusion for a payer considering a move, or for a recipient whose former spouse has already moved, is that distance is not an obstacle to enforcement, and that the choice of forum can matter more than the choice of argument.
Ending the obligation by agreement
Where both sides want certainty rather than another round of recalculation, spousal maintenance can be bought off in a single sum (afkoop). The parties agree a capitalised amount, the obligation ends, and neither can return to it. That finality is the attraction and the risk: a buy-out cannot be reopened if the payer’s income later rises or the recipient’s circumstances worsen, and it is normally combined with an explicit non-modification clause to make the position airtight.
Three points deserve attention before signing. The capitalisation has to be calculated properly, taking account of the remaining statutory term and of the tax treatment on both sides, which differs from that of periodic payments; take specialist tax advice on the figure. The agreement should state plainly that the obligation ends and that neither party may apply for maintenance in the future. And where the payment is made in instalments, the security for those instalments has to be arranged, because the obligation being bought off no longer exists to fall back on.
A buy-out is usually attractive where the payer has capital but volatile income, or where both parties want to end the financial link after a difficult divorce. It is rarely right where the payer would have to borrow to fund it, or where the remaining term is long and the recipient’s position is uncertain.
Mistakes that weaken an otherwise good case
Four errors recur. The first is unilateral reduction: deciding what is affordable and paying that. It creates enforceable arrears, it invites collection through the LBIO, and it removes the goodwill that a negotiated solution needs. The second is delay. Because the effective date is usually tied to the application, every month of waiting is a month paid at the old level, and a long delay also undermines the argument that the change was serious.
The third is arguing about the relationship rather than the figures. Reassessment is a financial exercise, and a petition that reads as a grievance rather than a recalculation makes the court’s job harder and the applicant less credible. The fourth is incomplete disclosure of one’s own position. A payer who claims reduced capacity while withholding information about a second income, a partner’s contribution to the household or the profits of a company is likely to have capacity assessed against them rather than for them.
Common questions
How soon after the divorce can I ask for a change?
There is no waiting period. What matters is the change, not the calendar. If a qualifying change occurs two months after the decree, an application can be made then. What does matter is not letting time pass after the change, because the effective date is normally linked to the application and delay weakens the argument that the change was significant.
What if I do not know what my former spouse earns?
You cannot compel disclosure yourself, but the court can. Once proceedings are on foot, the court can order the other party to produce payslips, annual income statements, tax returns and business accounts, and it can attach consequences to a refusal. In practice an unexplained refusal to open the books is one of the more damaging things a party can do in a maintenance case.
Can I reduce my payments by changing career?
Not by choice alone. Where income is reduced voluntarily, the court is likely to calculate on the earning capacity that was given up rather than on the new income. The position is different where the change was necessary, for example on medical grounds or because the previous work was no longer available, and the burden of proving that necessity lies on the person who made the change.
Does remarrying reduce what I pay?
Not automatically. A new partner and new children create obligations that are taken into account in the calculation, but the existing obligation does not disappear, and child maintenance takes priority over spousal maintenance where capacity is short. A reassessment may be justified where the new situation genuinely alters capacity, but it is not a consequence of remarriage as such.
Does child maintenance follow the same rules?
The variation mechanism in article 1:401 of the Dutch Civil Code applies to child maintenance as well, and the same statutory indexation applies. The differences are that the parental maintenance obligation runs until the child turns twenty-one, that child maintenance takes priority over spousal maintenance, and that cohabitation by the other parent does not end it. Our note on when you need an alimony recalculation deals with the practical side of both.
What to do next
Establish three things before anything else: the date the divorce petition was filed, because it determines which duration regime applies; whether the settlement contains a non-modification clause; and what the current figure is after indexation. Then produce the recalculation on today’s figures. If the difference is material, put it to the other side in writing. If it is not, you have saved yourself a case you would have lost.
Law and More advises payers and recipients on the reassessment of spousal and child maintenance: recalculating need and capacity, negotiating a variation, breaking or defending a non-modification clause, dealing with indexation and arrears, and conducting proceedings before the district court. You can read more on our family law practice page and in our guide to Dutch family law. Contact us if your circumstances have changed and the current arrangement no longer fits them.
