When you do not have to pay alimony in the Netherlands

You do not have to pay alimony where no maintenance obligation ever arose, or where an existing obligation has ended by operation of law or by court order. Under Dutch law spousal maintenance is owed only after a marriage or a registered partnership, never after unmarried cohabitation without an agreement to that effect, and it ends when the statutory period expires, when the recipient remarries or cohabits with another as if married under article 1:160 of the Civil Code (BW), or on the death of either former partner. Child maintenance follows entirely different rules and cannot be waived.

This article deals only with the grounds on which a maintenance obligation is absent or comes to an end. How maintenance is calculated, how long it normally runs and how the amount is set out is covered in our complete guide to child and spousal support in the Netherlands. Read that first if your question is how much; read this one if your question is whether anything is owed at all.

When no maintenance obligation exists in the first place

There is a difference between an obligation that never existed and one that has ended, and it decides which procedure you need. If no obligation ever arose, there is nothing to terminate and nothing to pay. If one arose and has ended, you may still need a decision or an agreement to establish that, because a maintenance order continues to be enforceable until it is set aside.

Spousal maintenance under Dutch law presupposes a marriage or a registered partnership. Partners who lived together without either, however long, owe each other nothing after separation. The only exception is a maintenance clause in a cohabitation agreement, which binds as a contract but is not spousal maintenance in the statutory sense, so the statutory rules on duration and on cohabitation with a new partner do not apply to it unless the agreement says so.

Nor does an obligation arise merely because one former spouse earns more than the other. Two cumulative conditions must be met: the person claiming maintenance must lack sufficient income to support themselves and cannot reasonably be expected to acquire it, and the other must have the capacity to pay. If either fails, no maintenance is owed. A payer whose income has fallen so far that paying maintenance would leave them below the minimum the court calculates as necessary living costs has, in the language of Dutch practice, no draagkracht, and maintenance is set at nil.

Former spouses may also agree that no spousal maintenance will be paid at all. Article 1:158 BW allows such an agreement to be made before or at the time of the divorce, and it is commonly recorded in the divorce covenant. That waiver is valid, and it can be reinforced with a non-modification clause, which a court will set aside only where a change of circumstances is so radical that holding the parties to it would be unacceptable by standards of reasonableness and fairness. This is a deliberately high threshold, and it is the reason a maintenance waiver is worth negotiating carefully rather than accepting as boilerplate.

Child maintenance is the exception to almost all of this. Parents cannot validly waive it, because it exists in the interest of the child rather than of the parents, and an agreement between the parents that no child maintenance will be paid does not bind the child and can be set aside by the court. Assumptions about who owes it are also frequently wrong, and that is the subject of a separate section below.

The grounds on which spousal maintenance ends

Once spousal maintenance has been agreed or ordered, Dutch law provides a limited set of grounds on which it ends. Four of them operate by law and one requires a decision.

The first is expiry of the statutory period. The second is the death of either former partner: the obligation is personal and does not pass to the estate of the person who owed it, nor does it continue for the benefit of the heirs of the person entitled to it. The third is remarriage of the recipient, or their entry into a new registered partnership. The fourth is cohabitation by the recipient with another person as if they were married, which is dealt with in detail below. The fifth ground is not automatic at all: a change of circumstances that makes the existing order no longer meet the statutory standards, which requires an application to the court.

Two beliefs that circulate widely are wrong and cost people money. Spousal maintenance does not end automatically when the recipient reaches state pension age; the pension may well change the calculation and justify an application to reduce or end the maintenance, but nothing happens by itself. And spousal maintenance does not end because the recipient has found work: an improvement in income is a ground to ask the court to change the order, not a licence to stop paying.

Cohabiting with another as if married: article 1:160 BW

Article 1:160 BW is the most frequently invoked and the most frequently misunderstood ground. It provides that the maintenance obligation ends once the recipient remarries, enters into a registered partnership, or begins to live with another person as if they were married. The consequence is drastic and permanent: the obligation ends by operation of law and does not revive if the new relationship subsequently breaks down.

Precisely because the consequence is so far-reaching, the Supreme Court applies the provision restrictively, and the requirements are cumulative. There must be an affective relationship of some duration; the couple must actually live together; they must run a joint household; and there must be mutual care, meaning that they contribute to each other in kind or financially. A relationship in which the partners keep their own homes, or in which one simply stays over regularly, does not meet the test. Nor does a cohabitation agreement between the recipient and a new partner automatically settle the matter, although it is powerful evidence.

The burden of proof lies squarely on the person who wants to stop paying, and it is a demanding one. Registration at the same address in the municipal records is a starting point, not proof; a recipient who has deliberately kept a separate registration can still fall within the article, and one who is registered together can still fall outside it. In practice the evidence is built from bank statements, joint purchases, social media, statements from neighbours and, where proportionate and lawful, observation. Article 1:160 BW does not apply to child maintenance: a new relationship of the receiving parent has no effect on the obligation towards the child.

How long spousal maintenance runs since 1 January 2020

The Spousal Maintenance Reform Act (Wet herziening partneralimentatie) applies to divorce petitions filed on or after 1 January 2020. Under it, spousal maintenance runs for half the duration of the marriage, with a maximum of five years. Before that date the standard maximum was twelve years, and cases governed by the old law keep that regime.

Three exceptions extend the period, and they matter more often than the headline rule. Where the marriage produced children who have not yet reached the age of twelve, maintenance runs until the youngest child turns twelve. Where the marriage lasted at least fifteen years and the recipient will reach state pension age within ten years, maintenance runs until that age is reached. And where the recipient was born on or before 1 January 1970 and the marriage lasted at least fifteen years, but state pension age is further away, the period is ten years. Where more than one exception applies, the longest period prevails.

There is also a hardship provision. On the application of the recipient, the court may extend the period where ending maintenance would be so far-reaching that it cannot reasonably be demanded of them. Such an application must be made before the period expires, which is a deadline the recipient rather than the payer needs to watch, and an extension granted on this basis can itself be limited in time.

Finally, the parties can depart from the statutory period by agreement, in either direction. A divorce covenant may provide for a shorter term, a longer term or none at all, and where it does, the covenant rather than the statute governs. Checking what your own covenant says is the first step in any question about duration, and it is the step most often skipped. Our article on when a maintenance obligation ends sets out the timing rules in more detail.

When child maintenance is not owed

Child maintenance ends in far fewer situations than payers hope, and the group of people who owe it is wider than most expect.

Start with who owes it. Legal parents owe maintenance to their children, but so does the biological father who begot the child even if he has never acknowledged it, and so does the partner who consented to an act that resulted in the conception of the child. A stepparent owes maintenance to the children of their spouse or registered partner who belong to their family during that marriage or partnership, alongside the legal parents. The conclusion that no maintenance is owed because there is no legal parenthood is therefore frequently wrong, and it is worth having examined before it is acted on.

Now the duration. Until the child turns eighteen, both parents contribute in proportion to their means. Between eighteen and twenty-one the obligation continues under article 1:395a BW, and this is the point most often misstated: it applies whether or not the young adult is studying, and the young adult does not have to demonstrate need in the ordinary sense. A job on the side reduces the amount but does not by itself extinguish the obligation. From the age of twenty-one, maintenance is owed only where the child is genuinely unable to provide for themselves, for instance because of a disability.

There are three real grounds on which child maintenance ends or is reduced to nil. The child becomes financially independent, which for a young adult between eighteen and twenty-one means an income that actually covers their own living costs. The paying parent loses the capacity to pay, in which case the court can set the contribution at nil, although a parent is expected to make serious efforts to earn and a self-inflicted reduction of income will not be accepted. Or the child or the parent dies. Note that from the age of eighteen the young adult is the creditor: maintenance is then payable to them and not to the other parent, and any application to change it must be brought against them.

Changing or terminating an existing maintenance order

An order or a registered agreement remains enforceable until it is changed. That is the practical heart of the matter: even where a ground for termination clearly exists, the recipient can continue to enforce through a bailiff or through the National Maintenance Collection Agency (LBIO) until the position is regularised, and arrears accrue in the meantime along with the statutory annual indexation.

Article 1:401 BW provides two routes. Maintenance can be changed or withdrawn where it no longer meets the statutory standards because of a change of circumstances, for example loss of employment, a new maintenance obligation towards a new family, long-term illness or a substantial increase in the recipient’s income. It can also be changed where the original decision was based from the outset on incorrect or incomplete information, which is the route to take where income was concealed at the time.

The procedure is a petition to the district court, in which both parties must be represented by a lawyer. The court can give the change retroactive effect, but it exercises restraint where the recipient has already spent the money, so waiting rarely improves the outcome. Where the parties can agree, a settlement recorded in a new agreement and, preferably, confirmed by the court in a consent order is faster and cheaper than a contested hearing; mediation is often the sensible first step.

One point of nuance is worth stating precisely. Where article 1:160 BW applies, the obligation has ended by operation of law and no court decision creates that effect; payments made after that moment were not owed and can in principle be reclaimed as an undue payment, although courts apply restraint here as well. That does not make unilateral stopping wise. The payer carries the burden of proving the cohabitation, and if the proof falls short the arrears, the enforcement costs and the interest all fall on the payer. The correct sequence is to gather the evidence, put the position to the other side in writing, and apply to the court for a declaration if it is disputed.

Overview: when maintenance is not owed

Mistakes that cost money

The most expensive mistake is stopping payment without establishing the ground. An order stays enforceable, the LBIO collects arrears including a surcharge, and a wage attachment reaches your employer. Where you are convinced a ground exists, say so in writing, stop only on advice, and start the procedure at once rather than waiting to see whether anything happens.

The second is delay. An application to change maintenance is normally given effect from the date it is filed at the earliest, and courts are reluctant to order repayment of maintenance already spent. Every month between the change of circumstances and the filing of the petition is a month you are unlikely to recover.

The third is confusing the two kinds of maintenance. The statutory period, the waiver of article 1:158 BW and the termination of article 1:160 BW all concern spousal maintenance only. None of them touches the obligation towards a child, and an argument that mixes the two rarely survives the first hearing.

The fourth is forgetting indexation. Maintenance amounts are adjusted by law on 1 January each year by a percentage set by the Minister. A payer who has been paying the same figure for years is building up arrears without knowing it, and those arrears remain due even where the obligation later ends.

Frequently asked questions

What if my former partner does not agree that maintenance should stop?
Their consent is not required. If a statutory ground applies, you can ask the court to establish that the obligation has ended or to change the order, and the court decides. Objection by the other side does not block the application; it means the matter is contested and the evidence has to be produced.

Can I reclaim maintenance I have paid without owing it?
Sometimes. Where the obligation had already ended by operation of law, for instance under article 1:160 BW, payments made afterwards were not owed and can in principle be reclaimed. Where the change comes from a court decision, the court decides on retroactive effect and applies restraint if the money has been consumed. Acting quickly is what protects the position.

Does the five-year rule apply to child maintenance?
No. The statutory duration introduced on 1 January 2020 concerns spousal maintenance only. Child maintenance runs until the child turns eighteen and then continues until twenty-one under article 1:395a BW, whether or not the young adult is studying.

What does a procedure cost, and what if I cannot afford it?
Costs consist of the lawyer’s fee and the court fee, which is set by statute and depends on the type of case. Subsidised legal aid is available to individuals whose income and assets fall below the thresholds set annually by the Legal Aid Board, in which case you pay a personal contribution. A lawyer can tell you at the intake whether you are likely to qualify.

My former partner has moved in with someone. Is that enough?
Not on its own. Article 1:160 BW requires an affective relationship of some duration, actual cohabitation, a joint household and mutual care, and all four must be proven by the person who wants to stop paying. Remarriage or a new registered partnership is far simpler to prove, because it is a matter of public record.

Can we agree a longer or shorter period than the statute provides?
Yes, for spousal maintenance. A divorce covenant can set a different duration, exclude maintenance altogether, or add a non-modification clause. Child maintenance cannot be waived by agreement between the parents, because the entitlement belongs to the child.

What to do next

Begin with the documents rather than with the law. The divorce covenant and the court order determine what was agreed about duration, indexation and modification, and they frequently contain a clause that decides the question outright. Then establish which ground you are relying on and what evidence supports it, and record the date on which the circumstances changed, because that date drives the retroactive effect.

Law and More advises both payers and recipients on maintenance obligations under Dutch law, on the application of article 1:160 BW, on the duration rules and on applications to change or end a maintenance order. If you want to know whether you still owe maintenance, or whether an order can be changed, please contact our family law team so that your file can be assessed before the arrears accumulate.