Tag Archive for: spousal alimony

May you waive spousal support?

Can you agree to waive spousal maintenance before marriage?

In my practice as a divorce lawyer, I frequently deal with international divorces. Part of a divorce may include the subject of spousal maintenance: upon divorce, one of the spouses may be entitled to maintenance payments.

In this blog, I discuss whether an agreement entered into before or during the marriage stipulating that spousal support may not be requested in the event of divorce, is legally valid. So, may you waive spousal support?

Dutch agreement

In the Netherlands, it is possible to go to a notary before or during a marriage and draw up prenuptial agreements. Agreements in a prenuptial agreement can be made about the financial consequences of a divorce. In the Netherlands, however, it is not possible to agree in a prenuptial agreement that partner maintenance cannot be asked for in case of divorce. This was recently confirmed by the Supreme Court (ECLI:NL:HR:2022:1724). The Supreme Court ruled that – despite the existing freedom of contract – it is not possible to agree on a nil clause before marriage. Such a nil clause violates Article 1:400 paragraph 2 of the Dutch Civil Code. This article stipulates that a contract may not waive maintenance due under the law.

The foregoing also has a social implication. The stage of life in which prenuptial agreements are made is often a different one from that in which the divorce takes place. At the start of the marriage, it is often impossible to foresee what choices will be made and also what health will look like. This is only possible at the time of divorce.

In short, in the Netherlands it is not possible to waive spousal maintenance by agreement.

Foreign agreement

If you have drawn up an agreement abroad, however, in some cases it may be possible to exclude spousal support in case of divorce. To do so, however, several requirements must be met.

An agreement with a nil partner maintenance clause is only legally valid in the Netherlands if a foreign law is designated as applicable law in the agreement. Moreover, you cannot designate every law as applicable. In accordance with Article 8 of the 2007 Hague Alimony Protocol, there must be a connection with the law designated as applicable law. In addition, the designated applicable law – unlike Dutch law – must have the possibility to agree on a nil clause before the marriage. Furthermore, Article 8 mentioned above requires that both parties have full knowledge and awareness of the consequences of their choice at the time of concluding the agreement. In addition, application of the designated law must not lead to manifestly unfair or unreasonable consequences for one of the parties.

In short, in some cases, an agreement entered into abroad may well result in no spousal support upon divorce in the Netherlands. However, this requires several requirements to be met. Thus, because of these requirements, when divorce is imminent, you cannot designate an arbitrary law because it has a nil clause.

To conclude

May you waive spousal support? In principle, it is not possible to agree by an agreement that no spousal support can be requested in case of divorce. In international situation and if various requirements are required, an agreement with a nil clause for partner alimony may still be legally valid in the Netherlands.

More information

Do you have a legal question or need more information? If so, please contact us directly.

Spousal alimony in divorce proceedings in the Netherlands

Are you married and you are heading for divorce (or dissolution of registered partnership)? Then you may need to pay your spouse spousal alimony. However, when it comes to international divorces (a divorce with an international element for example by different nationalities or when you live abroad), it is not uncommon that foreign law will apply. If foreign law applies, you have to ask for advice from a lawyer abroad. Today we will discuss spousal alimony in divorce proceedings in the Netherlands.

Applicable law

When the divorce proceeding takes places in the Netherlands, the Dutch court does not automatically apply Dutch law to spousal alimony requests. What law applies depends on your personal circumstances. However, in general (from a Dutch perspective on the international private law) the main rule is that the law applies of the country where the alimony creditor has their habitual residence. There are exceptions to this rule.

Do you and your spouse both live in the Netherlands? Then it is likely that Dutch law applies to your alimony request. Whether your spouse is eligible for spousal support depends on the financial situation of you and your spouse.

Spousal alimony

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 also after the divorce. This means that when your spouse could fulfil her own needs and can live in a reasonably suitable position also after the divorce, he or she might not be eligible to spousal alimony. To find out, you need to do a calculation, mainly based on your income.

Spousal alimony is calculated on the basis of, (1) the need of the maintenance creditor (the person claiming alimony), (2) what is the alimony creditor earning and does the alimony use their earning capacity and (3) the ability to pay of the maintenance debtor (the person who should pay alimony). 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.  You also need to lay this arrangement down in a (divorce)agreement.

Can you exclude the right to spousal alimony in case of divorce by prenuptial agreement? The answer is no. The Supreme Court ruled in November 2022 (and 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 it’s best to use his/her earning capacity. If there is a large asset, the alimony creditor may have to intervene to fulfil his/her own needs. This depends on your personal circumstances.

To conclude

Are you wondering how much spousal alimony you have to pay to your spouse in the event of a divorce? Or would like to have more guidance? At GMW lawyers we specialise in advising and calculating both spousal- as child alimony. Please contact us if you have any legal questions. We are happy to help.