Proof of cohabitation and the duty to pay maintenance: it remains difficult!
The duty to pay spousal maintenance ends when the ex-partner (having been married) lives together with another person as if they are married. Nearly everybody envisions an emotional relationship where the ex lives with another person who he/she has an emotional relationship with.
It remains a frustrating situation when you are almost positive that your ex-partner is cohabiting but cannot actually prove it. Then you must continue to pay alimony. Anyone can imagine that this frustration is hard to swallow.
Ruling
Legally, however, having an emotional relationship and living together, or being together often, is not really important. I will try to clarify this by giving an example, based on caselaw of the Court of Appeal Arnhem-Leeuwarden. What was the issue in the specific case?
The ex-wife is in an emotional relationship. The ex-husband believes that his ex-wife is living together with her partner. Therefore, he argues, his duty to pay maintenance has ended. To support his argument and to prove that the ex-wife is cohabiting, the ex-husband had an investigation bureau prepare a report based on their observations of the cohabitation. In other words, they set up a report based on the fact that the ex-wife and her new boyfriend are in an emotional relationship and often spend the night together. A report on cohabitation can be helpful but is definitely not a simple solution and certainly not cheap.
In this case, the ex-wife’s new boyfriend had a separate accommodation. Once again the Court of Appeal made it very clear that for cohabitation (as referred to in section 1:160 Dutch Civil Code) to exist, the court needs to establish that there exists mutual care and a shared household on a long-term basis. The partners must therefore provide in each other’s care. This is very hard to prove and the fact that the new partners spend the night together, go shopping together or go on holiday together is not proof. The request of the ex-husband to end maintenance payments was rejected as it was not proven that there was a contribution to the costs of running a joint household.
Conclusion
This might be a frustrating ruling for the ex-husband, but this clarifies the strict threshold that the ‘cohabitation-condition’ entails.
More information
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