Proof of cohabitation and the duty to pay maintenance: it remains difficult!
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 maintenance (alimony). Anyone can imagine that this frustration is hard to swallow.
The duty to pay 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.
Legally, however, having an emotional relationship and living together, or being together often, is not really important. A recent ruling of the Court of Appeal Arnhem-Leewarden of February 2016, makes this clear once again. What is 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 recent case, the ex-wife’s new boyfriend also had separate accommodation. Once again the court 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.
This is a frustrating ruling for the ex-husband. All the more so if you realise that the ex-wife does actually live with the new partner but is aware of the requirements in case law.
Please do not hesitate to contact us with any questions.
Update article: December 2017.
Susan studied Law at the Erasmus University Rotterdam. She has worked as a lawyer since 1986 and gained an immense amount of experience in dealing with the full range of matrimonial and separation issues in international divorces. Susan joined GMW lawyers in 2011 and is a member of the Family Mediators Association.
Susan is an expert in contested financial disputes both in and outside court. One of her key strengths is the ability to empower her clients so they can understand and take control of the process, and forward constructively, especially for the children’s sake. She further specialises in strongly contested residence, contact disputes and is experienced in dealing with the legal aspects of child abduction.
Susan frequently acts for parents whose children have been taken abroad illegally and assists in obtaining their return.