Divorce Archives - Legal Expat Desk

May you waive spousal support?

4 August 2023

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.

The main rule is the ‘first shot rule’

27 January 2023

If you and/ or your partner want a divorce, and your circumstances are international, you should ensure that you are aware of your options. Did you know that it is possible for courts in two different countries to have jurisdiction? And did you know that they can both pronounce the divorce? For instance, if you are both Dutch nationals and you live abroad. Or if one or both of you live in the Netherlands and one or both of you is not a Dutch national. The main rule here is the first shot rule. In other words, the court of the country in which divorce proceedings are first initiated is authorised to pronounce the divorce. This rule was confirmed in a 24 May 2022, ruling by the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2022:1542).

Two divorce proceedings in two different countries

In the above case, the spouses were married in India. The wife has Dutch and Pakistani nationality and lives in the Netherlands. The husband has Indian nationality and lives in India. The husband initiated divorce proceedings in India on 5 May 2015. Divorce has not been pronounced in India as yet. The wife filed for divorce in the Netherlands on 10 August 2020.

The main rule is the ‘first shot rule’

If divorce proceedings have been initiated in two different countries, the principle of lis pendens applies in the Netherlands. This means that a decision on the same issue cannot be made by a court in two different countries. Does a situation arise where proceedings on the same subject – in this case, divorce – are pending in two different countries? Then the rule is that if the proceedings were brought last in the Netherlands, the Dutch court must stay the case until it is decided by the other court. Once the foreign court has rendered a judgement and this judgement is recognised in the Netherlands and can be enforced, the Dutch court declines jurisdiction.

Exception to the rule

The principle of lis pendens was invoked in the Amsterdam Court of Appeal decision mentioned above. In this case, the ‘first’ petition for divorce had been filed by the husband in India seven years ago. It was unknown when a final decision would be made in those proceedings. Let alone whether this would be in the foreseeable future. The husband was in a position to further delay the proceedings in India. Given this, the wife had a compelling interest in continuing the divorce proceedings in the Netherlands. As there were no further reasons why the decision in India should be awaited, the court — in derogation of the principle of lis pendens — did not stay the decision on the divorce pending a judgment in India. Despite the fact that the proceedings in India were initiated earlier, it upheld the judgement of the court granting the divorce.

In conclusion

It is very important in an international situation to check whether courts in multiple countries have jurisdiction over the divorce. This applies irrespective of the exception made by the Amsterdam Court of Appeal to the ‘first shot rule’. This particularly relevant if you prefer to have the divorce proceedings take place in one of the two countries and you are concerned that your partner may have a preference for another country. In that case, it may be wise to start the proceedings in your preferred country on short notice, to avoid the decision being made in the other country.

More information

If you and/ or your partner want to get a divorce, you will need the assistance of a lawyer. You should make sure you are well informed by a lawyer. If you need assistance with your divorce,please do not hesitate to contact me.

Spousal alimony in divorce proceedings in the Netherlands

13 January 2023

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.

Divorce and exclusion clauses under Dutch law: inheritances

16 December 2022

There is no global consensus as how to best divide the assets of divorcing couples. Thus, there are sharp differences between the divorce laws across countries. Expats in the Netherlands are often in for a big surprise when they discover they have to share their inheritances with their (former) spouse. Read this article to learn about divorce and exclusion clauses under Dutch law.

Tag Archive for: Divorce

Dutch agreement

Foreign agreement

To conclude

More information

Two divorce proceedings in two different countries

The main rule is the ‘first shot rule’

Exception to the rule

In conclusion

More information

Applicable law

Spousal alimony

Waiving the right of spousal alimony

To conclude

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