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Last update: 06-08-2007
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Maintenance claims - Netherlands

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TABLE OF CONTENTS

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of the Netherlands? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of the Netherlands applicable? 3.
4. If this law is not applicable, which law will the courts of the Netherlands apply? 4.
5. Should the maintenance creditor apply to a specific organisation, a government department (central or local) or a court to obtain maintenance? 5.
5.A. How do I apply for maintenance from this organisation or government department (central or local) and what procedures apply? 5.A.
6. Can a request be made on behalf of a relative, a close relation or a minor child? 6.
7. If the applicant plans to bring the case to court, how does he/she know which court has jurisdiction? 7.
8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures? 8.
9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure? 9.
10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of changes in the costs of living or family circumstances? 10.
11. How and to whom will the maintenance be paid? 11.
12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him or her to pay? 12.
13. Is there an organisation or government department (central or local) which can help me to recover the maintenance? 13.
14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? 14.
15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in the Netherlands? 15.
16. If so, how can that organisation or government department (central or local) be contacted? 16.
17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 17.
18. Can the petitioner address a request directly to an organisation or government department (central or local) in the Netherlands? 18.

 

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of the Netherlands?

Maintenance is an obligation to contribute to the cost of living of the maintenance creditor. The obligation to pay maintenance arises from blood relationships and affinity, and a (previous) marital bond. Comparable stipulations apply for registered partnerships.

Which persons have to pay a maintenance allowance to another person:
- parents to their children?

All parents are obliged to maintain their children. This applies during the adulthood of the children as well as during their childhood. The maintenance obligation exists for children up to the age of 21 years, regardless of their level of need.

See question 2 for information on the obligation of parents towards their children.

- children to their parents?

Children are obliged to maintain their parents.

The maintenance obligation only exists if the parents are in need.

- a divorced spouse to the other spouse (ex-registered partners)

The maintenance obligation that exists between spouses during marriage continues after the dissolution of the marriage. The court may, during the divorce judgement or during a later judgement, grant a maintenance allowance at the expense of one ex-spouse to the ex-spouse who does not have sufficient income to support his or her living costs (and is not, as far as can reasonably be expected, able to acquire it) at the latter’s request. In establishing this maintenance allowance, the judge takes into account the needs of the one ex-spouse and the means (financial resources) of the other ex-spouse. Non-financial factors may also play a role, such as the duration of the marriage or the duration of cohabitation. If the court does not specify a time limit for the maintenance obligation the maintenance obligation terminates after 12 years. An extension to this period may be granted by the court at the request of the ex-spouse requiring maintenance in cases where the latter is in particular financial difficulty. Following a short (not longer than 5 years), childless marriage, the duration of the maintenance obligation is, in principle, not longer than the duration of the marriage itself.

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The above also applies with regard to maintenance between ex-registered partners.

The ex-spouses may come to agreements as regards maintenance between themselves out of court. These are usually laid down in the divorce covenant. In practice, this covenant will be confirmed by the court during the divorce judgement. Confirmation of this kind gives the maintenance creditor more legal certainty.

Other?
Spouses/registered partners

Spouses and registered partners must both, except in exceptional circumstances, contribute to household expenses. They may make other agreements in this regard in prenuptial or partnership agreements.

Natural father/partner in life of the mother

There is an obligation on the part of the child’s natural father to provide maintenance for the child fathered (not acknowledged) by him, as long as the child does not have a legal family relationship with this man or any another man (in other words, as long as there is no legal father).

The same obligation applies for the partner in life of mothers who consented to an act which could have resulted in the procreation of the child.

Joint custody

The non-parent having custody of a child together with the parent has a maintenance obligation towards that child (article 1:253w BW). The maintenance obligation continues until the child’s twenty-first birthday when joint custody ends due to the child becoming of age.

In which cases?

Generally speaking, the obligation to pay maintenance only exists if the maintenance creditor is in need. A person is considered to be in need if he or she has insufficient income to provide for himself or herself and is not, as far as can reasonably be expected, able to acquire it himself or herself.

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An exception to this rule is in the case of maintenance obligations of parents and natural fathers towards their minor children and towards young adult children (up to 21 years old). In these cases, the maintenance obligation applies even if the creditors are not in need.

2. Up to what age can a child benefit from a maintenance allowance?

In the case of children below the age of 18 (minor children), the parents must pay the costs of care and upbringing. This concerns the cost of living and the other costs involved in bringing up the child, such as education and leisure activities. Parents are obliged to provide for the costs of care and upbringing according to their means. The obligation applies even if the child has its own means and/or income.

In the case of children of 18, 19 and 20 years old (the “young adultsâ€�), the parents are responsible for paying the costs of living and education. The costs of living and education are taken to mean the same as the costs of care and upbringing during childhood. This maintenance obligation is independent of the need of the maintenance creditor.

The extended maintenance obligation also exists for this category of children even if they have their own income from employment or their own funds, or if they are married. Any income from the child himself or herself does, however, determine the extent of their need for a maintenance allowance.

In the case of children of 21 years and over, the parents only have a maintenance obligation if the child is in need and is not able to care for himself or herself. For example, if a child is physically or mentally handicapped.

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3. In which cases is the law of the Netherlands applicable?

The applicable law concerning the establishment of a maintenance obligation is determined according to Dutch international private law on the basis of the reference rules of the Hague Maintenance Convention (applicable law) of 1973 (Trb. 1974, 86). For details on this convention, please refer to the website of the Hague Conference for International Private Law :

In accordance with this treaty, the Dutch court shall apply Dutch law;

  • if the maintenance debtor and the maintenance creditor both have Dutch nationality and the maintenance debtor has his or her habitual residence in the Netherlands;
  • if the maintenance creditor has his or her habitual residence in the Netherlands;
  • if the law of the country of habitual residence of the maintenance creditor outside of the Netherlands does not award him or her a maintenance allowance and the maintenance debtor and the maintenance creditor both have Dutch nationality;
  • if neither the law of the country of habitual residence of the maintenance creditor outside of the Netherlands nor the law of the non-Dutch nationality common to both the maintenance debtor and the maintenance creditor can award the maintenance creditor a maintenance allowance;
  • in the case of maintenance between ex-spouses, if Dutch law is applied to the divorce.

4. If this law is not applicable, which law will the courts of the Netherlands apply?

The Dutch court will in such an event, in principle, apply the foreign law of the habitual residence of the maintenance creditor. If that law does not provide for maintenance, then the Dutch court will apply the common national law of the maintenance creditor and the maintenance debtor.

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In the case of divorce, the law that is applied to the divorce is also applied to the maintenance obligation towards the ex-spouse.

5. Should the maintenance creditor apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

The sum that the maintenance debtor must pay can either be established by the parties themselves and laid down in an agreement or determined by a court ruling. In the context of divorce proceedings the court is often also requested to decide on the maintenance for the ex-spouse or child maintenance.

5.A. How do I apply for maintenance from this organisation or government department (central or local) and what procedures apply?

If the maintenance allowance has to be established by means of a court ruling, the following applies:

The legal proceedings to establish, change or terminate a maintenance allowance start with an application. This application is drawn up by a lawyer. This lawyer will represent the maintenance creditor at the court session. The name, first name, date of birth and address of the maintenance creditor as well as the name, first name, date of birth and address of the maintenance debtor must be stated in the application. It must also state why the maintenance needs to be established, changed or terminated. Upon submission of the application at the court registry, the documents that provide evidence of the information stated in the application are submitted as necessary. In maintenance cases, these documents include, in particular, documents concerning the financial situation, such as financial statements drawn up for tax purposes, payslips, calculations of needs and financial means. The lawyer sends the application to the court registry of the court which has jurisdiction. The court registry then (in principle) sends a copy of the application along with the relevant accompanying documents to the party concerned, i.e. the maintenance debtor in maintenance cases. The latter will then be called to the hearing in court.

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6. Can a request be made on behalf of a relative, a close relation or a minor child?

No: the application has to be submitted by the maintenance creditor’s lawyer. Maintenance creditors are not permitted to submit an application without a lawyer.

A minor child is represented by his or her legal representative (usually a parent).

7. If the applicant plans to bring the case to court, how does he/she know which court has jurisdiction?

A distinction is made here between international jurisdiction (does the Dutch court have jurisdiction?) and internal jurisdiction (which Dutch court has jurisdiction?).

As far as international jurisdiction of the Dutch court is concerned, in the context of the European Union the so-called “Brussels Iâ€� Regulation is applicable. This Regulation contains rules on the jurisdiction of the courts with regard to maintenance claims.

Pursuant to article 2 of the Regulation, a maintenance debtor (respondent) residing in the Netherlands is, in principle, summoned to appear before the Dutch court by the maintenance creditor (applicant).

The “ Brussels Iâ€� Regulation also contains an alternative rule in respect of maintenance obligations. Article 5, paragraph 2, specifies that a respondent residing within the territory of a member state may be summoned to appear, in another member state:

  • before the court of the place in which the person entitled to maintenance has his or her residence or habitual residence,
  • or, if it is an additional requirement relating to a claim concerning the family law status of persons i.e. the divorce court judge or, for example, the judge who decides on affiliation, before the court that has jurisdiction over this, except in the event that this jurisdiction is only based on the nationality of one of the parties.

Sub a means that a maintenance creditor residing in the Netherlands may summons a maintenance debtor residing in France, for example, to appear before the Dutch court, which has international jurisdiction pursuant to article 5 paragraph 2. The court of the place of residence of the applicant has jurisdiction.

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As far as international jurisdiction of the Dutch court outside the context of the European Union is concerned, the following is applicable. If the respondent (be it the creditor or the debtor) lives outside the European Union, then the aforementioned “ Brussels Iâ€� Regulation is not applicable and the Dutch court derives its jurisdiction from the Code of Civil Procedure. The Dutch divorce court is then authorised to make provisional arrangements with respect to the divorce or ancillary provisions such as a maintenance allowance or continued occupation of the matrimonial home. The Dutch court also has jurisdiction to decide on an independent application for maintenance allowance if either the applicant or one or more of the parties concerned stated in the application live(s) in the Netherlands, or if the case is otherwise sufficiently related to the jurisdiction of the Netherlands, if they chose the Dutch court to have jurisdiction or if the party concerned appears in the course of the proceedings and does not put forward a plea of lack of jurisdiction.

As far as internal jurisdiction of the Dutch court is concerned, the rule as regards the type of court (law court, court of appeal, the Netherlands Supreme Court) is that the law court has jurisdiction in maintenance cases. Which law court has jurisdiction is determined by the Code of Civil Procedure. It is the law court of the place of residence of either the applicant (one of the applicants) or one of the parties concerned stated in the application that has jurisdiction, or in the absence of a place of residence of one of these parties, the court of the place of actual residence of one of them.

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8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures?

A request to establish, change or terminate a maintenance allowance must be submitted by a lawyer. The lawyer represents the applicant during the sitting. Names and addresses of lawyers can be found on the national law society ’s website .

There is also a “Society of Family lawyers and Divorce Mediatorsâ€�, the members of which specialise in divorce and maintenance amongst other things. They also specialise in divorce mediation and all that this entails.

Go to VFAS-Advocaten: this website is available in Dutch and English .

9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?

A contribution towards the costs involved in the administration of justice must be paid for court proceedings. This is the court registry fee. In addition to this, lawyer’s and bailiff’s fees will also be incurred.

If the litigant is unable to pay the (full) costs of a lawyer, he or she may, under certain circumstances, qualify for legal aid (see also the Legal Aid web page). This is known as a “legal aid caseâ€�. The government pays part of the costs and the litigant pays a “personal contributionâ€�. The extent of this “personal contributionâ€� depends on the income and financial means of the litigant. The Legal Aid Council grants legal aid. The litigant must submit an application for legal aid to the Council in the area of jurisdiction (=jurisdiction of a court of appeal) where the lawyer’s office is situated. In practice, the application is often made by the lawyer, if he or she has already been approached prior to the application for legal aid.

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Furthermore, a “Certificate of Indigenceâ€� (to be obtained from the municipal authority of the place of residence) must be submitted. This certificate must be sent with the application to the Legal Aid Council, which investigates whether the litigant is eligible for legal aid. If this is indeed the case, proof of entitlement to legal aid is issued. The court registry fee is also reduced in such cases.

Entitlement to legal aid also applies in the case of cross-border disputes i.e. if the applicant resides outside the Netherlands. This is provided for in the European Directive on Cross-border Legal Aid. Legal aid may be requested, with an appeal to articles 23A up to and including 23 K of the Legal Aid Act, via the Legal Aid Council in Den Haag by means of the model form accompanying this directive, which is identical for all member states.

If necessary, the Legal Aid Council can provide assistance with choosing a lawyer. The Council’s address is given in the response to question 16.

10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of changes in the costs of living or family circumstances?

In its decision, the court shall take into account the needs of the person requesting or receiving the maintenance allowance and the means (financial resources) of the person who is required to pay or is paying the maintenance allowance.

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Needs and means are relative concepts. The court has a certain degree of liberty to make a decision according to the circumstances of the individual case.

Directives have been developed by the judiciary, the so-called Trema standards (see: De Rechspraak). These are not however binding on the court.

The following incomes and expenditures are important in the court’s decision:

  • income from employment
  • income from ancillary employment
  • study grants
  • benefits
  • pension
  • income from (sub)letting
  • interest and other incomes from assets
  • contributions to the households of others with whom a joint household is run
  • existing possibilities to increase income (earning capacity)
  • statements of assets
  • rent payments
  • mortgage repayments and interest as well as fixed charges. The part of the mortgage that has not yet been paid off must also be stated here.
  • insurance policies
  • necessary regular travel costs
  • financial obligations towards others
  • costs of special medical care for the maintenance creditor and/or his or her family members
  • expenses related to production of income
  • any statements of debts
Statutory indexation

Each year, the Ministry of Justice fixes the percentage by which a maintenance contribution granted by the court or a contribution fixed by agreement is increased by operation of law. In the calculation of this percentage increase, the Ministry considers salary development in the business community and the government and the development of salaries in other sectors. This percentage is published in the Staatscourant [the Dutch Government Gazette].

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There are a number of exceptions to this automatic adjustment of maintenance allowances. The parties as well as the court may rule out the statutory indexation or establish an alternative method of indexation.

11. How and to whom will the maintenance be paid?

Maintenance for ex-spouses is paid directly to the maintenance creditor.

Maintenance payments fixed by the court for minor children are paid directly to the parent (or guardian) who is caring for the child.

12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him or her to pay?

If the maintenance obligation is determined by a court ruling and the maintenance debtor is in default of payment of partner maintenance, compliance can usually be enforced by a bailiff. If there is no court ruling, the case must be brought before the court. A lawyer must be called in for this. In the case of the collection of child maintenance payments, in a number of situations an appeal can be made to the National Bureau for the Collection of Maintenance Payments (LBIO) in Gouda. See question 13 below.

13. Is there an organisation or government department (central or local) which can help me to recover the maintenance?

In the case of child maintenance, the relevant organisation is the National Bureau for the Collection of Maintenance Payments (LBIO) in Gouda.

The LBIO can proceed to collection whether the maintenance debtor is in arrears or not. The LBIO must be authorised to do so by the maintenance creditor or the maintenance debtor. The LBIO may, if necessary, proceed to collection by means of levying execution. The LBIO may, for example, attach the salary, benefits or (im)movable property of the maintenance debtor.

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Calling in the services of the LBIO is not free of charge. In the event of payment arrears, the maintenance debtor must pay the costs of collection to the LBIO. The LBIO imposes a surcharge for collection. This surcharge is 10% of the amounts owed. The costs of the legal proceedings and execution are also recovered from the maintenance debtor.

The LBIO is only concerned with the collection of child maintenance. The LBIO does not deal with maintenance payments to ex-spouses (ex-registered partners). This is however not the case where the LBIO’s convention-related tasks are concerned (see the response to question 17).

The form “taking over the collection of child maintenanceâ€� can be downloaded from the LBIO ’s website .

This site contains a wealth of information on the task and procedures of the LBIO, consulting hours (by telephone) and other information.

14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place?

No

15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in the Netherlands?

Yes, in the case of child maintenance, see question 13

Yes, in the case of legal aid, see question 8

16. If so, how can that organisation or government department (central or local) be contacted?

In the case of child maintenance:

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Landelijk Bureau Inning Onderhoudsbijdragen (LBIO)

Postbus 800

2800 AV GOUDA

Telephone number: +31 182 572 020

Fax: +31182.537 179

In the case of legal aid:

de Raad voor de rechtsbijstand,

Postbus 450,

2501 CL Den Haag.

Telephone number: +31 703 701 414

17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

See the response to question 13.

The LBIO also has tasks in the field of the international collection of maintenance. These tasks arise from two conventions to which the Netherlands is party:

The Netherlands is party to the UN Convention on the recovery abroad of maintenance, New York 20 June 1956. This is a convention on mutual legal assistance, the aim of which is to facilitate the acquisition of maintenance in international cases. To this end, the convention has established a system of sending and receiving institutions, which assist the maintenance creditor in enforcing maintenance claims. The LBIO is the sending and receiving institution for the Netherlands.

Anyone who resides in the Netherlands and encounters problems with the collection of maintenance from a maintenance debtor residing abroad (i.e. in a country that is party to the New York Convention) can call upon the New York Convention. The convention relates to child maintenance as well as partner maintenance.

The LBIO also collects maintenance at the request of maintenance creditors residing abroad (i.e. in a country that is party to the New York Convention) from maintenance debtors residing in the Netherlands. If a maintenance creditor who is located in another member state wishes to claim maintenance from a maintenance debtor residing in the Netherlands, he or she can invoke the system of this convention. He or she must then apply to the receiving institution in the Netherlands (the LBIO). The receiving institution then takes the necessary measures to obtain the maintenance.

In order to engage the services of the LBIO, the application form “collection of maintenance abroad" must be submitted. This form can be downloaded from the LBIO’s website .

For information on legal aid, see the response to question 9.

18. Can the petitioner address a request directly to an organisation or government department (central or local) in the Netherlands?

See questions 13 and 17

« Maintenance claims - General information | Netherlands - General information »

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Last update: 06-08-2007

 
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