NETHERLANDS Law and Practice Contributed by: Sandra Verburgt, Petra Beishuizen and Ivo Janssens, Delissen Martens Advocaten
2.4 Spousal Maintenance Under Dutch law, spousal maintenance is a separate provision from asset division. The con - cept of spousal maintenance is codified in the law; therefore, most prenuptial or postnuptial agreements will not contain a clause on spousal support. However, this does not mean that the parties can exclude maintenance obligations after divorce. On the contrary, under Dutch law, prenuptial contracts in which maintenance due according to the law is renounced are null and void. As long as the parties are married, they have a financial obligation to support each other if there is a need for support. Interim spousal support is therefore granted if the needs for support are established and the other spouse has financial capacity to do so. Calculation of Spousal Maintenance Obligations According to Dutch maintenance law, spouses’ obligation to contribute to each other’s living costs depends on two factors – namely, “needs” and “capacity”. Needs are based on the level of income and wealth the spouses had during the final years of the marriage. Since 1 January 2023, the calculation of the needs and capacity for spousal support is to a large extent formula- The need for spousal maintenance can be deter - mined using either a schedule of expenditures or the so-called 60% method. The starting point for the calculations is the net family income avail - able during the marriage. Expenses for the chil - dren are deducted from this, which results in an amount remaining that is available to both part - ners. As the costs of living for a single person (parent) are higher than that for spouses living based. Needs
contribution of assets to the trust. Since 2010, the Netherlands has made an arrangement in the form of the Dutch Separate Private Funds ( Afg- ezonderd Particulier Vermogen , or APV) scheme for the taxation of – among other things – trusts. Offshore trusts In general, Dutch courts will deal with the mat - rimonial property regime as a whole, including foreign assets (if these are part of the matri - monial regime). However, when it comes to the enforcement of such orders, exequaturs must be obtained in the jurisdiction where such order is to be enforced. A Dutch court is not likely to consider an undefined claim in a trust in pro - ceedings regarding the settlement of matrimo - nial property regimes because at the time of the divorce: • it is not a given that the beneficiary will actu - ally receive anything; and • the amount of the claim is not fixed (were the beneficiary to receive anything). If the claim itself is not awarded, it is unlikely that a Dutch court would want to make an order in respect of a property held in an offshore trust. A Dutch court will only make an award if the claim is defined at the reference date (ie, date of the divorce petition). One exception would be where foreign matrimonial law applies to the settlement of the matrimonial property regime and, under that foreign law, property held in a trust will be considered in the settlement of the matrimonial property regime. In that case, a Dutch court might be willing to make an order applying the foreign law. However, even then an exequatur must be obtained in the jurisdiction where such orders are to be enforced.
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