GMW: Proof of cohabitation – it remains difficult!
2016-06-20 | By Susan Meijler - GMW
First published in ACCESS Summer 2016 e-zine
It remains a frustrating situation when you are almost positive that your ex-partner is cohabiting but you cannot actually prove it, and so you must continue to make maintenance payments (partner alimony). Anyone can imagine that this frustration is hard to swallow.
Section 1:160 of the Dutch Civil Code determines that the duty to pay maintenance ends if the ex-partner (having been married) cohabits with another person as if they are married. When reading this section, nearly everybody envisages an emotional relationship where the ex-wife lives with another man (this can of course also be the other way around or relate to same sex partners) and has an emotional relationship with that person. 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 in February 2016, makes this clear once again. What is at issue? The ex-wife is in an emotional relationship. The ex-husband is of the view that there is cohabitation following section 1:160 of the Dutch Civil Code, and that therefore his duty to pay maintenance has ended. To support his argument and to prove that the ex-wife is cohabiting, following the above section, the ex-husband had an investigation bureau prepare a report based on their observations of the cohabitation, or in other words, of 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 it 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 of the Dutch Civil Code to exist, it must be established that there is mutual care and that there is a shared household on a long-term basis. The partners must therefore provide in each other’s care.
This is very hard to prove. The simple fact that the new partners spend the night together, go shopping together or go on holiday is not sufficient. The request of the ex-husband to end maintenance payments was rejected by the court as it was not proven that there was a contribution to the costs of running a joint household.
Such a situation can be frustrating for anyone making maintenance payments, but according to Dutch law, the burden remains on him or her to prove cohabitation.