Child Maintenance in the Netherlands
| Author | Pauline Montanus,Ian Curry-Sumner |
| DOI | 10.1177/138826271201400406 |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| Subject Matter | Article |
THE NETHERLANDS
Ian Curry-Sumner* and Pauline Montanus**
Abstract
The determination of child maintenance in the Netherlands is a complicated
procedure involving the calculation of the needs of the child and the financial capacity
of the maintenance debtor. The system used tends towards individualism rather than
standardisation. As such, it involves complicated formulae. The system itself has
come under a great deal of criticism, leading to proposals for reform both from the
judiciary as well as from politicians. The article outlines the method currently in use
in the Netherlands for determining child maintenance.
Keywords: child maintenance; determination; individualistic; judiciary standards;
the Netherlands
1. INTRODUCTION
The determination of child maintenance is a difficult, time-consuming and complicated
process, and it can often become the focus of disputes between separating spouses.1
The interests involved can often be diametrically opposed. Nonetheless, rules and
guidelines have been developed to ensure a ‘fair’ determination of the amounts
payable. Although the question obviously arises as to what constitutes fairness, this
article is limited to a discussion of the methods used to calculate child maintenance.
In the Netherlands, statute law determines who is responsible for paying
maintenance. The parents’ obligations towards their children are laid down in
*
Ian Curry-Sumner is a freelance lecturer and researcher with Voorts Legal Services, Utrecht
and was formerly a Senior Lecturer in Private International Law, Comparative Law and Family
Law at Utrecht University. Address: Molengraaff Institute, Janskerkhof 12, 3512 BL Utrecht; the
Netherlands; tel: +31 (0) 30 253 7184; e-mail: info@voorts.com.
**
Pauline Montanus is an Attorney-at-Law with Schlicher Advocaten, The Hague. Address: Mayor
Kolfschotenlaan 652585 DZ Den Haag, the Netherlands; tel: +31 70 322 75 16; e-mail: montanus@
schlicheradvocaten.nl.
1
Spruijt and Spruijt (2010: 125–138).
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Child Maintenance in the Netherlands
Article 1:392 of the Dutch Civil Code (Burgerlijk Wetboek [BW]).2 This obligation
to pay maintenance applies to minors as well as to children up to the ‘adult’ age of
21. According to Article 1:397 BW, the amount of maintenance due is determined
with reference to the needs (behoefte) of the person entitled to maintenance, as well as
the financial capacity (draagkracht) of the person obliged to pay maintenance. These
concepts remain, however, open norms in the legislation, and therefore have been
given substance through case law, legal literature and a number of substantial reports.
It is this additional material that will form the backbone of this article.
The article discusses the standards and guidelines on the basis of which child
maintenance can be determined. After a brief introduction to the Trema Report
(Section 2), the tools used to determine the needs of the maintenance creditor are
analysed (Section 3), followed by a similar approach with respect to the financial
capacity of the maintenance debtor (Section 4). The focus subsequently turns to a
number of recent developments with regard to the methods used for determining
child maintenance (Section 5). Before providing some concluding remarks (Section
7), the theoretical discussion of the calculation of child maintenance is applied to two
practical vignettes (Section 6).
2. THE TREMA REPORT3
When discussing issues surrounding the determination of child maintenance in
the Netherlands, it is almost impossible to avoid reference to the Trema Report. The
following section is therefore devoted to explaining the background of this report − its
authors (see Section 2.1), the status of the report (see Section 2.2) and the consultation
process utilised for updating and correcting the material provided (see Section 2.3).
2.1. DUTCH ASSOCIATION FOR THE JUDICIARY
The Netherlands has an independent professional association of judges and public
prosecutors, called the Dutch Association for the Judiciary (Nederlandse Vereniging
voor de Rechtspraak). This association monitors and promotes the independence and
quality of the administration of justice and confidence in the judiciary. It focuses on
the implications of the introduction of new legislation and advises the Minister of
Justice, for which it draws on the expertise of its members.
In 1976, this association created a working group, the Maintenance Criteria
Working Group (Werkgroep Alimentatienormen [the Maintenance Working Group]),
to prepare a report on the issues surrounding maintenance. In 1979 the Maintenance
Working Group published the first Maintenance Criteria Report. The Report was
2
Schrama (2010: 15–30).
3
Maintenance Criteria Report.
European Journal of Social Security, Volume 14 (2012), No. 4
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Ian Curry-Sumner and Pauline Montanus
published in Trema, the journal for the judiciary. For this reason, it is generally
referred to as the Trema Report. The Report contained standards and guidelines which
judges may use in defining the terms ‘needs’ and ‘financial capacity’ for the purpose of
determining child maintenance. The Report aimed to promote the equality of rights
and the principle of the protection of legal interests, as well as to help the party seeking
a maintenance order to obtain it.4
2.2. STATUS OF THE TREMA REPORT
Although the Maintenance Working Group recommended the application of these
guidelines, the Dutch Supreme Court has held that the Report is not to be regarded
as ‘law’, as defined in Article 79 of the Dutch Judiciary (Organisation) Act (Wet op
de rechterlijke organisatie).5 Accordingly, the Report is not binding on the judiciary.6
Furthermore, it is up to the judge to determine whether, in a given case, needs and
capacity should be determined using the maintenance criteria.7 Nonetheless, it is
extremely rare to find a judicial decision that is not based upon the principles laid
down in the guidelines. As well as providing practical and technical assistance
through guidelines and tables for determining child maintenance in individual
cases, the Report also functions as a ‘one-stop shop’ by combining many different
recommendations and reports published over the years. It has, furthermore, been
amended in line with new legislation, case law and academic insights.8 The Trema
Report also includes calculation models, which are updated twice annually. For a
number of years, it has also been available online, which ensures that those in the
Dutch legal world can always access the most recent version.
2.3. TREMA REPORT PROBLEMS COMMITTEE
The Maintenance Working Group also holds annual consultations with those who
use the Report in practice. Various associations for legal professionals involved in
the maintenance determination process are invited to comment on the rules, e.g. the
Trema Report Problems Committee of the Dutch Association of Family Lawyers and
Divorce Mediators (Vereniging van Familierecht Advocaten Scheidingsbemiddelaars
(VFAS)). During these meetings, the Committee discusses the problems encountered
in applying the maintenance criteria. On the basis of these discussions, proposals
for adjusting the Report are put forward. The Committee has a certain degree of
authority since it represents lawyers specialising in family law. As it represents lawyers
4
Werkgroep Alimentatienormen (2006: 3).
5
Dutch Supreme Court 1st November 1991; Dutch Supreme Court 23rd January 1998.
6
Dutch Supreme Court 14th October 1995.
7
Dutch Supreme Court 7th March 1986; Dorn (2008b, §3.2); Dorn (2008c, §8.1).
8
The most recent amendments were published in July 2012.
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Child Maintenance in the Netherlands
whose clients are those entitled to maintenance as well as those obliged to pay it, the
Committee cannot have any other interest than that of accurate standardisation.
2.4. FUNDAMENTALS OF THE REPORT
As already explained in the introduction to this article, child maintenance calculations
in Dutch law are based on two fundamental principles: the needs of the child (behoefte)
and the financial capacity of the debtor (draagkracht). This is evident in the Trema
Report, since individual chapters are devoted to these two concepts. The next section
focuses on these concepts.
3. THE NEEDS OF THE CHILD
How much money does a child need to live on? The answer to this question depends
on one’s perception of the moral justification underpinning child maintenance.9 As
Garrison has illustrated, there are many different theories according to which child
maintenance may be determined.10 Should a child be entitled to share in the wealth
of its parents, or does child support aim to provide children with a basic level of
subsistence? This section discusses the methods used in the Netherlands to determine
the needs of the child.
Since Dutch law itself provides no guidelines or calculation models to aid such
a determination, a number of different systems have been developed. In the last few
decades, three different systems have competed with each other:
1. a system developed by the National Institute for Budgetary Advice (Nationaal
Instituut voor Budgetvoorlichting (Nibud)) in co-operation with Statistics
Netherlands (Centraal Bureau Statistiek (CBS)). As a result of this co-operation,
this system is often referred to as the Nibud/CBS system;
2. the foster care compensation...
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