How should marriage-related need be determined?
By means of: Daisy Mandema
Allocation of spousal support does not happen just like that. Alimony is awarded if there is i) need on the part of the person entitled to support (the recipient) and ii) capacity to pay on the part of the person obliged to support (the payer). How should it now be determined what someone's need is?
Expert Group on Alimony Standards
In order to determine the need, the guidelines (also called Trema standards) drawn up by the Expert Group on Alimony Standards must be followed. Although these guidelines are not law (in the sense of Article 79 RO), these standards are generally applied by all courts and courts of appeal. You can find the most recent Trema report here here consult. The trema report shows that ''In determining the need for maintenance contributions by the person entitled to maintenance, account must be taken of all relevant circumstances, including the amount and nature of both the income and expenditure of the parties during the marriage, which may indicate the level of prosperity in which they lived, and, as far as possible, of specific data concerning the actual or reasonably likely expected costs of living of the person entitled to maintenance.''
In short, this means that the need is derived from the assumed level of prosperity of the spouses during the marriage.
Methods for calculating the need
In practice, two methods have been developed to determine the need. The first method involves drawing up a so-called needs list, which provides a detailed overview of the expenses incurred during the marriage and the reasonably expected expenses in the future. This includes housing costs and expenses for subscriptions, personal care, groceries, sports, holidays and savings accounts. The total amount constitutes the need. The second method concerns the so-called court standard. The court standard is a rule of thumb developed in case law, which stipulates that the need is determined at 60% of the joint monthly net disposable income of the last years of the marriage prior to the break-up (after any costs for the children have first been deducted).
Custom made
According to the established case law of the Supreme Court, determining the need is a customised approach. In 2003, the Supreme Court ruled (ECLI:NL:HR:2003:AM2379): ''When determining the need related to welfare, the judge must take into account all relevant circumstances''. This means that a needs list should be drawn up, at least if an objection is raised against the application of the court standard. After all, the court standard is only a rule of thumb, whereby the question is whether the outcome of the court standard adequately reflects the actual expenses. Drawing up a needs list, on the other hand, is more concrete. In practice, however, this often proves to be time-consuming and therefore expensive, because it is sometimes impossible to substantiate all expenses during the marriage in concrete terms (using bank statements and other proof of payment). Moreover, determining the need on the basis of a needs list can give rise to a lot of discussion in the courtroom because this then gives rise to a debate between the parties by post, for example about what the expenses were for personal care and the like.
The current trend in case law
In 2018, the Supreme Court confirmed the judgment of the Court of 's-Hertogenbosch (ECLI:NL:HR:2018:312). The court has fallen back on the court standard, only where it was not possible to determine the woman's actual need on the basis of the parties' debate. The court was therefore allowed to determine the woman's need on the basis of the 60% standard. The Supreme Court ruled that this is not in conflict with an earlier judgment rendered by the Supreme Court in 2010 (ECLI:NL:HR:2010:BM7050), in which the Supreme Court turned against the application of the court standard as the sole criterion. In short, despite the fact that the court standard as the (sole) criterion for need may be at odds with the customization required by the Supreme Court, it was inferred from this judgment in 2018 that the 60% standard can apply as the (sole) criterion.
The Amsterdam Court of Appeal considered in 2018 (ECLI:NL:GHAMS:2018:4010) as follows: “In such a case, the court standard, which takes the net disposable family income during the marriage as a starting point, offers a clear and in practice easy-to-use standard that leads to a realistic estimate of the maintenance creditor's needs. This standard has the additional advantage that ex-spouses are not put in a position where they feel compelled to engage in unnecessarily escalating discussions about individual cost items on a needs list, no matter how small in size.''
Court of Arnhem-Leeuwarden and Court of 's-Hertogenbosch in 2019 and 2020
The Arnhem-Leeuwarden Court of Appeal and the 's-Hertogenbosch Court of Appeal continued on this path and gradually developed a formulation for the application of the court standard. Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:2019:6899) considers it in principle not his role to give an opinion on individual spending choices. After all, these could and sometimes even should turn out very differently based on personal preferences, whereby high(er) costs on one or more components within a family budget can be compensated by savings on other items. The submission of a list of needs is therefore primarily intended to provide insight into the way in which the budget calculated according to the court standard is spent. This method has the advantage that the ex-spouses are not put in a position in which they feel compelled to engage in unnecessarily escalating discussions about specific cost items appearing on a list of needs. In another judgment (ECLI:NL:GHARL:2019:7121) the Arnhem-Leeuwarden Court of Appeal finds that, under the circumstances, the application of the court standard is a more realistic yardstick for determining the woman's need than calculating her need on the basis of the lists of needs submitted in the proceedings. In addition to the Arnhem-Leeuwarden Court of Appeal, the 's-Hertogenbosch Court of Appeal also considers (ECLI:NL:GHSHE:2020:1088) that the court standard is a useful, widely used and usually sufficient method in maintenance practice to determine the marital need. Determining the marital need in another way usually comes down to time-consuming and laborious exercises using lists of needs, which encourage exaggerated positions to be defended on one side or the other. In the vast majority of those cases, the court sees that the conclusion is not substantially different from that reached using the court standard.
Amsterdam Court and The Hague Court in 2019 and 2020
In contrast to the Arnhem-Leeuwarden Court and the 's-Hertogenbosch Court, the Amsterdam Court and the Hague Court followed a different path. In the judgment of the Amsterdam Court (ECLI:NL:GHAMS:2020:824) the man disputes that the woman's need can be determined on the basis of the court standard. Although he has not substantiated this position and the court standard in principle provides a clear and in practice easy to use standard that leads to a realistic estimate of the need of the maintenance creditor, the court in the present case determines the woman's need on the basis of the list of needs submitted by her on appeal, which is accompanied by supporting documents. Court of The Hague (ECLI:NL:GHDHA:2019:3880) states the following. The court disregards the woman's argument that the court standard should be followed in determining her need, since the man cannot agree with it. The court considers that “the level of the woman’s need is also related to the parties’ prosperity during the marriage. When determining the level of the need, all relevant circumstances must be taken into account. This means that the judge must take into account both what the income was during the last years of the marriage and must have a general insight into the expenditure pattern during the same period in order to be able to deduce from this the level of prosperity in which the parties lived. After all, the level and nature of both the income and the expenditure provide an indication of the level to which the maintenance creditor can reasonably claim maintenance after the termination of the marriage, as far as the cost of living is concerned. (The possibility of) asset formation will also in principle – depending on the circumstances – contribute to the judgment that the spouses lived in a certain prosperity. In addition, the need will be determined by the judge as much as possible on the basis of concrete data concerning the real or the costs of living that can be expected with a certain degree of probability. The extent to which the fixed costs and other, globally estimated, expenses or reserves for expected expenses of the person entitled to maintenance are reasonable, must also be assessed on the basis of the degree of prosperity as determined by the court in the aforementioned manner.
The court norm, what is the current status?
Based on the aforementioned case law, there appears to be a separation between, on the one hand, the Arnhem-Leeuwarden Court of Appeal and the 's-Hertogenbosch Court of Appeal, where the courts of appeal have ruled that the court standard applies unless there is a well-motivated dispute, and, on the other hand, the Amsterdam Court of Appeal and the Hague Court of Appeal, where the courts of appeal have ruled that in the event of a dispute of the court standard, the need must be determined on the basis of a list of needs. We are therefore waiting for the Supreme Court.
If you are going through a divorce or have questions about your specific situation, please feel free to contact us contact with us. We will be happy to provide you with personal advice tailored to your needs.
