Can you waive spousal support during marriage?

Divorces can be legally complicated, especially when it comes to spousal support. Spousal support is a financial contribution that one partner pays to the other after a divorce. Sometimes, however, the (ex)spouses have entered into an agreement in which they waive spousal support.

The question is whether these agreements are always valid. This was discussed in the recent ruling of the Amsterdam Court of Appeal of October 24, 2023.

Background of the case

This case involved a man and a woman who were getting divorced.

They had agreed in writing during the marriage that the woman would not be entitled to spousal support after a possible divorce. This is also called a "nil clause".

Based on this nil clause in the agreement, the court ruled that the woman could not claim spousal support. The court of appeal did not agree with this decision of the district court and ordered the man to pay spousal support to the woman.

The legal question

The main question in this case is whether the nil clause in the agreement, in which the woman waived spousal support, is valid. According to the law, agreements in which spousal support is waived are in principle null and void (invalid). However, there is an exception: spouses can determine by agreement before or after the divorce whether and how much spousal support should be paid.

The Supreme Court on the exception

The Supreme Court, the highest judicial body in the Netherlands, has previously ruled that this exception only applies to agreements concluded during the marriage with a view to an upcoming divorce. This means that not only are agreements that waive spousal support before the marriage null and void, but also agreements that are concluded during the marriage and are not aimed at an upcoming divorce.

The Court's consideration and decision

The Court was faced with the question whether the nil clause in the agreement between the man and the woman, which was signed one day after their marriage, should be considered null and void. The man stated that he had included the nil clause in the agreement because at the time (i.e. one day after the marriage) he already had doubts about their marriage. However, the court ruled that this is not sufficient to conclude that the agreement was concluded with a view to an upcoming divorce. Especially since the man and the woman did not separate until three years later.

The Court therefore decided, contrary to the District Court, that the nil clause in the agreement is null and void. This means that the woman is entitled to an amount of spousal support.

Conclusion

This case shows that spousal support and agreements related to it can be complex. Whether such an agreement is valid depends on the circumstances of the case. In this respect, the applicable law and case law must be carefully considered.

If you are in a similar situation, it is wise to seek legal advice from a specialist lawyer.