My ex is living with someone! What does this mean for my alimony obligation?

Our office is regularly approached with the question of whether the obligation to pay alimony ends when the person entitled to alimony cohabits with a new partner. This blog provides an answer to the question of when there is cohabitation and what this means for the obligation to pay alimony to the partner, based on current legislation and case law.

What does the law say?

Article 1:160 of the Civil Code states that an obligation to pay spousal support ends when the person entitled to support remarries, enters into a registered partnership or starts living together with another person as if they were married or had registered their partnership. The maintenance obligation ends by operation of law. This means that the person obliged to pay support can also reclaim all amounts for the past from the moment of cohabitation.

Especially the words “as if they were married” causes confusion in practice. When exactly this requirement is met is difficult to determine and has led to many court rulings.

What does the case law say?

Over time, case law has determined that the following five conditions must be met for a couple to be considered to be living together as if they were married:

1. an affectionate relationship;
2. of a sustainable nature;
3. a de facto cohabitation;
4. a shared household;
5. a mutual care.

In short, these conditions mean the following.

Affective relationship

There must be a special form of affection between the person entitled to maintenance and his or her new partner, or at the very least one must be very pleased with the other person. The longer the relationship lasts, the greater the mutual involvement in each other's lives, so that one can speak of a bond of fate. In general, this requirement is not very difficult to demonstrate.

Sustainable nature

The cohabitants must have the intention to have a permanent relationship with each other for an indefinite period. This requirement also applies: the longer the relationship, the easier it is to demonstrate.

Actual cohabitation

In practice, however, actual cohabitation is less easy to prove. A joint registration at an address with the municipality can be a relevant factor, but it does not have to be decisive. Usually, people both keep their own homes and remain registered at different addresses. What is important are the actual circumstances. Consider situations in which the partner's car is parked in front of the maintenance recipient's door almost every day, the partner regularly walks the maintenance recipient's dog, the partner is not seen at his own home address, he stays with the maintenance recipient every day, spends the night there and gains access to the maintenance recipient's home with his own key. If the maintenance recipient succeeds in proving this, there is a good chance that the judge will assume actual cohabitation. According to recent case law, it is not always required that the cohabitants have not been together in the same place every day of their relationship.

Joint household and mutual care

These conditions are met when the cohabitants in fact each contribute to the costs of the joint household or otherwise provide for each other's care. For example, the partner goes along to family events, takes the children to sports, the cohabitants go on holiday together or they pay for groceries in turns.

According to the Supreme Court, judges must be cautious in assuming cohabitation as referred to in article 1:160 BW. Application of this article results in the person involved who has started living together as if they were married, definitively losing his entitlement to spousal support. If the cohabitation ends, spousal support cannot be requested again from the ex-spouse.

Who has to prove cohabitation?

In these cases, the burden of proof lies with the maintenance debtor and this often leads to difficulties in proving the case. In order to prove all five conditions, a detective agency is often used in practice.

When the maintenance debtor has provided sufficient evidence, it is up to the maintenance creditor to sufficiently dispute the facts alleged by the maintenance debtor. If the maintenance creditor fails to do so, the court will accept the 'cohabitation as if they were married' and the maintenance obligation will end.

To ask?

Our office has extensive experience with the so-called “160 procedure”. If you have any questions about your alimony obligation or if you would like more information about a detective agency with which we have had good experiences, please let us know. We will be happy to provide you with advice.