Ënnerhalt vun der Ehepartnerin am AOW-Alter: héiert et op a kann et verlängert ginn?

No, spousal maintenance (Partnerschaftsernährung) does not automatically end when you or your former partner reach the state pension (AOW) age. It ends when its statutory or agreed term expires; only in one specific situation, a marriage of more than 15 years with a recipient close to pension age, is the AOW age itself the end date.

Reaching AOW age can still change the amount, because pension income affects both the recipient’s need and the payer’s ability to pay. Below we explain the statutory terms, when the AOW age is the end date, when a recipient can ask for an extension and how pension income can lead to a lower amount.

Wéi laang dauert den Ënnerhalt vun der Partnerin?

For divorce petitions filed from 1 January 2020, spousal maintenance usually lasts half the length of the marriage, with a maximum of five years (Article 1:157 of the Dutch Civil Code, BW). The AOW age plays no role in that main rule.

Longer terms apply in some cases. If you have a child together under the age of 12, maintenance continues until the youngest child turns 12. For recipients born on or before 1 January 1970 after a marriage of more than 15 years, a transitional rule sets a term of ten years in certain cases. That transitional rule lapses on 1 January 2027.

If spousal maintenance was set or agreed before 1 January 2020, the old rules continue to apply, usually with a maximum of twelve years. Under those rules, too, the AOW age does not end the obligation by itself.

Whatever the term, spousal maintenance ends earlier if the recipient remarries, enters into a registered partnership or lives with someone else as if they were married or registered partners (Article 1:160 BW). It also ends when either former spouse dies.

When does the AOW age end spousal maintenance?

Only under the exception for long marriages. If the marriage lasted more than 15 years and the recipient was no more than ten years below the AOW age when the divorce petition was filed, spousal maintenance continues until the recipient reaches AOW age.

Both conditions must be met:

1. The marriage had lasted more than 15 years when the divorce petition was filed.
2. At that moment, the recipient was at most ten years younger than the AOW age that applies to them.

If you fall into this category, spousal maintenance ends when the recipient reaches AOW age, unless you agreed otherwise. In all other cases, the end date follows from the statutory term, the date agreed in your divorce settlement or the date set by the court. Check your settlement agreement carefully: parties can agree a different term, and the agreed date then applies.

Can the recipient ask for an extension beyond the AOW age?

Yes, but only in exceptional cases, and the request must be filed within three months after the maintenance term has ended. The court will only extend the term if ending maintenance would be so drastic that, in reasonableness and fairness, the recipient cannot be expected to accept it.

The recipient must file the request with the court; missing the three-month deadline means the entitlement is lost. The court assesses all circumstances of the case, including the recipient’s age, health, earning capacity and financial position, and the payer’s position.

What must the recipient prove?

The recipient carries the burden of proof. The recipient must show concrete facts that make the end of maintenance unacceptable, supported by documents.

The court looks closely at whether the recipient has done what could reasonably be expected to become financially independent during the maintenance term. Relevant evidence includes job applications, training, medical information if health is an issue, and a full overview of income, assets and expenses.

Is a lack of pension enough for an extension?

Usually not on its own. A recipient who built up little pension during or after the marriage may present this as a circumstance, but courts do not readily treat it as exceptional by itself.

On divorce, the pension accrued by both spouses during the marriage is in principle divided, unless the spouses agreed otherwise. A low pension is also often a foreseeable consequence of choices made during and after the marriage. A lack of pension is more likely to carry weight in combination with other serious circumstances, such as long-term illness or a complete inability to work.

How does pension income affect the amount?

If the term has not yet ended, a change in income at AOW age can justify a new amount under Article 1:401 BW. Either party can ask the court to change the amount, or you can agree a new amount in writing.

When the recipient starts receiving AOW and any supplementary pension, their income changes. The payer can argue that this income reduces or even removes the recipient’s need (brauch) for maintenance. The court then compares the recipient’s current income, including AOW, with the need based on the standard of living during the marriage. If the pension income covers that need, the court may reduce the maintenance to nil.

The same applies the other way round. When the payer reaches AOW age, their income usually drops, and with it their ability to pay (draagkraaft). That too can be a reason to ask for a lower amount. Until an agreement or court decision is in place, the existing amount remains payable, so do not simply pay less on your own initiative. A non-variation clause in your settlement agreement (Article 1:159 BW) can stand in the way of a change, so check your agreement first.

What does the court do in these proceedings?

The court decides on the basis of the facts and documents the parties submit. It will not look for exceptional circumstances on its own initiative.

Who must provide the facts?

The party that relies on a circumstance must state it and, if disputed, prove it. If the recipient does not submit enough information about their financial position and their efforts to become independent, the court will generally reject a request for extension. For a request to reduce the amount, the payer must likewise substantiate the change in circumstances.

Can both parties respond to everything?

Yes. Under Article 19 of the Dutch Code of Civil Procedure (Rv), the court must give both parties the opportunity to respond to each other’s arguments and documents. The court may not base its decision on documents or calculations that one party has not been able to see and respond to.

Wat sollt Dir als Empfänger kontrolléieren?

• Check the end date in your settlement agreement or court decision, and whether the 15-year exception under Article 1:157 BW applies.
• Calculate your income from AOW and supplementary pension, and compare it with your need.
• Collect evidence of your efforts to become financially independent: applications, training and medical information.
• Diary the three-month deadline for an extension request; after that, the entitlement is lost.
• Check whether a non-variation clause (Article 1:159 BW) protects the agreed amount.

Wat sollt Dir als Bezueler kontrolléieren?

• Check when the term ends and whether the payments stop automatically on that date.
• Calculate your own income after AOW age and your remaining ability to pay.
• Ask your former partner for an overview of their AOW and pension income.
• Make a written proposal for a new amount first, and file a request under Article 1:401 BW if you cannot agree.
• Keep paying the existing amount until an agreement or court decision is in place.

What can we do for you with spousal maintenance at AOW age?

eis Scheedung Affekoten advise both payers and recipients of spousal maintenance. In practice we:

• Determine the end date of your maintenance under the old or the new statutory rules.
• Recalculate need and ability to pay once AOW and pension income start.
• Assess whether an extension request has a realistic basis and which evidence you need.
• Draft and file the extension request within the three-month deadline, or the defence against it.
• File or defend a request to change the amount under Article 1:401 BW.

Resumé

• Spousal maintenance does not end automatically at AOW age; it ends when the statutory or agreed term expires.
• The AOW age is the end date only after a marriage of more than 15 years, if the recipient was within ten years of AOW age when the divorce petition was filed.
• A recipient can ask for an extension in exceptional cases, within three months after the term ends, and must prove the circumstances.
• A lack of pension alone is rarely enough for an extension.
• AOW and pension income can justify a lower amount under Article 1:401 BW, for either side.

Oft gestallten Froen