Dutch law states that spousal maintenance ends immediately when the receiving party moves in with a new partner. This article explains how the cohabitation rule works in practice and what is necessary for the termination of spousal maintenance.
The main rule: Spousal maintenance ends when the receiving party starts cohabiting
Dutch law stipulates in article 1:160 of The Dutch Civil Code that spousal maintenance terminates by operation of law when the maintenance recipient remarries, enters into a registered partnership, or begins cohabiting with a new partner “as if they were married”. This means the obligation ceases immediately and without notice needing to be given. There will be no problem in proving when your ex-partner remarried. However, the definition of cohabiting “as if married” is complicated. It also leads to regular disputes between ex-spouses. When is termination of spousal maintenance warranted?
Cohabiting as if married
So, when does a situation exist in which two people cohabit “as if they were married”, thereby terminating future maintenance under article 1:160 of the Dutch Civil code?
The Dutch Supreme Court established in 2016 that there must be a situation in which the maintenance recipient has (1) a (romantic) relationship (2) of a durable nature (3) that entails mutual care, (4) cohabitation and (5) a joint household. These criteria are cumulative and must all be met before maintenance can be terminated.
Below we will discuss these criteria based on recent case law:
Romantic relationship of a durable nature
In determining whether a relationship is of a durable nature, the nature of the relationship and the intentions of the maintenance recipient and their new partner are considered. According to the Rotterdam District Court, physical intimacy is not a requirement for an affective relationship. A mutually affectionate platonic relationship can be sufficient. The enduring nature of a relationship may be evidenced, for example, by the duration of the relationship, whether the parties go on holiday together, the frequency with which the parties spend time together, and/or whether they rent or have purchased a shared home. Interestingly, in this case, the maintenance recipient had bought a house with their new (same sex) partner. They were also raising their children from previous relationships together.
Cohabitation
Cohabitation does not automatically imply that the parties must live together in a shared home all the time. The legal definition is more nuanced. The Gelderland District Court held that modern societal norms entail that the fact that parties maintain separate homes does not, in itself, preclude a finding that they are living together as if married. However, it must be clear that the focal point of their residence is one of the two homes, or that the individuals concerned spend the majority of their time together, alternating between the two properties. This also seems logical in cases where two registered addresses are maintained to ‘prove’ that parties do not live together.
Mutual care and a shared household
According to the Court of Appeal of The Hague, mutual care and a shared household may exist if, among other things, the cohabiting parties both contribute to the costs of the shared household or otherwise provide for each other’s care. In many cases, the person liable for maintenance engages a private investigator to demonstrate the existence of mutual care and a shared household. It is noteworthy that the Court of Appeal takes a very strict approach to applying these criteria compared to other recent rulings, reasoning as follows:
“The elements of mutual care and maintaining a joint household imply a certain level of entanglement, in the sense that the parties involved provide each other with necessities, whether financially or otherwise. It is insufficient for this purpose to observe that [the new partner] has a key to the home, occasionally looks after [the minor child], brings groceries to the woman’s home, that the woman and [the minor child] drive in [the new partner]’s car, that they went on holiday together once, and that [the new partner] also eats at the woman’s home. After all, such behaviours are also consistent with a romantic relationship in which the parties do not provide mutual care or maintain a joint household. Consequently, mutual care and financial entanglement between the woman and [the new partner] have not been established.”
In a case before the Gelderland District Court, these criteria are accepted much more readily. The court held that mutual care was sufficiently established based on an investigation report showing that the parties shop together and that both bring groceries to each other’s homes.
In another case before the Rotterdam District Court, mutual care and a joint household is accepted where an alimony recipient and their new partner jointly own a home. They additionally hold a joint account for housing costs and groceries.
These three judgements from 2025 and 2026 show how differently the courts can judge what seem very similar circumstances.
Burden of proof for termination of spousal maintenance
And this is exactly where it gets difficult. The burden of proof lies with the party liable for maintenance. They have to demonstrate that these criteria are met in order to terminate the maintenance obligation. If the other party denies outright that they are living with someone, how do you prove your case?
One tactic, as mentioned above, is to hire a private detective. This is a tried and tested method to prove that the other party is living with someone and they share a household together, pay bills together, do the school run etc. In some cases the costs of the investigation will be recompensed of the court decides that the other party has been untruthful. However, this is not always the case.
Sometimes the courts do lend a hand. According to the Gelderland District Court, the maintenance recipient cannot just sit back and deny, but must make a credible defence that they are not cohabiting. If the defence is not deemed credible, the court can reverse the burden of proof. A relevant factor here may be that the recipient is better able to provide insight into their financial circumstances than the party liable for maintenance. The maintenance recipient may have an equally hard time proving that they are not cohabiting.
However, even to get to the stage of reversal of the burden of proof is often difficult. The Dutch courts do not have a fixed line on this. Each case (and judge) is different.
Effective date of termination of spousal maintenance
The maintenance obligation ends as of the date on which cohabitation “as if married” commences. If the exact date is not clear, then the court will determine a date from which there is sufficient proof of cohabitation. For example, this could be the date an investigation report was compiled. Or it could be the date the recipient bought or rented accommodation that they are cohabiting in. The court does not have the discretion to set a termination date other than the date of cohabitation. The maintenance recipient must therefore take into account that they will have to repay all maintenance received from that date. That is, if the case is successful.
Finally, article 1:160 of the Dutch Civil Code is irrevocable in nature and cannot be reversed at a later date.
Conclusion
If a recipient contests that they are cohabiting, then the courts will have to determine this before the maintenance obligation will terminate. Bringing and proving a case is not easy, but not impossible either. Recent court cases show that a credible case showing sufficient indicators of cohabitation can ultimately be successful. Each case hinges on the individual circumstances involved.
And a as a warning to maintenance recipients: a successful case often results in full costs being awarded against the recipient as well as having to repay maintenance. Legal costs may also include the costs of a private investigation report running into thousands of Euro’s.
Contact us:
Please contact us for further information or advice regarding the termination of spousal maintenance.
