Before bedtime, I like to read the children fairy tales filled with magic. These centuries-old folk stories often end with the well-known phrase “and they lived happily ever after.” That a long and happy life is not granted to every couple is a fact I encounter regularly in my practice. Not all divorces are the same.

While some couples amicably formalize the irreparable breakdown of their marriage through a covenant attached to the divorce decree, other couples engage in fierce disputes over spousal and child support and/or the division of shared assets.

Spouses are obligated to care for and raise their children. They are also obliged to cohabit unless there are significant reasons preventing this. The obligation to live together ceases if a request for divorce or a request for legal separation has been filed, or if a decree regarding one or more provisional measures is in effect.

It goes without saying that a divorce is a turbulent period for both parties, during which uncertainty prevails. When cohabitation abruptly ends without consultation, financial problems often quickly arise. After all, two separate households usually involve additional costs. A provisional measure can provide clarity for the couple as long as the divorce has not been finalized. Who will leave the marital home? Where will the children live, and how will the visitation schedule be arranged? What about support payments? If the parties cannot reach an agreement themselves, a provisional measure may offer a solution.

Through a provisional measure, one can request the court to decide who may continue to use the marital home or certain property – to the exclusion of the other – during the divorce proceedings, who will have custody of the children during the divorce, the amount to be paid for the care and upbringing of the children by the spouse not entrusted with custody, the allocation of parenting and caregiving responsibilities, visitation arrangements, a system for exchanging information or consulting each other about the minor children, or a provisional amount that one spouse must pay for the other spouse’s maintenance.

A provisional measure issued by the court applies for the duration of the divorce proceedings. It is therefore possible that the amount of support determined in the provisional measure may be higher or lower during the (subsequent) divorce procedure.

The court makes a balancing of interests in which all circumstances of the case are considered. For example, each party has an equal right to remain in the marital rental or owned home. There may even be situations in which the spouse who owns the marital home (for instance, in the case of a prenuptial agreement) must leave so that the other spouse can continue living there until the divorce proceedings are concluded. Who takes care of the children? Does one party work from home? Does one party have a job that requires frequent travel abroad? Is the home adapted to specific needs? The court will take such circumstances into account when deciding on the exclusive use of the marital home by one of the parties during the divorce proceedings. These questions are not determined on a “first come, first served” basis.

It must also be considered that the other party may file a counter-request after being informed of the provisional measure request.

Decisions of the court in provisional measures cannot be appealed. However, it is possible to request a new measure based on changed circumstances. This might be the case if the support-paying spouse is suddenly dismissed from work or if the spouse granted exclusive use of the marital home decides to go on a year-long world trip. Because a provisional measure is urgent, the request is typically heard by the court within three (3) weeks of filing, and the judge issues a decision as soon as possible after the hearing. A provisional measure can be requested before filing for divorce, but it loses effect if no divorce or legal separation request is filed with the court within four weeks after the provisional measure is issued.

If you realize that your marriage is not a fairy tale and you do not intend to continue living unhappily, it is wise to consider divorce and plan how you will manage your life during the proceedings based on your personal circumstances.

Ideally, both parties are willing and able to reach reasonable agreements. Unfortunately, divorcing couples often encounter difficult obstacles, making mutual agreement impossible. If you face a spouse who is obstructive, a provisional measure can provide some clarity and relief. If you have questions after reading this article, please feel free to contact me.

Some time ago, I handled a case in which the opposing party—the father, using the fictitious name Matteo—did everything he could to avoid his payment obligations. This was despite the fact that, under the law, parents are required to contribute to the costs of raising and caring for their minor children in proportion to their means.

Mr. Matteo argued that he had no financial capacity to pay child support for his minor child. Naturally, I vigorously and thoroughly defended the mother’s position. The man tried to convince the court of first instance that he had no income, or at best minimal income. However, he did not submit any documents showing that he had made every effort to generate income. He also failed to demonstrate that, despite sufficient attempts, he was unable to find work. Instead, he submitted information regarding his recurring monthly expenses. Although Mr. Matteo claimed he had been unemployed for years, he stated that he had high costs for Aqualectra (electricity), gasoline, groceries, clothing, and personal care.

During the oral hearing, the judge posed critical questions after my plea—and rightly so. We are talking about a man in the prime of his life, with a high level of education (higher professional education), multiple degrees, and an impressive résumé. During questioning, the man admitted that in his last job he earned a monthly salary of 4,000 guilders. The judge used this admission to conclude in her decision that, given his education and work experience, Matteo was capable of generating the same income again in the short term. The court granted my client’s request for child support and ruled that Matteo must pay 550 guilders monthly in advance to cover the costs of raising and caring for his minor child. So, even though we were dealing with a man who claimed to have no income, the court determined that this did not relieve him of his obligation to contribute to the child’s expenses.

Apparently, Mr. Matteo could not accept this ruling and decided to appeal to the Court of Appeal. This time, we received a massive file filled with numerous job applications that he claimed to have sent. His appeal requested that the child support he was ordered to pay be reduced to zero, and that the mother return all amounts she had received since the first-instance ruling. Again, Matteo argued—this time in appeal—that he did not have the financial capacity to pay the awarded contribution for the child’s upbringing and care. He also claimed that the mother had insufficiently substantiated the child’s expenses.

Using a statement from his parents, the man claimed—without showing any emotion—that they had given him a loan with which he had paid the child support in recent months. He also went to great lengths to convince the Court of Appeal that he was unable to contribute even a single cent. I watched with disbelief the summary of his monthly expenses that Matteo submitted. Although he claimed to have no income, he simultaneously provided a breakdown of costs showing that he had to pay an astronomical monthly electricity bill, as if the air conditioners at his home were running day and night. His listed gasoline costs were higher than those of an average family with three children. Moreover, he claimed to have substantial personal care expenses, including haircuts.

The mother’s relief was immense when the Court of Appeal’s ruling was announced. Like the first-instance judge, the court found it implausible that Mr. Matteo had no income at all. Even the statement from his parents, indicating that they contributed monthly to financially support their “beloved son,” did not change the outcome. The Court of Appeal held that his significant recurring monthly living expenses did not indicate a lack of income. The court also noted that it would have been reasonable for Matteo to tighten his belt to reduce his living costs, partly to avoid unnecessarily burdening his parents, whose financial situation he had not claimed to be particularly wealthy. His spending, however, did not reflect this.

Fortunately, it is not very common for a parent to refuse to contribute to the costs of raising and caring for children, as in the example above. Most parents agree that children should not suffer due to the divorce. Disagreements about the exact amount to be paid may continue. In such cases, mediation is one option to reach a peaceful agreement if direct negotiation between the parents does not succeed.

After the end of a relationship between the parents, the child has the right to maintain contact with both parents. This applies both to the parent with parental authority and to the parent without it. In other words, even if a parent does not have custody of the child, that parent still retains the right to spend time with their child.

Since the outbreak of the Covid-19 virus and the government-imposed regulations—which essentially require people to stay home as much as possible—I have been approached several times by divorced parents (mostly mothers) of minor children asking whether they must adhere to the visitation schedule under the current circumstances. This is reason enough to shed some light on this topic.

Unfortunately, there is no one-size-fits-all answer. In addressing this question, I would like to first emphasize that the visitation schedule—especially if it has been issued by the court—remains in effect. The coronavirus crisis is not a reason to keep children from their other parent. The guiding principle is that children should experience as few negative effects as possible from a divorce or separation, even during times of Covid-19.

Parents must, of course, take into account the government-imposed rules during the pandemic, as well as the specific circumstances of their situation. Every case is different, and I advise parents primarily to coordinate with each other on the possibilities available in their case. For children, it is generally best if the agreed or imposed visitation schedule continues. After all, even during the Covid-19 pandemic, children retain their right to contact both parents.

However, practical challenges may arise that make visitation difficult—for example, if parents are restricted from going outside on the day of the handover due to local regulations. Another scenario could be if the child or the other parent shows potential health symptoms. In such cases, it may be prudent to keep the child at home.

It is also possible that children themselves do not want to visit the other parent due to the uncertainty and stress caused by the Covid-19 situation. This is understandable: everything is different now, and fear of the virus can affect children as well as adults. In these cases, parents have a special role in reassuring their children. Show extra understanding, patiently answer their questions, and engage in open conversation with them.

I also recommend not escalating disagreements with your ex-partner regarding compliance with the visitation schedule. Remember that children generally need both parents (emotionally), especially for their development, even during Covid-19.

The coronavirus and resulting lockdown do not, in themselves, justify stopping the visitation schedule. However, the surrounding circumstances may warrant temporary adjustments. It is important to adhere to existing agreements as much as possible. Parents are free, however, to make temporary changes in consultation with the other parent. During a full lockdown, children should strictly remain with the parent who holds their primary residence. Beyond that, arrangements largely depend on the child and the parents’ willingness to cooperate and be flexible.

If a decision is made to temporarily suspend the visitation schedule, it is important to provide an alternative form of contact. If using video calls, it may help to schedule multiple sessions per day. The key is to adapt to the child’s age and needs. The younger the child, the more challenging video calls become. For example, a parent could read a book, sing a song, or play a game via video call. For older children, especially those attending school, video calls are easier and can even be used to assist with schoolwork.

Of course, not all parents cooperate smoothly, and reaching mutually acceptable adjustments may not be straightforward. Parents may also interpret government regulations differently. In such cases, one parent may insist on relying on government rules and simply maintain that the visitation schedule cannot take place temporarily. Unfortunately, there is little the other parent can do. Covid-19 inevitably causes stress and uncertainty. In such cases, it may be wise to accept the temporary suspension of the schedule. Keep in mind that the situation can quickly change, and this is not a permanent modification. Flexibility is key, in the best interest of the child(ren), and communication should continue.

Always remember that children do not need extra stress. In other words, even temporarily acquiescing to the unreasonable demands of an ex-partner may be in the child’s best interest. Conversely, if you are the parent keeping the children at home, it is important to continue facilitating contact between the children and the other parent. Be generous and try to compensate for the time the children are not with the other parent.

Ideally, parents take each other and the children’s safety into account. If you need further information or would like to discuss the situation with a sparring partner, you can contact me at eisden@true-lawyers.com. I will provide guidance to help prevent further conflicts.

Spousal maintenance is intended to protect spouses from financial hardship after a divorce. As long as the parties agree, they can make any arrangements they wish regarding spousal maintenance. In such cases, the law can essentially be disregarded. The statutory rules on spousal maintenance only become important when the parties cannot reach an agreement.

A brief search on the history of spousal maintenance suggests that as early as 1780 BCE, a man was required to pay coins to his wife upon divorce and return the dowry she had brought into the marriage. Among the Romans, it was apparently customary to pay a woman money after a divorce, and I read somewhere that the term “alimony” comes from the Latin verb alere, meaning “to provide for” or “to care for.” During the Middle Ages, canon law applied, under which the Catholic Church considered divorce a sin. Unhappy marriages were annulled, thereby bypassing an official divorce. In those cases, the woman lost her rights and any entitlement to maintenance. If a divorce did occur, the man was obliged to provide for the ex-wife’s necessities under penalty of excommunication.

Although liberal movements in the 19th century made divorce easier, it was initially only possible in cases of misconduct by a partner. Maintenance was strongly tied to marital misconduct. A man had to pay maintenance if he misbehaved, while a woman who misbehaved lost her entitlement to receive it. The question of fault in divorce cases disappeared in the 1970s, when it was established that men could also be eligible to receive maintenance from a woman. After all, allowing only women to claim maintenance constituted gender discrimination. In the 1990s, the duration of maintenance was limited to twelve (12) years. Although in the Netherlands the twelve-year term was reduced to five (5) years at the beginning of 2020, such a legal amendment has not yet occurred in Curaçao.

In fact, the Supreme Court of the Netherlands overruled the Court of Justice of Aruba, Curaçao, Sint Maarten, and Bonaire, Sint Eustatius, and Saba last March after the Court had, in 2019, determined ex officio that the man’s maintenance obligation to the woman should be limited to five (5) years. This concerned a case in which the Court first found that the man, due to a conflict with the woman, had deliberately allowed the failure of a successful business that the ex-partners had jointly maintained for many years. The woman found it hard to accept the Court’s opinion that she—who had ensured the company was thriving—should be able to start another successful business to support herself. Her age or lack of education, the Court argued—unlike the Court of First Instance—did not constitute an obstacle. Considering the man’s advanced age, the Court ex officio limited the duration of the maintenance obligation to five years. The woman successfully appealed this decision to the Supreme Court, which ruled her complaint was justified.

The law grants the judge the authority to award maintenance “at the request of one of the spouses” under specified conditions and within a set term. However, the case documents showed that neither the woman nor the man had requested to tie a term to the maintenance obligation. Therefore, the Court’s decision to limit the man’s payment to five years contravened the law.

It follows that it is indeed possible to request a limitation on the duration of spousal maintenance. In April 2020, the Court ruled that the man—under the law—had the authority to amend or supplement his original requests on appeal. This concerned a case in which the man, in incidental appeal, added a request to limit the duration of spousal maintenance. The admissibility of such a request must, if necessary, be assessed in light of the appellate court’s corrective function. According to the Court, the limits of admissibility are exceeded if the amendment unreasonably delays the proceedings and/or unduly complicates the defense. In this recent case, that was not the situation.

Limiting maintenance by the judge generally has a definitive—and therefore significant—effect. This is why the Court imposes high requirements on the obligor’s duty to provide evidence. The maintenance obligor must provide accurate information demonstrating that termination after a certain period is justified. It is therefore strongly recommended, if you plan to file a request to limit the duration of spousal maintenance, to bring this clearly to the judge’s attention. I am happy to assist you with this. For more information, you can contact me without obligation.

This month marks four years since I opened the doors of my own law firm, according to a notification from the social media platform LinkedIn. Without that notification, this milestone would undoubtedly have passed me by completely, as it is the busiest period of the year at the office. With the summer holidays behind us and the Christmas holidays in sight, it is noticeable that the number of inquiries in my practice regarding substitute consent to travel or move abroad increases.

A minor traveling abroad without supervision—or with the supervision of only one of the two parents holding parental authority—must demonstrate that permission for the trip has been given by the (other) parent(s) with authority. If the minor has only one parent with authority instead of two, naturally only the consent of the (sole) parent is required. In such a case, it is useful to have an extract from Kranshi and/or an extract from the parental authority register on hand to show at (border) control that there is only one parent with authority.

If you wish to travel or move abroad with your minor child(ren) but do not receive consent from the other parent with authority, you can turn to the civil court, which in disputes regarding joint parental authority will make a decision that it considers desirable in the best interest of the children. That’s right—the judge prioritizes the interests of the children, not those of either parent. That said, depending on all circumstances, other interests can outweigh the children’s interests.

For example, last year a mother living in Aruba requested substitute consent to go on a roughly nine-day vacation with her minor child to the Dominican Republic. The court ruled that the mother had sufficient interest in her request and had sufficiently demonstrated that she had made reasonable efforts to obtain the father’s consent for the minor to travel abroad. The father, however, refused consent. The court saw no reason to assume that the mother would withhold the minor from his parental authority or fail to return to Aruba and granted the mother permission to travel abroad for the requested period.

A mother in Aruba who, earlier this year, requested urgent substitute consent in summary proceedings to move with her minor child to New York was less fortunate. The father filed a counterclaim requesting that he henceforth be solely responsible for parental authority over the minor. Because this was an urgent procedure, the judge had to assess, based on the parties’ submissions alone and without further investigation or evidence, whether the claims in a potential main procedure had a sufficient chance of success to justify granting the requested relief in advance.

In weighing the interests, the judge considered all relevant circumstances, including but not limited to the necessity to emigrate, how well thought out and prepared the emigration was, the alternatives and measures offered by the emigrating parent to mitigate or compensate for the effects on the other parent, the parents’ ability to communicate and cooperate, the division of care tasks and continuity of care, the frequency of contact between the minor and the other parent before and after the move, the minor’s age, their opinion, and the degree to which the minor is rooted in their environment or accustomed to moves, as well as the extra costs of maintaining contact after emigration.

However, the Aruban mother wishing to move to New York with her minor child was denied substitute consent. The father’s request for sole parental authority was declared inadmissible because it was not suitable for summary proceedings. Although the court understood the mother’s wish and interests in moving to New York—the mother could not find work in Aruba and had secured a job in New York where her parents could provide financial support—the court ruled that the mother’s interests were less important than the minor’s interest in maintaining their current living situation in Aruba. While the mother is free to live her life as she chooses and select her place of residence, that freedom is limited by the interests of the minor, which must not be unreasonably compromised. The minor had lived almost their entire life in Aruba, was rooted there, and their entire social life and schooling took place in Aruba. The court concluded that moving abroad would constitute an unreasonable infringement on the minor’s interests. That the minor was resilient enough to handle a move and school change did not alter this assessment. It was uncontested that the minor was very attached to the father and his family, and that the father had always cared well for the minor. There was no reason to believe that it would be better for the minor to move to New York rather than remain in Aruba, given that the child was developing healthily and age-appropriately. The mother had not sufficiently demonstrated why her wish to move with the minor should outweigh the father’s and minor’s interest in maintaining uninterrupted physical contact. The court considered contact via FaceTime insufficient to mitigate the consequences of the relocation on the parent-child relationship.

It is crucial, when requesting substitute consent to travel abroad with a minor, to prepare adequately, provide a well-founded request, and ensure proper communication and alternative visitation options between the minor and the other parent.

If you wish to travel abroad with your minor child and do not receive consent from the other parent, or if you are faced against your will with a request for permission to move or travel abroad from the other parent holding authority over your minor child, you can contact me at eisden@true-lawyers.com. I will review your specific circumstances and wishes with you and work together toward an appropriate solution.

Did you know in which ways a marriage can end? Marriage ends by (i) death, or (ii) if a missing person who is presumed dead or has been declared deceased is still alive on the day the surviving spouse enters into a new marriage or registered partnership, (iii) through divorce, and (iv) through annulment of the marriage after a legal separation (“scheiding van tafel en bed”).

Not too long ago, I filed an introductory divorce petition. Because there were minor children involved, I primarily requested the court to grant a divorce and, subsidiarily, requested the court to grant a legal separation. Finally, I asked the court to proceed with the division of the dissolved marital community, appointing a notary before whom the division would take place. Contrary to all expectations, the woman (who appeared in court without a lawyer) opposed the divorce. Although she did not speak Dutch, Papiamentu, or English fluently, she clasped her hands together and pleaded with the judge in broken Papiamentu: “Un chèns mas, un chèns mas, un chèns mas” (“One more chance, one more chance, one more chance”). She argued that the marriage was not irretrievably broken and that a divorce was not in the best interests of the minor children.

The judge ultimately ruled that a divorce at the request of one spouse cannot be granted against the will of the other spouse if the marriage produced one or more children who are still minors, unless the spouses have lived continuously and durably separated for at least three years. Durable separation exists when one spouse desires a break in the marital cohabitation so that each leads his or her own life as if not married to the other, and this state is intended to be permanent by at least one of them. Because both the man and the woman indicated in court that they still lived in the same house, the judge concluded that there was no durable separation. Therefore, the request for divorce could not be granted. The subsidiary request on behalf of the man, for legal separation, was granted by the judge as uncontested and in accordance with the law.

Many of you may have heard of this, but are not exactly sure what it means to be legally separated. A legal separation is a way to put an end to cohabitation without ending the marriage itself. The legal separation, or divortium quoad mensam et thorum, dates back to canon law and was introduced as an escape mechanism for marriages in which all marital life had become untenable. At the time, the ecclesiastical judge was authorized to determine whether there were grounds for a legal separation. Later, in the nineteenth century, legal separation became useful for those who opposed divorce for religious reasons. Those who did not wish to divorce, but still sought the possibility of reconciliation, also opted for legal separation.

Special grounds for granting a legal separation—besides the grounds for divorce that could also lead to legal separation (e.g., irretrievable breakdown)—included “excesses, abuse, and gross insults committed by one spouse against the other” (Article 288 of Book 2 of the Civil Code, old version). For those who did not want to publicly air their dirty laundry, legal separation could also be granted at the joint request of the spouses, “without the need to state a specific cause.”

The legal consequences of a legal separation largely correspond to those of a divorce. The duty to cohabit ends, and the marital property community between spouses is dissolved. The law also regulates additional legal consequences, relating to children, maintenance, and continued use of the marital home.

Some people—particularly those who wish to abolish legal separation—whisper that spouses are still free to live apart even without the law providing for legal separation. This argument does not hold, as the freedom for spouses to live apart is precisely recognized under the legal framework of scheiding van tafel en bed. Furthermore, legal separation addresses the desire that the legal relationship between spouses—especially concerning their children—is regulated in cases of long-term non-cohabitation. I therefore strongly recommend choosing a properly regulated legal separation rather than informal non-cohabitation.

If you are considering a separation, there are minor children involved, and you have questions about a (divorce) legal separation (scheiding van tafel en bed), please feel free to contact us at eisden@true-lawyers.com.

Relieved, my client takes a deep breath. We stare at a statement of proceedings indicating that the parties have reached an agreement to end the case in accordance with the attached parenting plan, that the requests are withdrawn, and that each party bears their own legal costs.

The man, who has no social safety net on the island, has felt unhappy since his marriage to the Curaçaoan beauty fell apart three years ago. He harbors a deep-seated desire, after living and working on the island for fifteen years, to return to the Netherlands. With the statement of proceedings in hand, nothing stood in the way of him moving back to the Netherlands with his children—a long-cherished wish now on the verge of becoming reality.

Earlier, the judge had denied in summary proceedings the request for substitute consent to relocate to the Netherlands. Consideration was given to the fact that the minors were born and raised in the Curaçaoan society. Moving to another country is already a significant change, but even more so because it would mean the minors would no longer have near-daily physical contact with their mother as they do now. The judge also took into account that the man had a job locally while he had no substitute employment in the Netherlands, meaning he would, for the time being, be dependent on family or social benefits for his livelihood. At the time of the summary proceedings, the circumstances were thus not compelling enough for the judge to rule that the man’s decision to emigrate needed to be realized at that moment.

Now, in the parenting plan attached to the statement of proceedings, topics regarding how the parties will exercise parental authority over the minors before and after the man moves to the Netherlands are addressed. For example, it is agreed that the children must call their mother daily at a set time via videocall.

The woman was initially in no way willing to cooperate with the man’s plan to relocate with the children to the Netherlands. To lose as little time as possible, I simultaneously filed, along with the summary proceedings, a main case request for substitute consent for relocation with the children to the Netherlands (and also for changing the minors’ primary residence), taking into account the chance that the summary proceedings request might be denied. This ensured that a hearing date for the main case would not be delayed too long if the summary request was rejected. After all, the man wanted to move during the Christmas holidays, as his original plan to move in the summer had been thwarted by the judge’s denial in summary proceedings.

That the parties reached an agreement without a court order was thanks to the judge, who steered the parties in the right direction with his creative suggestions. During the first oral hearing of the request for substitute consent, the judge instructed the parties to meet at a neutral location to discuss three detailed proposals from the man regarding interaction between the children and the woman after the relocation to the Netherlands. The judge also cautiously indicated to the woman that the man had the right to build a (new) life in another country. The door to his new future was thus not completely closed, despite the woman’s initial reluctance.

Although the parties did not immediately reach an agreement regarding visitation schedules and other important matters, such as the amount of monthly child support, the woman eventually informed the children—without obligation—that the move to the Netherlands with their father would take place. When the judge learned of this, he expressed his great pleasure that the parents were able to find a solution together, which was extremely valuable for all involved. The requests for substitute consent and change of primary residence could be withdrawn, leaving only the requests regarding care and visitation arrangements (distinguished into periods before and after the relocation).

However, in our opinion, the judge placed a great deal of trust in the positive outcome, and the man was not willing to withdraw his case until he had the signed consent forms in his possession. Eventually, both parties filed a petition requesting a second and final hearing. The judge did not automatically grant the request for a second oral hearing, as his schedule was busy and there was little court availability in the short term. Therefore, the judge gave the parties an extraordinary instruction to hold a “four-way meeting,” promising to find a slot in his overbooked schedule if the parties conducted such a meeting.

The four-way meeting ultimately proved successful, as both parties realized that the relocation could no longer be blocked. They were also aware that compromise was necessary, thanks to the proverbial “pinpricks” the judge had subtly and carefully administered during the first oral hearing.

In short, this was a case in which, thanks to a proactive and decisive judge, the right questions, appropriate instructions, and small nudges led the parties to come together at the sharp end. Reflecting on why achieving a joint solution was so valuable according to the judge, I believe the real harm occurs the moment parties end up in court. It is reassuring to know that even at that stage, it does not have to be too late. Of course, all parties have a role and responsibility to play in that process.