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.