For learning and amusement, I enrolled some time ago in a course on Personal and Family Law at the Faculty of Law of the University of Curaçao. A few weeks later, I found myself in the lecture hall diligently taking notes while Ms. Ineke de Hondt guided us through Book 1 of the Civil Code with appropriate enthusiasm.
One of the many topics covered during the course was alimony, or the obligation to provide maintenance. As I flipped through my law book, my thoughts wandered to a case in which my client, a successful businessman, was faced with a divorce request. His wife had also approached the Court seeking a monthly amount in spousal support from my client.
His wife was living abroad and had left Curaçao some time ago. At the time she filed her requests, the parties had been separated for over ten years. From the husband’s perspective, there was no question of need on the wife’s part, since many years had passed since the actual separation. Moreover, he had not provided any financial (monthly) support since she moved abroad, and she had been able to support herself all those years. The man therefore could not understand why the wife would suddenly be considered in need in the context of the divorce.
The obligation to pay alimony can, according to law, arise from a marriage or registered partnership (spousal support) or from joint authority, blood, or family relationship (child support or contributions for minors). The law specifies who is obliged to provide maintenance, and the legal standards for determining the amount owed are the needs of the person entitled to maintenance and the financial capacity of the person obliged to pay. A person is considered in need if they cannot provide for their own maintenance, meaning they lack the necessary means and cannot reasonably acquire them. When assessing financial capacity, the judge considers what the person obliged to provide maintenance can reasonably pay. The basis for spousal support is the solidarity established by marriage or registered partnership. The principle for spousal support is that everyone should provide for their own maintenance.
To my client’s great relief, several published court rulings showed that, in cases where a request for spousal support was filed years after the dissolution of the marriage, the financial situation that the entitled spouse had established upon separation was decisive for assessing need. It was not apparent why the reasoning applied in those cases would not be applicable in the present situation, where the marriage had not yet been formally dissolved but the parties had been living apart for over ten years. The fact that the wife claimed a need for spousal support does not automatically mean she is entitled to it. Moreover, she had not provided evidence of her income, for example through bank statements or other documents, to show why her income—through no fault of her own—was insufficient to cover her own needs. She also failed to demonstrate that she had made one or more attempts to fully utilize her earning capacity, which she was obliged to do. It would have been reasonable to provide job applications to show that she had made (unsuccessful) efforts to participate in the labor market.
While Ineke de Hondt had moved on to the topic of ‘parenthood,’ I was still thinking about this case, particularly the day of the oral hearing—the heart (or broken heart) of civil proceedings. The interaction between the judge and the parties plays a central role in exchanging information about facts, emotions, interests, and needs in these matters. However, the dynamics of the oral hearing were not fully realized in this case because the wife, who was represented by her attorney, was not present. Nevertheless, the oral hearing proceeded surprisingly differently than expected. The judge did not proceed to determine the wife’s need nor the financial capacity of my client.
The freshly prepared pleadings were set aside at the judge’s request, who noted that the parties were married in community of property and that a division of the marital estate still had to take place. Furthermore, the judge suggested that my client, as an advance on the division of the marital estate and the resulting settlement, pay a monthly amount to the wife on the condition that she withdraw her request for spousal support. This proposal would effectively end the claim of need by the wife. In addition, the judge believed that this plan would serve as an incentive to promptly finalize the division of the marital estate. My client and the wife’s attorney immediately agreed to this plan, after which a settlement agreement was drafted and signed during the hearing.
As Ms. de Hondt announced it was time for a short break and we left the classroom to get some fresh air and refreshments, I realized that I had personally witnessed that the determination of spousal support is a discretionary power of the judge, not an automatic right. The judge deserves credit for the way he guided the parties to a practical solution. No assessment of financial capacity, no determination of need, no winners, no losers!