ប្រាក់ឧបត្ថម្ភ​ដែល​មាន​ឥទ្ធិពល​ថយ​ក្រោយ​នៅ​ក្នុង​ប្រទេស​ហូឡង់៖ កាលបរិច្ឆេទ​ចាប់ផ្តើម ការ​សង​វិញ និង​បំណុល​ដែល​ជំពាក់

Retroactive alimony in the Netherlands is maintenance that is set, increased or reduced with effect from a date before the court’s decision. Under Article 1:402(1) of the Dutch Civil Code (Burgerlijk Wetboek, BW) the court sets the date from which maintenance is owed or ends, and that date may lie in the past; the exception is that courts are cautious about a retroactive reduction, because it creates a duty to repay money already spent (Supreme Court, 25 April 2014, ECLI:NL:HR:2014:1001).

In practice the court usually starts from the date the petition was filed. Below we explain when a court goes back further, how an existing order is changed with effect from the past, what happens to overpaid maintenance and how arrears are collected. For the basic rules on entitlement and calculation, see our មគ្គុទ្ទេសក៍ពេញលេញសម្រាប់ការថែទាំកូន និងប្តី/ប្រពន្ធនៅប្រទេសហូឡង់.

What does retroactive alimony mean under Dutch law?

It covers two different situations: a first-time determination with an earlier start date, and a change of an existing order with effect from the past. Both are about retroactivity, but different provisions apply.

In a first-time determination no maintenance has been set yet, and the court decides the amount and the start date under Article 1:402 BW. In a change case an order or agreement already exists, and one party asks the court under Article 1:401 BW to raise, lower or end it from an earlier date.

Retroactive alimony is also different from arrears. Arrears arise when maintenance was already owed under an order or agreement and simply not paid; the entitlement is not in dispute, only its collection.

From which date does maintenance run?

The court decides. Article 1:402(1) BW requires the court that sets, changes or withdraws maintenance to fix the date from which the amount is owed or stops being owed, and it is bound neither to the date of its decision nor to the date the applicant asks for.

In a first-time determination the usual starting point is the date the petition was filed, because from then on the other party knows a claim is coming. Going back further requires something more, such as a clear written demand for maintenance, correspondence warning the other party, or circumstances that made it impossible to file earlier.

Can an existing maintenance order be changed with retroactive effect?

Yes. Under Article 1:401 BW the court can change or withdraw an order or agreement, and under Article 1:402 BW it chooses the date from which the change applies, which may be before the decision.

ការផ្លាស់ប្តូរកាលៈទេសៈ

Under Article 1:401(1) BW an order or agreement can be changed if, because of changed circumstances, it no longer meets the statutory criteria of need and capacity to pay. Examples are loss of a job, a substantial fall in income, a new maintenance obligation, long-term incapacity or a material rise in the recipient’s income. The change must be more than temporary and backed by documents.

A payer whose income fell in January but who filed only in October should not assume the reduction will run from January. Courts sometimes go back to the moment of the change, especially where the payer informed the recipient straight away in writing; silence works against the payer.

ការបញ្ជាទិញដែលផ្អែកលើព័ត៌មានមិនត្រឹមត្រូវ ឬមិនពេញលេញ

Under Article 1:401(4) BW a court decision can be changed if it never met the statutory criteria because it was based on incorrect or incomplete information, such as undisclosed income or misleading business figures. Retroactivity to the original start date is then more readily available, because the amount was never correct.

Maintenance agreed between the parties

An agreement in a divorce settlement agreement (echtscheidingsconvenant) can also be changed, but where the parties ignored or grossly misjudged the statutory criteria the threshold is different (Article 1:401(5) BW). If the agreement contains a non-modification clause under Article 1:159 BW, the court can only set it aside after so drastic a change that holding the applicant to it would be unreasonable (Article 1:159(3) BW).

Does overpaid maintenance have to be repaid?

Not necessarily. In its ruling of 25 April 2014 (ECLI:NL:HR:2014:1001) the Supreme Court (Hoge Raad) held that a court must use its power to change maintenance with retroactive effect cautiously, and must assess of its own motion whether the recipient can reasonably be required to repay what was overpaid.

The reason is practical: maintenance is meant to be spent on rent, groceries and the children. If a court lowers the amount from a date twelve months back, the difference becomes a debt that the recipient must pay from money that no longer exists.

What the court weighs

• The size of the amount compared with the recipient’s income.
• Whether the maintenance was spent as ordinary income or partly saved.
• Whether the recipient could foresee the reduction, for example because the payer announced it in writing.
• Whether either party delayed the proceedings.
• For child maintenance, the effect of repayment on the household where the child lives.

A court that grants a retroactive reduction can soften the result in several ways: a later start date than requested, repayment of only part of the overpaid amount, no repayment at all, or repayment in instalments.

Moderation because of the recipient’s conduct

Article 1:399 BW allows the court to moderate maintenance between blood relatives and relatives by marriage where the recipient’s conduct means maintenance cannot reasonably be required in full; it does not apply to the costs of care and upbringing of minor children. For spousal maintenance there is no general power to reduce the amount for bad behaviour. Our article on ដែនកំណត់នៃភាពសមហេតុផលក្នុងការវាយតម្លៃឡើងវិញអំពីការថែទាំ sets out where the boundaries lie.

How do indexation and limitation affect past maintenance?

Anyone reconstructing what was owed over a past period must apply the annual statutory indexation and check the five-year limitation period. Both are often overlooked.

Under Article 1:402a BW every maintenance amount set by a court or agreed between parties is adjusted by law on 1 January each year, by a percentage set by the Minister of Justice and Security and published in the Government Gazette (Staatscourant). No decision or reminder is needed, so a payer who kept paying the original amount for years is in arrears without realising it. Look up the percentage for each year of the period.

Under Article 3:308 BW a claim for periodic payments such as maintenance becomes time-barred five years after the day following the day it fell due. Limitation is interrupted by a written demand or a written notice in which the creditor unequivocally reserves the right to payment (Article 3:317 BW), so keep copies of every demand.

Payers often point to amounts paid directly for the children or the household, such as school fees or mortgage instalments. Courts take these into account only if the payer shows they were paid to discharge the maintenance obligation, not as a voluntary extra.

How is maintenance owed for a past period collected?

A maintenance decision is an enforceable title. Once it has been served, a bailiff can seize wages, benefits and bank balances without a further court decision, and a retroactive award is enforced in the same way as current maintenance.

The National Maintenance Collection Agency (Landelijk Bureau Inning Onderhoudsbijdragen, LBIO) can take over collection if an enforceable order exists and payments have stopped. This is free for the recipient; the debtor pays a surcharge on top of the arrears. The LBIO also handles collection where one party lives abroad. Non-payment of maintenance is a civil matter, not a criminal offence; where the obligation itself is disputed, see នៅពេលដែលអ្នកមិនចាំបាច់បង់ប្រាក់ឧបត្ថម្ភ.

How can provisional measures prevent a retroactivity dispute?

By fixing a temporary maintenance amount and a clear start date while divorce proceedings run. Provisional measures (voorlopige voorzieningen) can be requested before or during the divorce and are dealt with quickly.

They can also decide who stays in the family home and settle care arrangements until the final decision. Our article on វិធានការបណ្ដោះអាសន្នក្នុងដំណើរការលែងលះ explains how they work. Waiting for the final decision and then asking the court to reach back is harder and less certain.

What if one party lives abroad?

Three questions must be answered separately: which court has jurisdiction, which law applies and how the decision is enforced abroad. The answer to the retroactivity question depends on the applicable law, not on Dutch procedure.

Within the EU, Council Regulation (EC) No 4/2009 governs jurisdiction and enforcement; the creditor can usually go to the court of their own habitual residence or that of the debtor. The applicable law follows from the 2007 Hague Protocol, which in principle points to the law of the creditor’s habitual residence. Outside the EU, including in relation to the United Kingdom since Brexit, the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides for recognition and enforcement through central authorities.

What should you check as the paying parent or ex-spouse?

• Notify the recipient in writing as soon as your circumstances change, and propose an adjustment.
• Keep paying the existing amount, or as much as you can, while the matter is pending.
• File your request under Article 1:401 BW promptly; the filing date is often the earliest realistic start date.
• For an order based on wrong information (Article 1:401(4) BW), collect tax assessments, annual accounts and bank statements first.
• Check that you applied the annual indexation under Article 1:402a BW for every year.
• Expect that even a successful reduction may not lead to repayment of what you overpaid.

What should you check as the receiving parent or ex-spouse?

• File your claim, or ask for provisional measures, as early as possible.
• Send a written demand for unpaid maintenance to interrupt the five-year limitation period (Articles 3:308 and 3:317 BW).
• Check whether the indexation was applied; the shortfall can be claimed for up to five years.
• If the payer asks for a retroactive reduction, give the court a full picture of your finances so it can assess repayment.
• Ask the LBIO to collect if payments stop under an enforceable order.

For when the obligation ends altogether, see នៅពេលដែលកាតព្វកិច្ចថែទាំឈានដល់ទីបញ្ចប់, and for the wider picture our overview of បញ្ហាផ្លូវច្បាប់ដែលការលែងលះ ឬការបែកគ្នាកើតឡើង.

What can we do for you with retroactive alimony?

របស់​យើង divorce and family lawyers act for both payers and recipients:

• We assess which start date is realistic for your claim or reduction under Article 1:402 BW.
• We calculate arrears for past years, including the statutory indexation.
• We send a demand that interrupts the limitation period.
• We file or defend a request to change maintenance under Article 1:401 BW, including on repayment.
• We request provisional measures during divorce proceedings.
• We handle cross-border claims under Regulation 4/2009 and the Hague instruments.

សេចក្តីសង្ខេប

• The court sets the start date of maintenance and may choose a date in the past (Article 1:402 BW); usually it is the filing date.
• An order can be changed retroactively for changed circumstances or wrong information (Article 1:401 BW).
• Courts are cautious about repayment of overpaid maintenance (ECLI:NL:HR:2014:1001).
• Maintenance is indexed every 1 January, and unpaid instalments become time-barred after five years.
• Act early: notify in writing, file promptly and use provisional measures.

សំណួរ​ដែលគេ​ច្រើន​សួរ