Children have a certain level of prosperity during their parents' relationship. The intention is that they will continue to maintain this prosperity when the parents separate. Child maintenance is calculated on the basis of the so-called "Trema norms". The need of a child for a contribution of the parents is determined based on the income the family had to spend, the number of children in the family and their age. Subsequently, a so-called ability-to-pay calculation is used to determine the extent to which the child's needs must be met by both parents. This limits the maintenance obligation. The starting point is therefore that the income of the parents is taken into account, but that is not always the case.

Facts

The Arnhem Court of Appeal heard a case in which the parties had broken off their relationship eight months after the birth of their daughter. They lived together in a house that had been made available by the husband's parents. The wife left with the parties' daughter to go to her parents. The man filed an application with the court for joint custody (although he had acknowledged his daughter) and for the establishment of a visitation arrangement. The woman then submitted an independent application for child maintenance of €300 per month. According to the husband, he was only able to pay €25 per month. The court granted the woman's request, which prompted the man to appeal.

Judgment of the Court of Appeal

The Court of Appeal ruled as follows:

"Under Article 1:404 paragraph 1 of the Dutch Civil Code, parents are obliged to provide for the costs of caring for and educating their underage children according to their means. It follows that the maintenance obligation at issue is limited, on the one hand, by the needs of the minor and, on the other hand, by the capacity of the parents.

In order to determine the need for a contribution towards the costs of caring for and bringing up children, a fixed system has been developed in cooperation with the NIBUD, based on CBS figures and laid down in the report 'Kosten van kinderen ten behoeve van vaststelling van kinderalimentatie'. Based on the net disposable family income, and the number and age of the children belonging to the family, the need of the concerning child is determined by means of a table.

The above system is part of the report Alimentation Standards, published by the Expert Group Alimentation Standards. The recommendations included therein have been drawn up with a view to uniform application of the law, but do not constitute a right within the meaning of Article 79(1)(b) of the Judicial Organisation Act. The court is free to deviate from it in a particular case (cf. Supreme Court 4 December 2015, ECLI:NL:HR:2015:3478).

In the present case, it has been established that the minor lived with the parents in ample prosperity, but also that this prosperity was not the result of the parents' own income. During that period, the parties were, as is not in dispute, largely supported by the husband's parents. For instance, the house where the parties lived together had a WOZ value of over €800,000 but no rent was actually paid for it. The man's parents also provided the parties with a car and clothes, for example. The man's wealthy parents failed to collect their debts from the man, made gifts to the man and the woman (and the minor) in cash and/or kind and paid almost all (fixed) costs for the parents. In short, they largely provided for the livelihood of their son and thus of the woman and the minor and in fact determined the level of prosperity of this family.

The determination of the needs of a minor who has lived with his parents in a family context is, in principle, aimed at allowing the child to continue, as much as possible, to enjoy the same standard of living after the parents' break-up. In the opinion of the court of appeal it is in principle not important where this welfare comes from. Insofar, in this case the fact that this prosperity was not achieved by the parents themselves is insufficient reason not to use the prosperity of the (then) family as a basis for determining the minor's need. In this case, however, the peculiarity arises that this wealth, in view of the manner in which it was realised, cannot or can hardly be translated into the lump-sum system for determining the need of a minor. After all, a net family income from which a need can be derived cannot really be distilled. Moreover, the minor only lived with her parents in this ample wealth for a very short period after her birth of about eight months. In the opinion of the court of appeal, this is therefore an (atypical) case in which the lump-sum system as referred to above is not automatically suitable for the determination of the need of the minor.

On behalf of the wife it was remarked at the hearing that it is not possible to determine the minor's needs precisely, but that the wife, considering the prosperity in which the parties lived, assumes a (reasonable) need for the minor of €700 per month, including an amount of €150 per month for the average net costs of childcare (estimated by her). When asked, the husband stated that he assumes a (reasonable) need for the minor of maximum €300,- per month including the net costs of childcare of approximately €150,- per month. The court of appeal is of the opinion that the woman has insufficiently substantiated her alleged high need of €700 per month. On the other hand the Court does not consider the amount of € 150,- per month mentioned by the husband (the need mentioned by the husband excluding the costs of childcare) realistic, considering the undisputed ample wealth in which the woman lived at the time. All things considered, the Court will in all reasonableness assume a need of €500,- per month including the above-mentioned amount for childcare costs.”

The parties' share of the need

Next, the parties' share of the need had to be determined in proportion to their financial capacity. After all, the parties are jointly responsible for the upkeep of their daughter. According to the Court of Appeal, the woman, who was self-employed, had not sufficiently substantiated her actual income with relevant documents. There were also no facts and circumstances that would lead to the conclusion that the woman could not reasonably be required to bear part of the daughter's needs. The husband had substantiated his current income situation. In this context, it was established that the man's parents were still paying his expenses and that the man had income from assets. The man had also rejected at least one offer of employment in his field, partly because he wanted to give his company, which had been making losses for years, another chance. According to the Court of Appeal, while the man had a good education and work experience and there were no barriers to the labour market, he actually chose to continue with the unprofitable business and be financially dependent on his parents instead of supporting himself. However, in the opinion of the court of appeal, this choice should not be at the expense of the maintenance obligation he has as a parent towards his child. There was nothing to prevent the man from being in paid employment and, if necessary, from drawing on his current or future assets in order to provide for (part of) his daughter's needs. The court of appeal saw cause to determine in all reasonableness that the parties should each take care of half of the daughter's needs. This means that a contribution of €250 per month was imposed on the husband.

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