In a recent ruling by the Midden-Nederland District Court, Lelystad location, dated 23 July 2024 (https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBMNE:2024:4826), a man was declared bankrupt due to overdue maintenance payments to his ex-partner and their two children. The man and the woman had been in dispute over the consequences of their divorce for many years, and the ruling once again highlights how complicated and devastating post-divorce financial disputes can be. Although the court ultimately ruled that bankruptcy was an appropriate means of finding out whether the husband's debts could be settled, this situation raises important questions about the effectiveness of such a measure and the possibilities of alternative solutions, such as mediation.
The issue: a nasty divorce with financial implications
The case began when the wife, supported by her lawyer, petitioned the court to have her ex-partner declared bankrupt because of unpaid maintenance. The court found that the husband did not object to the claims, but stated that he had insufficient income and assets to pay the debt. Despite his defence, the court decided that bankruptcy was necessary to understand his financial situation and assess whether the husband would be able to pay the claims of the wife and their children. Indeed, through years of court proceedings between the ex-partners, the court recognised a so-called ‘common thread’, i.e. that the husband was not transparent about his financial situation in all these proceedings.
Bankruptcy: a last resort?
The judgment highlights that the court considers that bankruptcy is justified in this context. Nevertheless, it is important to reflect on whether this remedy is always the best solution in this type of case. Bankruptcy is a severe legal instrument that has far-reaching consequences for those involved. It can lead to loss of assets and further escalation of conflicts, which can be especially disastrous in a complex divorce with children. And, of course, it remains to be seen whether the maintenance owed will be paid at all after bankruptcy. After all, in a bankruptcy, as a creditor you also have to deal with preferential creditors, such as the tax authorities and a mortgage lender, who have priority over all other creditors.
Mediation: a constructive alternative
Instead of immediately resorting to such far-reaching means, mediation can offer a much more effective and less destructive solution. Mediation allows both parties to talk to each other in a confidential and safe environment and reach a solution together. This process is less confrontational and allows for agreements to be reached that are supported by both parties, making compliance more likely.
Moreover, mediation can help improve communication between ex-partners, which is invaluable, especially in situations involving children. It prevents children from unintentionally becoming the victims of lengthy legal battles and enables parents to better shoulder their responsibilities towards their children. Moreover, mediation often safeguards the bond between the parents and their children. In other words, the children do not then find themselves in a loyalty conflict between their two parents. Indeed, mediation allows the parents to show their children that they are perfectly capable of resolving their problems with each other, without the children having to play a palpable role in it.
Conclusion: choose mediation
The judgment of the Midden-Nederland District Court shows that the legal route sometimes seems inevitable, but it also raises the question of whether there are alternatives that are less damaging to all involved. Mediation offers a more humane and often more effective approach to resolving conflicts around maintenance. It enables ex-partners to deal with each other in a respectful manner and reach lasting agreements, which is ultimately in the best interests of everyone, and especially the children.
At SPEE advocaten & mediation, we strongly believe in the power of mediation and always advise our clients to consider this path before taking legal action. It prevents escalation, saves costs and ensures better compliance with agreements made. Contact our vFas family law lawyer and mediator to discuss how we can support you in your case, be it mediation or legal assistance.