In the event of a divorce, the parties have a great deal of freedom to make agreements about spousal support. They must reach agreement on the amount and duration. Even though the parties have determined the spousal support at the time of the divorce, circumstances may change in the future, requiring the spousal support to be recalculated. If the parties cannot reach agreement, one of them can go to court. The court will assess whether there are changed circumstances that justify recalculating the amount of spousal support. If this is the case, the court will recalculate the amount of spousal support, taking into account the current situation.

When getting divorced, the parties can not only agree on the amount and duration of spousal support, but also agree that it cannot be changed in the future. This is called a non-modification clause.

A non-modification clause must be laid down in writing. This can be included in the divorce agreement.

An advantage of a non-modification clause is that it offers certainty. The parties know where they stand with regard to the amount and duration of the spousal support. It is possible that your ex-partner may go to court in the future to change the spousal support. A disadvantage of a non-modification clause is that no one knows what will happen in the future. If something changes that you did not anticipate, a non-modification clause can cause problems.

Can you get out of an agreed non-modification clause for spousal support?

If, after some time, one of the parties wants to change the agreed spousal support despite the existence of a non-modification clause and cannot reach agreement with their ex-partner, they must go to court.

In this case, the court will apply a much stricter test than if there were no non-modification clause. The person invoking the non-modification clause must demonstrate that there has been such a significant change in circumstances that, according to standards of reasonableness and fairness, he or she can no longer be bound by this non-modification clause. This could include becoming completely incapacitated for work or winning the lottery. This can only be the case if there is a complete imbalance between what the parties had in mind when they agreed on the non-amendment clause and what actually happened. These must be circumstances that were unforeseeable. You must demonstrate that you could not have reasonably foreseen that this situation would arise at the time you agreed to the non-amendment clause. It is important to substantiate the parties' intentions when agreeing to the non-amendment clause.

The party wishing to invoke the non-modification clause bears the burden of proving that there are exceptional circumstances that justify this. The courts impose strict requirements on this burden of proof. Invoking such a clause is only permitted in exceptional circumstances.

What does case law say about this?

Case law shows that courts do not often grant requests to break a non-amendment clause. This is understandable, given that the parties agreed to this clause for a reason in the past. They are entitled to expect a certain degree of certainty.

In the following judgments, the request was granted by a court.

• The person liable for maintenance was dismissed seven years before reaching retirement age, as a result of which his income fell sharply. He had worked for the same company for 41 years in a senior position. The court assumed that the person liable for maintenance would no longer be able to earn the same income as before his retirement. The person liable for maintenance demonstrated that he had made every effort to find a new job, but that this had not been successful. It was important in this case that he had only completed secondary education and had performed specialist work. The severance payment received by the person liable for maintenance had to be spread over the years until he reached retirement age. The person liable for maintenance had also received an inheritance. The court did not take this into account, as it was paid out well after the dissolution of the marriage and part of the inheritance had benefited the parties' children (ECLI:NL:RBDHA:2020:10366). 

• - A high amount of spousal support was agreed upon, as the person obliged to pay maintenance had a high income at the time of the divorce. After some time, he received social assistance benefits, as a result of which he was no longer able to pay the agreed spousal support. Maintaining the high amount of spousal support would cause the man to become personally bankrupt. The court therefore suspended the obligation to pay spousal support until the person liable for maintenance is again in a position to pay spousal support (ECLI:NL:RBAMS:2018:4375).

• Due to the personal bankruptcy of the person liable for maintenance, his entire assets were seized, as a result of which he was no longer able to pay the agreed spousal support. The maintenance creditor's argument that bankruptcy can be foreseeable for an entrepreneur and therefore cannot lead to the clause being set aside is insufficient to arrive at a different conclusion (ECLI:NL:GHSHE:2020:1178).

• The maintenance debtor suffered a stroke, as a result of which his income fell considerably. This justifies a recalculation of the amount of spousal maintenance (ECLI:NL:GHARL:2013:8649).
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Can you agree on a non-modification clause for child maintenance?

Parents are required by law to provide for the care and upbringing of their minor children. This applies until they reach the age of 21. Child support must at least meet the legal standards. The amount is calculated based on the needs of the children and the financial capacity of the parents.

The Supreme Court has ruled that if a non-modification clause in child support means that an increase in the parents' financial capacity or the child's needs cannot lead to higher child support, this clause is null and void (ECLI:NL:HR:2019:1689). This content or meaning is contrary to the mandatory provision that every parent is obliged to provide for the costs of the care and upbringing of minor children to the extent of their means.

Insofar as the non-modification clause means that a decrease in the parents' ability to pay or in the child's needs cannot lead to a reduction in child support, this is permissible. An example of a decrease in ability to pay is when one of the parents has a child with his or her new partner. In that case, this parent is financially responsible for several children. So, a non-modification clause that's in the kids' best interests stays valid. It's worth noting that a non-modification clause can be broken if the parent can't support themselves anymore.

Conclusion

Judges are very reluctant to grant requests to break a non-modification clause. How a judge rules depends on all the circumstances of the case and what the person invoking the non-modification clause can prove. It is therefore important to consult with a specialist family law solicitor to determine whether it is wise in your situation to agree to a non-modification clause in your divorce settlement or whether the facts and circumstances may give rise to such a request at a later stage. Agreeing to a non-modification clause can have major financial consequences in the future.

At SPEE advocaten & mediation, we have many years of experience in family law. Feel free to contact us for expert advice! Contact page SPEE advocaten & mediation..