A usage fee is financial compensation that can be requested when one of the former partners continues to live in the home that is jointly owned by both parties. The other co-owner cannot then make use of the home and does not have the enjoyment of their co-ownership.

On 28 May 2025, the Court of Appeal in The Hague ruled on this matter (ECLI:NL:GHDHA:2025:1132).

Facts and legal questions

In this case, the parties own a house that belongs to both of them. The man continued to live in the house during the divorce proceedings and also after the divorce. He paid the mortgage instalments during that time. Since the house is jointly owned, the woman should also have paid half of the mortgage payments. Can the man recover half of the mortgage payments he made from the woman? Can this be offset against other claims?

It may take a long time before the court rules in a case. If a decision needs to be made urgently, the parties can apply for interim relief. In interim relief proceedings, a ruling is made at short notice that applies until the court has ruled on the main case.

In its decision, the Court of Appeal in The Hague ruled in the preliminary relief proceedings that the man must pay spousal support to the woman. In calculating the amount of spousal support, the court took into account the fact that the man pays the mortgage instalments. The court ruled that the man cannot recover half of the mortgage payments he has made from the woman in the preliminary relief proceedings.

In the proceedings on the merits, the court also determined the amount of spousal support to be paid by the man to the woman. This did not take into account the mortgage payments made by the man. The man appealed against this ruling, arguing, among other things, that the woman should pay half of the mortgage payments he had made.

On appeal, the woman argued that the repayments made by the man should be offset against a usage fee.

As indicated, a usage fee is financial compensation that can be requested when one of the former partners continues to live in the home that is owned by both of them. The amount of the compensation can be calculated in various ways, such as on the basis of a percentage of half of the surplus value of the home or half of the monthly costs, or on the basis of the points system of the Rent Assessment Committee. This takes into account reasonableness and fairness, as well as other factors such as the income of the parties, whether there is any surplus value, who pays the costs, and the duration of the use.

In the proceedings before the Court of Appeal in The Hague, the woman did not request a usage fee, either in the first instance (the proceedings before the District Court) or on appeal (the proceedings before the Court of Appeal). A usage fee can only be awarded if it is claimed. The court of appeal cannot therefore offset the mortgage repayments made by the man for the woman against a usage fee to which the woman is entitled.

The court did not assess whether the repayments made by the man could be (partially) offset against the usage fee that the man must pay to the woman, as the woman did not claim a usage fee at an earlier stage of the proceedings.

This means that from the date of registration of the divorce decree in the civil registry (i.e. the date on which the parties were divorced) until the transfer of the house to himself or a third party, the man can reclaim half of the repayments he made from the woman, as the woman, as co-owner, should have paid half of these costs.

Conclusion

A court can only award what the parties have claimed in the proceedings. It is therefore important to assess which claims should be submitted in divorce proceedings. This depends on all the circumstances of the case, such as which matrimonial property regime applies, whether the parties have drawn up a prenuptial agreement, and which spouse paid costs during the marriage. It is always wise to request a user fee if you are unable to live in your own home for a longer period of time and your ex-partner is able to do so. In addition, the claims must be well substantiated.

If you or your partner intend to end the relationship, it is wise to consult a specialist solicitor to determine whether the facts and circumstances give rise to (additional) claims. At SPEE Solicitors & Mediation, we have many years of experience in family law. Please feel free to contact us for expert advice! Contact page SPEE advocaten & mediation.