When determining child support, the question is often discussed as to which living expenses can be taken into account when determining the financial capability of the obligated party. Should a fixed amount be taken into account, as advised by the Expertgroep Alimentatienormen, or should the actual living expenses be taken into account? The Supreme Court recently ruled on this issue.

Since 2013, a lump-sum calculation system has been chosen for the calculation of child maintenance. This is to increase the predictability of child support and to minimise the number of modification procedures.

Both parents are obliged to contribute to the costs of the care and upbringing of their child in proportion to their means. The so-called "Trema norms" are used to determine child support. These are non-binding guidelines drawn up by the Expert Group on Alimony. Judges do not easily deviate from these guidelines.

From the Trema norms it follows that in the calculation of the financial capability of the obligated party to pay alimony, the living expenses should be based on 30% of the net disposable income.

In jurisprudence, the question whether the lump-sum calculation system can be deviated from in case of lower housing costs, is increasingly being addressed.

In the case on which the Supreme Court had to rule here, the mother complained that the Court of Appeal, when determining the alimony, had wrongly assumed the fixed housing costs. She took the position that the actual living expenses of the father should be taken into account because they were considerably lower than the fixed amount. The father had chosen to keep his housing costs consciously low by investing the surplus value of his previous house in his new home. As a result, he had a housing cost of only € 95,- while the fixed housing cost was € 678,30 per month.

According to the Court of Appeal, the father's choice to arrange his own financial position in the way he wished did not mean that there was such an exceptional situation that the flat-rate system had to be deviated from.

The Supreme Court saw this differently.

The Supreme Court considered that, in principle, using a fixed housing expense is not contrary to legal standards.

However, the moment the parents are unable to provide for the needs of the child and there are indications that the actual living expenses of (one of) the parents is permanently considerably lower than the fixed amount, the judge will always have to examine whether the financial capacity of that parent, if the actual living expenses were to be applied, would lead to a higher maintenance contribution for the child. If that is the case, the judge should impose the higher contribution, or at least motivate why, given the circumstances of the case, there is no reason to do so.

As the Court of Appeal had not done so in this case, the Supreme Court quashed the judgment and referred the case to another Court for further consideration and decision.

Therefore, each case should be examined critically to see if calculating with a fixed living expense does justice to the situation.

Do you have any questions about child support or would you like to request the determination or modification of child support? Please contact us, without obligation. We will be happy to assist you.