On 25 April 2025, we wrote an article about the possibilities of having the court set a different amount of maintenance retroactively. In our current contribution, we will take you through the current possibilities.

How does this work again?

Article 1:402 of the Civil Code states that the court that determines, changes or withdraws the amount of spousal support also sets the date on which this amount is due or ceases to be due. In doing so, the court has the freedom to set that date on a day prior to the ruling. The reason for this is that the amount of the maintenance obligation is determined by the moment of the change in circumstances.

According to established case law, the court must exercise restraint in using its power to have the change in the maintenance obligation take effect on a date prior to the ruling, as this may entail a (re)payment obligation. If spousal support is increased retroactively, the person liable for support will immediately have a payment arrears (the amount he/she has underpaid) on the date of the ruling. If spousal support is reduced, the recipient of support must repay an amount to the person liable for support on the date of the ruling (the portion that he/she received but was not entitled to). The person liable for support or the recipient of support may then be faced with a substantial claim.

What does a judge take into account when determining spousal support with retroactive effect?

Case law shows that judges deal with this in different ways, depending on the circumstances of the case. The judge has the freedom to make a decision on this in specific cases at his or her own discretion. Reasonableness and fairness must be taken into account. The judge weighs up the interests of both parties.

In their decision, a judge will take the following matters into account, among others:

• Was the amount of spousal support paid in line with the needs of the person entitled to support?
• What is the extent of the (re)payment obligation?
• Does the person who has to repay the support have the financial means to do so?
• To what extent has the spousal support already paid been spent by the recipient?
• What is the financial position of the parties?
• To what extent could the person who has to repay have prepared for this?
• How much time has elapsed between the change in circumstances and the request submitted to the judge?
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Recent ruling

On 4 November 2025 (ECLI:NL:GHAMS:2025:2986) , the Amsterdam Court of Appeal ruled on the creation of a repayment obligation for overpaid spousal support. As this decision has major financial consequences for the recipient of the support, I will discuss this ruling below.

In this ruling, the parties had stipulated in the 2019 divorce agreement that the man would pay the woman spousal support of €4,750.00 per month and that the amount of spousal support would change if the woman performed more than eight hours of paid work per week. If the woman were to perform paid work for eight hours per week, the fixed spousal support would cover the woman's needs. It later transpired that the woman had been performing paid work for more than eight hours per week for a longer period of time.

Judgment of the Court of Appeal

On the basis of the documents submitted by the man – including witness statements – the Court of Appeal ruled that it was sufficiently plausible that the woman worked substantially more than eight hours per week and that she was paid for this.

The parties did not submit sufficient documents to determine what the amount of spousal support should have been and to determine how much spousal support the man had overpaid. However, the man did demonstrate that the woman had received €41,016.00 in payments outside of her payslip. The woman failed to provide evidence that she did not derive any financial benefit from the extra hours. The court therefore ruled that the woman had received €41,016.00 too much in spousal support.

Offensive behaviour

The man also argued that the woman deliberately created a false reality, among other things by having her brother pay her for the extra hours she worked and by offsetting her wages against the rent (the man was both the woman's employer and her landlord). The woman disputed this with reasons. The court of appeal ruled that the man had not sufficiently substantiated his claims.

The court of appeal considered that only in exceptional cases can grievous behaviour by one of the ex-spouses towards the other lead to the conclusion that it is unacceptable, according to standards of reasonableness and fairness, to require the person liable for maintenance to continue to contribute to the maintenance of the person entitled to maintenance.

The court of appeal ruled that it is plausible that the woman started working more and earning more at some point, but that there is no evidence that she deliberately set up a sham arrangement to secure spousal support.

Spousal support has been spent

Alimony is consumptive in nature and is normally spent. The woman also argued that she had already spent the money she had received and that she could not be expected to repay any amount relating to a period more than five years ago. The court of appeal considered that a repayment obligation should indeed be handled with caution, especially over a longer period and therefore involving a higher amount. In this case, the court ruled that a repayment obligation of this magnitude was justified because, based on the divorce agreement, the woman knew that the spousal support of €4,750.00 per month was intended to supplement a maximum of eight hours of work per week. She could have known that this could have consequences for the amount of spousal support as soon as she exceeded that number of hours. The court sees no reason to moderate the repayment obligation in this case.

Conclusion

Experience shows that judges deal with this in different ways, depending on the circumstances of the case. It must be explained why it is unreasonable to grant or reject this request.

If your ex-partner has submitted a request to the court to determine or change the spousal support retroactively, or if you wish to make such a request – which may result in a payment obligation – it is wise to seek legal advice from a solicitor specialising in family law. It is therefore important what the parties argue during the proceedings.

At SPEE Solicitors & Mediation, our solicitors and mediators have many years of experience in family law and, specifically, in family law for entrepreneurs. Please feel free to contact us for expert advice.