Divorce is not just about heartache and hurt feelings. It’s also about money. At best, marriage is also a love affair, but at first glance it is primarily a contract. Many people only realize how far-reaching this contract is and how difficult might be to dissolve the marriage when they “want out”. In legal practice, we often see how little is generally known about marital obligations and the consequences of non-compliance.
Marital duties
The law stipulates that the spouses are obliged to live together, as well as to be faithful, treat each other decently and support each other. If a spouse breaches (these) marital obligations, this can constitute a serious marital offense. Even if a married couple can agree on many things, it is not possible to completely undermine essential elements of marriage. For example, it is not possible to make binding agreements about sexual freedom. In specific terms, this means that if sexual freedom has been demonstrably agreed, extramarital affairs are not reproachable in divorce proceedings. However, this only applies as long as both parties want it. So, if one person has changed their mind and wants to resume a monogamous relationship, the other person cannot object. If extramarital sexual contact continues, this may become relevant in any subsequent divorce proceedings.
Divorce due to fault?
Since marriage is a contract, you can get out of it if both agree to dissolve the contract (by mutual consent). However, if only one person wants out of the marriage rather than both, you can make a petition for divorce if you can accuse the other spouse of marital misconduct. Serious misconduct that has led to the end of the marriage. The law lists examples of serious marital misconduct, such as infidelity, physical violence or severe emotional distress. It is important to know that it is not possible to enforce compliance with marital obligations in court. For example, if one spouse violates the duty of fidelity or the duty to live together, it is not possible to enforce in court that the affair must be ended or that the spouse must return home. But it is at least possible to sue for divorce. If you then lose the divorce proceedings (due to serious marital misconduct), this can result in financial disadvantages.
Divorce proceedings in court?
If you are seeking a divorce with the intention that a court should declare that the marriage is divorced due to the sole or predominant fault of the other party, you will always have problems of proof. It is often the case that (only) exactly two people, namely the two spouses, were present. It is usually the case that the perceptions of who let whom down or why the marriage broke down are quite different. Both people will often report diametrically opposed things to the judge in charge. If one has caught the other in flagrante delicto, detective reports, police/hospital reports or witnesses can help (in divorce proceedings).
In this context, it is also interesting to know that contested divorce proceedings that begin with a divorce action can be converted into an amicable divorce at any time. Time and again, when the situation between the spouses has reached a deadlock and a settlement does not appear to be within reach, one of the parties will initiate the proceedings by filing for divorce, without necessarily aiming to carry out long, expensive and exhausting divorce proceedings. The aim is often to get the whole process started and to pressure the other party into a (favorable) settlement.
Post-marital maintenance and fault
It is still often not known that whether and to what extent post-marital maintenance (for the ex-partner) must be paid depends crucially on whether the other party was found to be at fault for the divorce. Only the person whose spouse is solely or predominantly at fault according to the divorce decree will receive “reasonable” post-marital maintenance, which also refers to the previous standard of living. If both spouses are to blame for the divorce, the needy spouse is only entitled to maintenance in accordance with “fairness”. This claim is significantly lower in amount and less attractive.
If both earn roughly the same amount, there will be no post-divorce maintenance claim with or without fault. In summary, in addition to significant differences in income, a divorce case must be won in order for (reasonable) post-marital maintenance to be awarded. This puts pressure on the person who is dependent on post-marital maintenance not to do anything wrong in a marriage that may have been bad for a long time, so that they do not lose their entitlement to maintenance. Conversely, the higher-earning person cannot obtain maintenance themselves, but in the worst-case scenario will have to pay post-marital maintenance for a very long time if the divorce proceedings are lost.
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