Compound families: the maintenance obligation of stepparents
When does the maintenance obligation for stepparents apply?
In addition to the maintenance obligation that parents have for their children, Dutch law, pursuant to Art. 1:392(1)(c) of the Civil Code, in principle also has a maintenance obligation for the stepparent. However, as a stepparent, under Art. 1:395 BW, you are only obligated to maintain your stepchild(ren) when you meet the following criteria:
You are married or have a registered partnership with your partner;
Your partner's children are part of your family. This is generally the case when the children are registered at the same address in the municipal land records as the stepparent. However, the question of whether a child belongs to the family of the stepparent is interpreted broadly. Among other things, a (young adult) child who studies and lives in rooms also belongs to the family. In co-parenting, for example, children may belong to two families.
Therefore, if the stepparent lives unmarried and without a registered partnership with the parent of the stepchildren, the stepparent in principle has no maintenance obligation.
The stepparent's maintenance obligation does not end once the stepchildren come of age. Stepparents must provide for the study and living expenses of their adult stepchildren until they reach the age of twenty-one. The maintenance obligation does end if the marriage or registered partnership between the stepparent and the parent of the children is broken. Thus, as a stepparent after divorce, you are not obligated to pay child support for your stepchild(ren).
Maintenance obligation in case of joint custody
Even if there is no marriage or registered partnership, as a new partner you can have a maintenance obligation for your partner's children. Pursuant to Article 1:253w of the Civil Code, there is an obligation to provide maintenance if a new partner has joint custody of the children with the parent of the children. This maintenance obligation continues until the children reach the age of twenty-one, just like the maintenance obligation of parents towards their children.
If joint custody is maintained after the breakup of the relationship, the maintenance obligation also continues. If joint custody ends after the breakup of the relationship then the maintenance obligation continues for as long as the custody has lasted, but at the latest until the child reaches the age of twenty-one. For example, if the stepparent has had joint custody of the child for 3 years, the stepparent will still have a maintenance obligation for this child for 3 years after the termination of the custody.
Is the stepparent's maintenance obligation equal to that of the legal/biological parent?
The main rule is that there is no order of precedence between parents and stepparents, i.e., the costs of the children are in principle borne by all maintenance obligors in proportion to their ability to pay.
It follows from case law, however, that there may be circumstances to deviate from this main rule. Factors that weigh into this are:
- The fact that a closer relationship exists between the parent and the child than between the stepparent and the stepchild;
- The carrying capacity of the parent and the stepparent;
- The actual relationship to each of the maintenance obligors.
Thus, in some cases, a judge may deviate from the main rule. The stepparent does not come into the picture only when the parents are deficient in carrying capacity. This means that it is possible that a stepparent will have to pay a larger contribution than the legal/biological parent(s). The court also looks at the contact between the child and the stepparent. How long has the stepparent been in the picture? Also important is whether the child still has contact with his or her legal/biological parent.
Given the above, case law is very casuistic. The judge has a lot of room for customization. In some cases, the stepparent's contribution to the costs of the stepchildren is set at one-third. Sometimes the calculation is made on a pro rata basis. However, it also happens that the stepparent is not considered to contribute to the costs of the stepchildren. In short, litigation on this issue can create unpredictable outcomes. This can be a reason for parents to come to good agreements together in mutual consultation, possibly with the help of a mediator.
Legislative proposal to abolish stepparent's maintenance obligation
Moreover, the question is whether the stepparent's maintenance obligation is still of our time. In 2015, a legislative proposal (Child Maintenance Review Act) was introduced, which proposed to abolish the stepparent's maintenance obligation. However, this legislative proposal had a long lead time and lapsed on May 17, 2022 due to lack of initiators.
Do you have specific questions about the stepparent's maintenance obligation? If so, please feel free to contact me or one of my colleagues.