Het recht van kinderen op levensonderhoud: een gedeelde zorg

Abstract

Research indicates that the current child maintenance system in the Netherlands suffers from inadequacies. An important indication is the fact that many Dutch parents resort to the courts in order to resolve their differences concerning the child maintenance payment. Another indication relates to the high number of parents with care who apply to the National Maintenance Collection Agency (LBIO) to enforce the child maintenance payment by the liable parent. In addition to this, Dutch municipalities are dealing with considerable numbers of recovery claims each month. The central question of this research is the following: Do the Norwegian and Swedish child maintenance systems provide models that can be transposed into Dutch legislation? The reason for comparing the Dutch child maintenance system with the Norwegian and Swedish systems is that the social structure of these Nordic countries shares essential features with that of the Netherlands, and because both Norway and Sweden have a progressive child maintenance system. The main conclusion is that parts of the Scandinavian systems can be transposed into Dutch legislation, concerning the duty and the right to child maintenance, the determination of child maintenance and the enforcement of the amount. The following recommendations may be formulated for the Dutch child maintenance system based on the research conclusions drawn. A maintenance obligation ought to be developed for a known donor in case this has not been acquired by a consenting partner, as is the case in Norway and Sweden. In addition The Dutch legislator should adopt the example of the Norwegian and Swedish child maintenance systems by providing children beyond the age of eighteen with a conditional right to maintenance. Any child receiving secondary or higher education should be considered to be in need. The Dutch government should establish formal guidelines for assessing child maintenance, for example by issuing a governmental decree. Furthermore, assessing the required amount of child maintenance should be straightforward, depending on a limited number of factors, and it should be based on the needs of children, on the one hand, and the financial capacity of parents on the other. Fixed amounts should thereby be set as standards to guarantee legal certainty. In order to calculate the amount of child maintenance the Dutch government should develop an easy-to-use digital program, and this should be made generally available. When child maintenance can be assessed along formal guidelines and fixed amounts, the assessment may take place by the LBIO in addition to the courts, and it is expected that this will reduce the number of lawsuits. The provision that renders contracts drawn up by a notary public concerning the amount of child support enforceable by law should be executed. In addition, the collection of child maintenance by the LBIO on the basis of a mutual agreement without a writ of execution should be made possible.