Test case forces government to indexation of alimony

ORANJESTAD — Yesterday’s judgement in a case of a divorced mother against the Aruban government compels the government to publish the indexation percentage on an annual basis.

Although the Civil Code already compelled the government to do so, the latter had not complied.

Attorney at law David Kock instituted the test case on behalf of his client. Not only does the verdict have consequences for his client but also for all who receive alimony and this regards women for the most part. However, the amount determined by the judge with divorce was never adjusted to the indexation percentage. From the verdict, it appears the government never calculated this because they state they cannot determine that percentage. In The Netherlands for example (with the comparable section of law 402a in Civil Code), the Minister of Justice determines the indexation percentage annually. That is determined by the local Central Statistical Office (CBS), which bases this on the average increase of wages and the price level.

However, on Aruba the government states there is no reliable statistical data to calculate that percentage. The defense in this case was therefore that the government referred to force majeure. According to the government, the Aruban CBS has insufficient data on wage developments and employers are not compelled to provide the statistical office with that data. The judge dealt summarily with that defense. According to the verdict, the omission of those percentages simply contravenes the law and yields ‘a liable omission’.

That the government does not expect to receive any reliable data from employers on the wages and if that data proves to be unreliable on collection, it doesn’t mean the government can decide not to enforce that law, says the judge. In addition, the law enables the government to obtain the indexation retrospectively. Therefore, the government is to publish the indexation percentage annually and in the case of the divorced mother, retroactive from January 1st 2007. Nevertheless, the judge gives the government time to make up leeway in collecting and processing the necessary data. However, if the government has not arranged such after July 1st next year, there will be a penalty of ten guilders per day to ensure the government observes the law.

For other divorced persons, the verdict means they too will eventually be put in the right retrospectively on the extra alimony due to indexation. However, that does not necessarily mean that henceforth their ex partners will deposit the owed amount into their bank accounts. Although those who do not receive their alimony can report this to the Guardianship Board, it is subsequently up to the citizen to take action. Attorney Kock endorses this. Often the judge has to intervene if an ex-partner refuses to pay alimony. In The Netherlands for example, the government has established a bureau (National Collection Bureau Support Allowances) that keeps defaulters up to the mark. This is a free service in the sense that the defaulter pays the bill.

25 August 2011

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