Appeal2022-01-07T11:11:09+00:00

Conflicts

Appeal

Under Dutch law, there are several instances that proceedings can go through, being first instance in the district court followed by the appeal court.

In the event of appeal, the case will be completely reassessed and you will also be able to put forward new points of view and arguments.

Approximately 30% of court judgments are overturned on appeal

If the outcome of court proceedings is not satisfactory, it may be useful to lodge an appeal with the court of appeal. In the appeal, the case will be completely re-evaluated. You will also have the opportunity to put forward new points of view and arguments. This may be the case, for example, if they have been overlooked by the court or if the court has made certain assumptions that are incorrect. Where the court normally consists of only one judge, a case before the Court of Appeal is assessed by three judges. The advantage of this is that they discuss the matter with each other and can thus better arrive at a well-considered judgment. After all, three normally know more than one.

How does an appeal procedure proceed?

The appeal procedure starts with a formal announcement by the bailiff that an appeal will be lodged. This must be done at the latest within three months of the date of the court’s decision.

Start of appeal: Interim hearing

It is possible that the court of appeal decides to start the appeal with a hearing; the so called ” “interim” hearing. This is where the court considers that it needs further information in order to make a decision, which is also used to try to encourage both parties to settle the matter out of court. That hearing therefore takes place before both parties have argued in writing what they think of the verdict that the court has pronounced. An important objective of the Court of Appeal is to examine at this hearing whether it is still possible to reach joint agreements on a solution.

Why is the verdict of the court (in)correct?

If the appeal does not lead to a result, or if the Court of Appeal does not have sufficient confidence in advance that a settlement can be reached by mutual agreement, then both parties will once have the opportunity to explain their point of view in a written document. The party lodging an appeal does so by writing and submitting the so-called statement of objections. This document explains why the judgment of the court is incorrect. The other party responds with the so-called statement of reply in which it is argued why the objections to the judgment should not be upheld.

Simultaneously with the submission of the statement of reply, the defendant may also object to the judgment in the appeal. For example, because it was partially unsuccessful. The other party may then respond again in writing.

Hearing and decision on appeal

After this written round, both parties may ask the Court to hold a hearing so that they can also argue their point of view orally. If neither party needs a hearing, the Court will rule on the basis of the written documents. If a hearing does take place, the appeal will be decided a number of months after the hearing has taken place. In its decision, the Court of Appeal may decide the case in full, but may also determine, for example, that witnesses still need to be heard.

The processing time of the appeal is comparable to the duration of the proceedings before the court. In the intervening period, the starting point is that the opinion of the court must be followed, unless legal measures are taken against it or agreements are made with the other party.

“Research shows that approximately 30% of the judgments rendered by courts of appeal fail”.

Chance of successful appeal proceedings

Experience shows that it happens very regularly that not all relevant arguments have been put forward in court and not all important facts have been sufficiently put forward. Sometimes this is because the treatment by the lawyer could have been better and sometimes because all the facts only become clear in the course of the proceedings before the court. The appeal offers the possibility to rectify this.

What also occurs is that all the arguments have been put forward, but the district court does not seem to have understood this or even ignored important arguments. A party who does so often believes that the District Court has assessed the case rather unilaterally and has the feeling that it has not been heard by the Court. On appeal, the case can then be re-examined and it is an advantage that this is done by three judges who discuss the case with each other.

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A right to compensation after termination of cohabitation without a contract or marriage?

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The Supreme Court issued an interesting judgment on the question whether a partner is entitled to compensation from the ex-partner after ending cohabitation without a contract (also referred to as: informal cohabitation).

Right to compensation of ex-partner in case of termination of cohabitation without contract or marriage?

The case is clear. A man and a woman lived together without a marriage, registered partnership or cohabitation contract. They have a child together. The partners lived in a house owned by the husband. The (mother of the) woman took care of an expensive renovation (€ 74,000) of the man’s house. The man was financially unable to take care of the renovation himself. The partners did not agree on the costs of the renovation. Subsequently, the relationship was broken off. The question is whether the woman has a right to compensation towards the man concerning the costs she paid for the renovation.

Judgment of the Court of Justice on the right to compensation of ex-partner

The Court rejected the woman’s claim because they saw no legal basis for the claim. There is no contractual basis, because there is no cohabitation contract or agreement on the costs of the renovation. Article 1:87 of the Dutch Civil Code, which deals with compensation rights between spouses and registered partners, does not apply either, because there is no marriage or registered partnership. Nor can there be a corresponding application of the article. Furthermore, the Court of Appeal notes that on the basis of what has been stated by the woman he cannot establish that there is a claim on the basis of unjust enrichment.

Judgment of the Supreme Court on the right to compensation and the role of reasonableness and fairness in informal cohabitation

The Supreme Court upholds the judgment of the Court of Appeal. In order to accept unjustified enrichment, it is necessary to establish that if the woman had not borne those costs, the man would have made those costs himself or would have been obliged to make them. Since the man did not have financial means to incur the costs, there is no reason to believe that he would have incurred them. Therefore, the mere fact that the woman incurred costs does not automatically lead to the conclusion that the man saved himself the costs.

However, according to the Supreme Court, the above does not alter the fact that there is a legal relationship between informal cohabitants that is partly governed by reasonableness and fairness. It continues:

“Even if, with regard to certain expenses, a right to compensation from one cohabitant to another cannot be assumed on the basis of an agreement concluded between the parties or on the basis of the other legal figures regulated in Book 6 of the Dutch Civil Code, such a right to compensation may, in connection with the special circumstances of the case, arise from the requirements of reasonableness and fairness referred to in Article 6:2 paragraph 1 of the Dutch Civil Code”.

The Supreme Court considered that it would then have been up to the woman to establish the special facts and circumstances which, according to standards of reasonableness and fairness, imply that she has a right to compensation towards the man. The woman catches the bone after all:

“The documents of the proceedings allow no other conclusion than that the woman has not stated any special facts and circumstances which, assuming that the man was financially incapable of paying the costs of the renovation himself and that the renovation has not enriched her, may nevertheless mean that she has a right to compensation towards the man resulting from the demands of reasonableness and fairness”.

In this specific case, therefore, no compensation is granted in the event of termination of cohabitation without a contract.

No agreement, but a legal relationship between informal cohabitants

The Supreme Court’s interpretation of the legal relationship between cohabitants is interesting. Apparently, the Supreme Court does not assume that cohabitation creates an agreement, but it does create a legal relationship that is governed in part by reasonableness and fairness.

Do you have any questions about your rights when ending informal cohabitation? Please contact Peter de Graaf or Hans Rijntjes.

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