Maintenance obligations
The Regulation covers cross-border maintenance applications arising from family relationships. It establishes common rules for the entire European Union (EU) aiming to ensure recovery of maintenance claims even where the debtor or creditor is in another EU country.
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
This Regulation provides a series of measures aimed at facilitating the payment of maintenance claims in cross-border situations. Such claims arise from the obligation to help family members. For example, they may take the form of maintenance paid to a child or to a former spouse following divorce.
The Regulation applies to maintenance obligations arising from:
a family relationship;
parentage;
marriage or affinity.
Jurisdiction
In matters relating to maintenance obligations, jurisdiction shall lie with:
the court of the place where the defendant or the creditor is habitually resident; or
the court which has jurisdiction to entertain proceedings relating to the status of a person (a divorce for example) or relating to parental responsibility, if the matter concerning maintenance is related thereto (provided that jurisdiction is not based solely on the nationality of one of the parties).
Unless the dispute relates to a maintenance obligation towards a child under the age of 18, the parties may, subject to certain conditions, agree on the court or courts of an EU country which have jurisdiction to settle it.
Where the defendant makes an appearance before a court of an EU country, that court shall have jurisdiction, unless the defendant contests its jurisdiction.
If none of the conditions cited above is fulfilled, the dispute may, subject to certain conditions, be brought before the courts of an EU country of which both parties are nationals.
When none of the above conditions is fulfilled, the matter may be brought before the court of an EU country with which the case has sufficient connection if the proceedings cannot reasonably be brought in a country with which the dispute is closely connected.
As long as the creditor continues to reside in the EU country in which the decision on maintenance obligations was given, the debtor may not, subject to exceptions, bring proceedings to modify the decision in another EU country. The creditor may nevertheless agree that the dispute is decided by another court.
If proceedings concerning the same parties and involving the same cause of action are brought before the courts of different EU countries, jurisdiction shall lie with the court first seised.
Regardless of the court having jurisdiction as to substance, applications for provisional and protective measures may be lodged before any court of any EU country.
Recognition and enforcement of decisions
A decision on maintenance obligations by one EU country is to be recognised in another EU country without any special procedure.
The vast majority of EU countries are bound by the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.
Where the decision was taken by a State bound by the 2007 Hague Protocol, its recognition may not be opposed.
Where the decision was taken by a State not bound by the 2007 Hague Protocol, its recognition may be refused in certain cases and it may only be enforced in another State if a declaration of its enforceability has been obtained in that State.
In all cases, the court of origin may declare a decision provisionally enforceable. When the decision is to be enforced in an EU country other than that in which it was originally taken, enforcement is governed by the law of that EU country.
The decision taken in an EU country cannot be reviewed as to its substance in the EU country in which its recognition, enforceability or enforcement is sought.
Free legal aid may be provided in respect of applications on maintenance obligations arising from a parent-child relationship towards a person under the age of 21 provided that such applications are made via the central authorities.
Central authorities
Each EU country must appoint a central authority responsible for assisting parties in the establishment and recovery of maintenance. In particular, they will send and receive applications provided for under the Regulation and take all appropriate measures to introduce or facilitate the introduction of the necessary procedures.
The central authorities shall cooperate with each other, promote cooperation among the competent authorities of their country and seek solutions to difficulties which may arise in the application of this Regulation. To this end, they shall use the European Judicial Network in civil and commercial matters.
Final provisions
This Regulation replaces the provisions concerning maintenance obligations of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters . It also replaces Regulation (EC) No 805/2004 creating a European enforcement order for uncontested claims, except for European enforcement orders concerning maintenance obligations issued by EU countries that are not bound by the 2007 Hague Protocol.
This Regulation has been applicable since 18 June 2011.
REFERENCES
Regulation (EC) No 4/2009
Council Decision 2006/325/EC of 27 April 2006 concerning the conclusion of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [Official Journal L 120 of 5.5.2006].
Commission Decision 2009/451/EC of 8 June 2009 on the intention of the United Kingdom to accept Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [Official Journal L 149 of 12.6.2009].
Council Decision 2011/220/EU of 31 March 2011 on the signing, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [Official Journal L 93 of 7.4.2011].
Under this decision, on 6 April 2011 the EU signed the Hague Convention of 23 November 2007, which establishes, between the contracting parties, a worldwide system for the recovery of maintenance claims.
Council Decision 2011/432/EU of 9 June 2011 on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [Official Journal L 192 of 22.7.2011].
Council Decision 2014/218/EU of 9 April 2014 amending Annexes I, II and III to Decision 2011/432/EU on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [Official Journal L 113 of 16.4.2014].
Under these decisions, the Union deposited its instrument of approval of the Convention on 9 April 2014. The Convention shall enter into force in all EU countries except Denmark on 1 August 2014. The Convention offers a comprehensive framework to deal with issues relating to maintenance obligations with other non-EU Member States which are Party to it.
Law applicable to divorce and legal separation
Regulation (EU) No 1259/2010 — law applicable to divorce and legal separation
It establishes a single set of rules to determine which national law should apply to proceedings for divorce or legal separation involving spouses who are of different nationality, live in a country different from their country of nationality or no longer live in the same EU country.
It complements Regulation (EC) No 2201/2003, which sets out rules to determine in which court an application for divorce or legal separation must be filed.It entered into force on 30 December 2010.
Participating countries
The regulation applies to 16 EU countries which participate in enhanced cooperation on this issue: Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, and Slovenia.
Other EU countries can join at any time.
When does the regulation apply?
It applies where this is a conflict of national laws in cases of divorce and legal separation, i.e. where several national laws could apply to the same divorce or legal separation (for example, the national law of the country of the spouses’ nationality, or the national law of the country of their main place of residence).
It does not apply to questions of:
the legal capacity of natural persons
the existence, validity or recognition of a marriage
the annulment of a marriage
the name of the spouses
the property consequences of the marriage
parental responsibility
maintenance obligations
trusts or successions.
Choice of law
Spouses may make a formal agreement choosing which national law will apply to their divorce or legal separation as long as it is either the law of:
the country where the spouses have their main place of residence at the time the agreement is concluded; or
the country where the spouses had their last main residence, in so far as one of them still resides there at the time the agreement is concluded; or
the country of nationality of either spouse at the time the agreement is concluded; or
the country in which the case is brought.
An agreement between the spouses may be made and changed at any time up to when the case comes before the court.
Where no choice of law is made
If the spouses do not choose the law that should apply to their divorce or legal separation, the case will be subject to the law of the country:
1.where the spouses have their main residence at the time the case comes before the court; or, if not
2.where the spouses had their last main residence, provided that the period of residence did not end more than 1 year before the case came before the court, in so far as one of the spouses still lives in that country at the time the case comes to court; or, if not
3.of which both spouses are nationals at the time the case is brought before the court; or, if not
4.in which the case is brought.
If the national law applicable to the case does not include a divorce law or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the country in which the case is brought will apply.
BACKGROUND
Two other regulations set out rules to establish the applicable law where there is a conflict of national laws. Regulation (EC) No 593/2008 applies to contractual obligations, whilst Regulation (EC) No 864/2007 covers non-contractual obligations excluding family relationships and the liability of a state.
Regulation No 1259/2010, which contains rules on the applicable law to divorce and legal separation, was adopted through enhanced cooperation to complement Regulation (EC) No 2201/2003, which contains rules on jurisdiction and recognition and enforcement in respect of divorce and legal separation (as well as on parental responsibility matters).
For further information, see Divorce and legal separation.
ACTS
Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 343, 29.12.2010, pp. 10-16)
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, pp. 1-29). Successive amendments and corrections to Regulation (EC) No 2201/2003 have been incorporated in the basic text. This consolidated version is for reference purposes only.
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, pp. 40-49)
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, pp. 6-16). See consolidated version.
Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 323, 22.11.2012, pp. 18-19)
Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 23, 28.1.2014, pp. 41-42)
Parental responsibility & protection of children (Hague Convention)
SUMMARY OF:
Decision 2003/93/EC on the 1996 Hague Convention relating to international legal aspects of parental responsibility and measures for the protection of children
It authorises EU countries to sign the Hague Convention.
The convention lays down rules to improve protection for children in international situations and avoid conflicts between different national legal systems.
All EU countries are party to the Hague Convention. This means they can rely on common legal rules when dealing with countries outside the EU who are parties to the Convention, to protect children involved in international disputes.
Scope
The Convention was concluded under the Hague Conference on Private International Law.
It covers jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.
What is covered?
The convention seeks to give international protection to children of up to 18 years old, by establishing:
which country has jurisdiction to take measures to protect a child or their property;
which law is applicable for exercising this jurisdiction;
which law applies to parental responsibility;
that the protection measures are recognised and enforced in all signatory countries;
cooperation between signatory countries.
The measures aimed at protecting a child relate to:
parental responsibility;
custody rights;
guardianship;
how the child is represented;
placement of the child in foster or other care;
supervision of that care;
how the child’s property is managed.
Which country is responsible?
The country with jurisdiction to provide protection measures is generally the country where the child is usually resident.
It is the country where they are present:
for refugees or internationally displaced children;
for children whose usual country of residence cannot be established;
in emergencies (optional).
Exception
In a particular case, if another country appears to be better placed for assessing the best interests of the child, it may be allowed to assume jurisdiction.
Which law applies?
The country exercising jurisdiction does so under its own law.
Exceptionally, it may apply or take into consideration the law of another country that is closely connected to the situation – if this is in the best interest of the child.
A country can only refuse to apply the law designated by the convention for justified reasons of public policy and in the best interest of the child.
Recognition & enforcement
The measures a signatory country takes under this convention to protect a child or their property must be recognised in all other signatory countries.
Only in a limited number of cases, as specified in the convention, may a country refuse recognition.
When protection measures are declared enforceable in another country, that country must enforce them as if it had taken them itself, and do so in accordance with its own law.
Cooperation
Each signatory country must designate one or more central authorities to carry out the obligations imposed on it by the convention.
These authorities must cooperate and exchange information with each other, as well as promote cooperation in such cases among their national authorities.
ACTS
Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children (OJ L 48, 21.2.2003, pp. 1–2)
Council Decision 2008/431/EC of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law – Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (OJ L 151, 11.6.2008, pp. 36–48)