A mother lives with her daughter in Vienna; the father has moved to Milan and stopped paying. A divorced spouse in Lyon holds a French maintenance order, but the former husband's salary is paid in Rotterdam. A student in Warsaw needs support from a parent who now lives in Lisbon. In each case the money is owed in one EU country and the debtor lives in another. Regulation (EC) No 4/2009 on maintenance obligations exists for exactly this situation.
This guide is written for parents, spouses and former spouses who are owed maintenance by someone living in another EU Member State, for debtors facing a claim from abroad, and for the advisers helping them. It follows the text of 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, as published in the Official Journal. The Regulation deals with maintenance only; divorce, parentage and parental responsibility are governed by other instruments and by national law.
What the Regulation covers (Articles 1 and 2)
The Regulation applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity (Article 1(1)). It therefore covers child maintenance, maintenance between spouses and former spouses, and other family maintenance obligations that exist under the applicable law.
Article 2(1) defines the instruments that can circulate under the Regulation. A decision is a decision in matters relating to maintenance obligations given by a court of a Member State, whatever it is called, including a decision on the determination of the costs or expenses by an officer of the court. A court settlement and an authentic instrument on maintenance are also covered.
The Regulation is limited to maintenance. Under Article 22, the recognition and enforcement of a maintenance decision does not in any way imply the recognition of the family relationship, parentage, marriage or affinity that gave rise to the maintenance obligation. A court in the debtor's country can therefore enforce a maintenance order without thereby recognising, for example, the marriage on which it is based.
Which court can decide a maintenance claim (Articles 3 to 7 and 12)
Article 3 lists the courts with general jurisdiction. A maintenance claim may be brought before (a) the court for the place where the defendant is habitually resident; (b) the court for the place where the creditor is habitually resident; (c) the court that has jurisdiction over proceedings concerning the status of a person, such as a divorce, if the maintenance claim is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; or (d) the court that has jurisdiction over proceedings concerning parental responsibility, if the maintenance claim is ancillary to them, with the same exception.
Option (b) is the creditor's main advantage: a parent claiming for a child may sue in the courts of the place where the creditor lives, without having to go to the debtor's country.
Parties may also choose a court (Article 4). They may agree on the courts of a Member State in which one of them is habitually resident, of a Member State of which one of them is a national, or, between spouses or former spouses, the court with jurisdiction over their matrimonial disputes or the courts of the Member State of their last common habitual residence for at least one year. The conditions must be met when the agreement is concluded or when the court is seised; unless the parties agree otherwise, the chosen jurisdiction is exclusive. The agreement must be in writing, and electronic communication that provides a durable record counts as writing (Article 4(2)). A choice of court does not apply to a dispute relating to a maintenance obligation towards a child under the age of 18 (Article 4(3)).
A court also has jurisdiction if the defendant enters an appearance without contesting jurisdiction (Article 5). Where no court has jurisdiction under Articles 3 to 5, Article 6 gives subsidiary jurisdiction to the courts of the Member State of the parties' common nationality, and Article 7 allows, in exceptional cases, a forum of necessity. Where proceedings involving the same cause of action and the same parties are brought in courts of different Member States, the court first seised has priority (Article 12).
Changing an existing maintenance decision: the limit in Article 8
A maintenance decision can be revisited when income or needs change. Article 8 protects the creditor against being pulled into another country's courts for that purpose. Where a decision is given in a Member State, or in a State party to the 2007 Hague Convention, in which the creditor is habitually resident, the debtor cannot bring proceedings to modify the decision or to have a new decision given in any other Member State as long as the creditor remains habitually resident in the State in which the decision was given (Article 8(1)).
Article 8(2) lists the exceptions: (a) the parties have agreed on the jurisdiction of the other court under Article 4; (b) the creditor submits to the jurisdiction of the other court under Article 5; (c) the competent authority in the State of origin cannot, or refuses to, exercise jurisdiction to modify the decision or give a new one; or (d) the decision given in the State of origin cannot be recognised or declared enforceable in the Member State where proceedings to modify it are contemplated.
For a debtor who has moved abroad and whose income has fallen, this means that the application to reduce maintenance belongs before the courts of the State where the decision was given and the creditor still lives, unless one of the Article 8(2) exceptions applies.
Which law applies (Article 15)
The Regulation does not itself contain the conflict-of-law rules for maintenance. Article 15 provides that the law applicable to maintenance obligations is determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, for the Member States bound by that instrument.
Because the Protocol is a separate instrument, a court in a Member State bound by it applies the Protocol's connecting rules to decide which country's law governs the existence and amount of maintenance. The consequences of whether the State of origin is bound by the Protocol are, however, set out in the Regulation itself, and they matter for enforcement, as the next two sections show.
Recognition and enforcement: decisions from States bound by the 2007 Hague Protocol (Articles 16 to 21)
Chapter IV of the Regulation distinguishes between decisions given in a Member State bound by the 2007 Hague Protocol and decisions given in a Member State not bound by it (Article 16).
A decision given in a Member State bound by the Protocol is recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition (Article 17(1)). A decision that is enforceable in the State of origin is enforceable in another Member State without the need for a declaration of enforceability (Article 17(2)). This is the abolition of exequatur: the creditor goes directly to the enforcement authorities of the debtor's country. An enforceable decision also carries by operation of law the power to proceed to any protective measures available under the law of the Member State of enforcement (Article 18).
The safeguard for the debtor is the right to apply for a review in the State of origin (Article 19). A defendant who did not enter an appearance there may apply if (a) he or she was not served with the document instituting the proceedings in sufficient time and in such a way as to enable him or her to arrange for a defence, or (b) he or she was prevented from contesting the claim by force majeure or extraordinary circumstances without any fault on his or her part, unless he or she failed to challenge the decision when it was possible to do so. The period for applying runs from the day the defendant was effectively acquainted with the contents of the decision and was able to react, at the latest from the date of the first enforcement measure having the effect of making his or her property non-disposable in whole or in part. The defendant must react promptly, and in any event within 45 days, and this period may not be extended on account of distance (Article 19(2)).
To enforce, the creditor provides the enforcement authorities with a copy of the decision that satisfies the conditions necessary to establish its authenticity, an extract of the decision on the form in Annex I, where appropriate a document establishing the amount of any arrears, and, where necessary, a transliteration or translation of the form into the language of the Member State of enforcement (Article 20(1)). The authorities may not require a translation of the decision itself; a translation may be required only if enforcement of the decision is challenged (Article 20(2)).
Enforcement may be refused or suspended only on limited grounds (Article 21). The grounds for refusal or suspension under the law of the Member State of enforcement apply in so far as they are not incompatible with Article 21(2) and (3). On the debtor's application, enforcement is refused in whole or in part if the right to enforce has been extinguished by the effect of a prescription or limitation period, either under the law of the State of origin or under the law of the State of enforcement, whichever provides for the longer limitation period. Enforcement may also be refused if the decision is irreconcilable with a decision given in the State of enforcement, or with a decision given in another Member State or in a third State that fulfils the conditions necessary for its recognition in the Member State of enforcement; a decision that modifies an earlier one on the basis of changed circumstances is not considered irreconcilable. Enforcement may be suspended where the debtor has applied for a review under Article 19 (Article 21(3)).
| Question | Rule | Article |
|---|---|---|
| Scope | Maintenance from family relationship, parentage, marriage or affinity | 1(1) |
| Where to sue | Defendant's habitual residence, creditor's habitual residence, or court of an ancillary status or parental-responsibility case | 3 |
| Choice of court | Allowed in writing, but not for maintenance towards a child under 18 | 4 |
| Changing a decision | Debtor cannot sue elsewhere while the creditor remains habitually resident in the State of origin (exceptions listed) | 8 |
| Applicable law | Determined by the 2007 Hague Protocol | 15 |
| Decision from a Protocol State | Recognised without opposition; enforceable without declaration of enforceability | 17 |
| Defendant who did not appear | Review in the State of origin within 45 days | 19 |
| Decision from a non-Protocol State | Declaration of enforceability needed; appeal within 30 or 45 days | 26, 32(5) |
| Costs | No security, bond or deposit; free legal aid for children under 21 via Central Authorities | 44(5), 46 |
Decisions from Member States not bound by the Protocol (Articles 23, 24, 26 and 32)
For decisions given in a Member State that is not bound by the 2007 Hague Protocol, Section 2 of Chapter IV keeps a lighter version of the traditional procedure. Such a decision is recognised without any special procedure (Article 23), but it is not recognised on the grounds listed in Article 24: if recognition is manifestly contrary to public policy in the Member State where recognition is sought (the rules on jurisdiction may not be subjected to that test); if, in a decision given in default of appearance, the defendant was not served with the document instituting the proceedings in sufficient time and in such a way as to enable a defence, unless the defendant failed to challenge the decision when it was possible to do so; or if it is irreconcilable with another decision as described in that Article.
To be enforced, such a decision must first be declared enforceable in the Member State of enforcement on the application of an interested party (Article 26). An appeal against the declaration of enforceability must be lodged within 30 days of service; if the party against whom enforcement is sought is habitually resident in a Member State other than the one in which the declaration was given, the period is 45 days (Article 32(5)).
Enforcement, access to justice and free legal aid (Articles 41, 44 and 46)
Enforcement itself follows the law of the Member State of enforcement. A decision given in one Member State that is enforceable in the Member State of enforcement must be enforced there under the same conditions as a decision given in that Member State (Article 41(1)). The party seeking enforcement may not be required to have a postal address or an authorised representative in the Member State of enforcement, apart from the persons competent for the enforcement proceedings (Article 41(2)).
Article 44 guarantees parties effective access to justice in another Member State, including through legal aid, and Article 44(5) prohibits requiring any security, bond or deposit, however described, to guarantee the payment of costs and expenses in maintenance proceedings.
Article 46 adds a specific protection for children. For applications made by a creditor through the Central Authorities under Article 56 concerning maintenance obligations arising from a parent-child relationship towards a person under the age of 21, the requested Member State provides free legal assistance. For applications other than those under Article 56(1)(a) and (b), legal assistance may be refused if the application, or any appeal or review, is considered manifestly unfounded (Article 46(2)).
Central Authorities: help with locating the debtor and collecting (Articles 49, 51, 56 and 64)
Each Member State designates a Central Authority (Article 49). Central Authorities transmit and receive applications under Article 56 and initiate or facilitate the institution of proceedings in respect of them (Article 51(1)). In relation to those applications they take all appropriate measures, among others, to help locate the debtor or the creditor, to help obtain relevant information concerning the income and, if necessary, other financial circumstances of the debtor or the creditor, including the location of assets, to encourage amicable solutions with a view to obtaining voluntary payment of maintenance, where suitable by use of mediation, conciliation or similar processes, to facilitate the ongoing enforcement of maintenance decisions, including any arrears, and to facilitate the collection and expeditious transfer of maintenance payments (Article 51(2)).
Article 56(1) lists the applications a creditor can make through the system: (a) recognition or recognition and declaration of enforceability of a decision; (b) enforcement of a decision given or recognised in the requested Member State; (c) establishment of a decision in the requested Member State where there is no existing decision, including where necessary the establishment of parentage; (d) establishment of a decision where the recognition and declaration of enforceability of a decision given in another State is not possible; (e) and (f) modification of a decision. A debtor may apply through the same route for recognition of a decision that suspends or restricts enforcement of an earlier decision, and for modification of a decision (Article 56(2)).
Under Article 64, a public body acting in place of an individual to whom maintenance is owed, or to which reimbursement is owed for benefits provided in place of maintenance, may be treated as a 'creditor' for the purposes of an application for recognition and declaration of enforceability or for enforcement of decisions.
When and where the Regulation applies (Articles 68, 69, 75 and 76; recital 48)
The Regulation applies from 18 June 2011, subject to the 2007 Hague Protocol being applicable in the Community by that date (Articles 75 and 76). It replaced the provisions of Regulation (EC) No 44/2001 applicable to matters relating to maintenance obligations, and it replaces Regulation (EC) No 805/2004 in maintenance matters, except with regard to European Enforcement Orders on maintenance obligations issued in a Member State not bound by the Protocol (Article 68). The 1962 Nordic Convention is preserved as provided in Article 69.
Denmark did not take part in adopting the Regulation and is not bound by it as such; recital 48 notes the possibility for Denmark to apply amendments to Regulation (EC) No 44/2001 under Article 3 of the 2005 Agreement between the European Community and Denmark. A creditor or debtor with a connection to Denmark should therefore check the position for that State specifically.
The Regulation does not set amounts of maintenance, and it does not fix how long a Central Authority or a court will take; those depend on the applicable law and on each Member State's procedure.
Practical steps for maintenance creditors and debtors
Check where each party is habitually resident. The creditor's habitual residence gives jurisdiction under Article 3(b) and, once a decision exists there, limits where the debtor can seek modification (Article 8).
Find out whether the State of origin is bound by the 2007 Hague Protocol. The answer decides whether the decision is enforceable without a declaration of enforceability (Article 17) or needs one first (Article 26).
Prepare the enforcement file. A copy of the decision, the Annex I extract, a statement of arrears where relevant and a translation of the form into the language of the State of enforcement (Article 20).
Use the Central Authority where it helps. For child maintenance from a parent, applications under Article 56 bring free legal assistance for persons under 21 (Article 46) and support with locating the debtor and the debtor's assets (Article 51).
Debtors: act on the 45-day review period. A defendant who was not properly served in the original proceedings must apply for review in the State of origin within 45 days under Article 19. Brisamo can connect you with a family lawyer in the relevant country to review your situation.
Frequently asked questions
Can I sue for child maintenance in the country where my child and I live?
Yes. Under Article 3(b) of Regulation (EC) No 4/2009 the court for the place where the creditor is habitually resident has jurisdiction, so the claim does not have to be brought in the debtor's country.
Can we agree in advance which court will decide maintenance?
The parties may conclude a written choice-of-court agreement within the limits of Article 4, for example for the courts of a State where one of them is habitually resident or of which one of them is a national. Such an agreement does not apply to maintenance owed to a child under 18 (Article 4(3)).
Do I need exequatur to enforce a maintenance order in another EU country?
Not if the decision was given in a Member State bound by the 2007 Hague Protocol: it is enforceable in the other Member States without a declaration of enforceability (Article 17(2)). Decisions from a Member State not bound by the Protocol must first be declared enforceable (Article 26).
My former partner moved abroad. Can he ask a court there to reduce maintenance?
As long as you remain habitually resident in the State where the decision was given, the debtor cannot bring modification proceedings in another Member State, unless one of the exceptions in Article 8(2) applies, such as a valid choice-of-court agreement or your appearance before that court.
I was never told about the case abroad. What can I do?
A defendant who did not appear may apply for a review in the State of origin if the document instituting the proceedings was not served in sufficient time and in a way that allowed a defence, or if force majeure prevented a defence. The application must be made within 45 days under the conditions of Article 19.
Do I have to pay a security deposit to bring a maintenance claim in another Member State?
No. Article 44(5) provides that no security, bond or deposit may be required to guarantee the payment of costs and expenses in maintenance proceedings.
Who helps a creditor find the debtor and the debtor's assets?
The Central Authorities designated under Article 49. In relation to applications under Article 56 they help locate the debtor, obtain information about income and assets, encourage amicable solutions and facilitate ongoing enforcement and the transfer of payments (Article 51).