Child Maintenance EU Regulation
Summary of the main points of the EU Regulation 4/2009, relating to the right to maintenance.
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A) Scope of application of the Regulation.
The following provisions of the Regulation concerns, first only the right to maintenance but not other elements of family law (such as the status of children or other family members, or the setting up of the same family relationship.
The same shall prevail over provisions of national law which are in conflict with this.
The following regulations shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity. In addition, these provisions cover not only the judgments of national courts but also the ordinances, orders and mandates of execution.
B) Competence.
The competence to decide on maintaining it: 1) the court of the place where the defendant lives 2) the court of the place where the creditor is habitually resident.
The appropriate court to decide on the maintenance, may be indicated by the parties by agreement between the parties themselves, however it must be a court of an EU member state in which one of the parties habitually resides. The jurisdiction conferred by this type of agreement is exclusive, also this type of agreement should be submitted in written form.
A judge is deemed to be seised as of the date on which the proceedings or an equivalent document is lodged with the court provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the notification to the defendant.
C) Determination of the applicable law.
The law applicable to maintenance is determined by the Hague Protocol of 23 November 2007. These provisions are binding on the Member States which have concluded such an agreement.
The judgments relating to the maintenance in an EU member state bound to the Hague Protocol of 2007 shall be recognized in another Member State without any special procedure and without any possibility of opposing its recognition.
D) Right to reconsideration.
A defendant who has not appeared in a court of the Member State of origin shall have the right to seek review of the decision before the competent court of that Member State if: it has been communicated to the writ of summons or an equivalent document in sufficient time and so as to enable him to prepare his defense or if not able to dispute the debt due to force majeure or extraordinary circumstances not attributable to him. The time limit for requesting a review shall run from the date on which the defendant had actual knowledge of the content of the decision.
E) Documentation required for the execution of a judgment.
In order for a judgment to be enforced will require a copy of the judgment which satisfies the conditions necessary to recognize its authenticity, the extract from the decision issued by the court of origin, may also be provided with a document showing the amount of arrears.
F) Ineffectiveness of decisions.
The judgments can not be recognized by another Member State in case: The decision is manifestly contrary to public policy in the Member State in which recognition is requested of the judgment, the judgment has been rendered in absentia if the defendant was not notified of the document instituting the proceedings or an equivalent document in sufficient time so as to enable him to arrange for his defense, if the judgment is irreconcilable with an earlier judgment given in a dispute that saw involved the same parties, if the judgment is incompatible with an earlier judgment given in one Member State on the same subject.
G) Possible suspension of the proceedings.
A court of a Member State in which recognition is sought of a judgment given in another Member State not bound by the 2007 Hague Protocol shall stay the proceedings if the enforceability of the decision is suspended in the Member State of origin to the submission of an appeal.
H) Right to legal aid.
The parts that are coinvoltein a dispute subject to Regulation 4/2009 must have effective access to justice in unltro member state, even if they are in the economic conditions are not suitable to cover the costs of the proceedings.
Any legal aid for the parts covering: the pre-litigation advice, legal assistance in presenting before a court or tribunal application maintenance, any finding of an interpreter and translation of the documents required by the court.
I) The central authorities designated.
Each Member State shall designate a Central Authority to discharge the duties which are imposed by the regulation 4/2009.
These bodies designated by the Member States have the general function of: Cooperate with each other by exchanging information and promoting cooperation between the competent authorities of the respective countries; Look for solutions if difficulties arise in the application of Regulation 4/2009; also contribute to locate the creditor and the debtor of the provision of maintenance; encourage the amicable settlement in order to obtain the voluntary payment of maintenance.
These bodies designated under no circumstances assume the tasks allotted exclusively to the judicial authorities of the Member States.
Designated authorities may get questions: by the creditor seeking to recover maintenance under or who wants to enforce a judgment given or who wishes to change a sentence.
By: Daniela Jezova, lawyer in Slovakia
JUDr. Daniela Ježová, LL.M., PhD.
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