Cross-border recovery of maintenance in Europe

In addition to the general provisions, the Maintenance Regulation provides in Article 4 for the possibility of the parties to choose a court that has jurisdiction regarding a dispute on maintenance matters which has already arisen or may arise in the future. However, such a choice of court is not possible concerning maintenance obligations towards a child under the age of 18 (Article 4(3)). Also, the parties are not entirely free regarding the choice of court; they can only choose among the following courts:

• a court or the court(s) of Member State where a party is habitually resident; or
• a court or the court(s) of Member State of a party’s nationality; or in case of maintenance obligations between spouses or former spouses
• the court which has jurisdiction to settle the dispute in matrimonial matters; or
• a court or the court(s) of Member State of last spouses’ common habitual residence for a period of a at least one year.

The conditions mentioned above have to be met at the time when the choice of court agreement is concluded or at the time when the court is seised (Article 4(1)). Unless otherwise agreed, the jurisdiction conferred by agreement is considered as exclusive jurisdiction (Article 4(1)).

Furthermore, jurisdiction in matters relating to maintenance obligations in Member States can lie with the court which has jurisdiction (according to its own law) to entertain proceedings concerning:

The Regulation requests the choice of court agreement to be in writing (Article 4(2)) but is open to the use of modern communication technology in concluding such an agreement stating that any communication by electronic means which provides a durable record shall be equivalent to ‘writing’ (Article 4(2)).

Finally, Article 4(4) provides that if the parties have chosen the court of a State that is not a European Union Member State but is a State Party to the new Lugano Convention, this Convention shall apply.

Submission to jurisdiction, Article 5
A further option to establish the jurisdiction of a court is the submission to jurisdiction set forth in Article 5 of the Maintenance Regulation, i.e. the court in a Member State before which the defendant enters an appearance without contesting jurisdiction shall have jurisdiction.

Subsidiary jurisdiction, Article 6
Where no court of a European Union Member State has jurisdiction under Articles 3-5 of the Maintenance Regulation and no court of a non-Member State which is party to the new Lugano Convention has jurisdiction in accordance with that Convention, the courts of Member State of the parties’ common nationality have jurisdiction.

Forum necessitatis, Article 7
In the exceptional case that no court of a European Union Member State has jurisdiction in accordance with Articles 3-6 of the Regulation and that proceedings cannot reasonably be brought or conducted in a third State with which the dispute is closely connected, the courts of the Member State with sufficient connection to the case have jurisdiction, Article 7.