Cross-border recovery of maintenance in Europe

The rules for recognition and enforcement of maintenance decisions contained in Chapter IV, Section 1 of the Regulation (Articles 17-22) apply to decisions given in European Union Member States bound by the 2007 Hague Protocol. These are currently all European Union Member States except the United Kingdom and Denmark (with regard to the applicability of the Regulation provisions to Denmark see the Chapter on the geographic and temporal scope of the Maintenance Regulation).

According to Article 17(1) of the Regulation, a decision given in a Member State bound by the 2007 Hague Protocol is recognised in any other Member State without any special procedure needed and without any possibility to oppose the recognition. If the decision is enforceable in the State of origin, it is enforceable in another Member State without the need for a declaration of enforceability, Article 17(2).

See simplified overview below:

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This means that decisions given in a Member State bound by the 2007 Hague Protocol are basically no longer treated as “regular foreign decisions” in the other Member States but acquire the status of enforceability in other Member States the moment they become enforceable in the State of origin.

It should, however, be noted that the „recognition and enforcement of a decision on maintenance under [the] Regulation [does] not in any way imply the recognition of the family relationship, parentage, marriage or affinity underlying the maintenance obligation which gave rise to the decision“, see Article 22 of the Regulation.

The abolishment of the exequatur holds the promise to considerably speed up the enforcement of Member State decisions in other Member States. Of course, there are still some formalities to be fulfilled when it comes to enforcing a decision from another Member State. After all, the decision remains a decision rendered in another legal system, possibly in a different form and often in a different language. Article 20 of the Regulation lists the documents that need to be transmitted to the competent enforcement authorities in the Member State of enforcement. With a view to simplifying the enforcement of decisions from other Member States, multilingual forms have been developed, which are annexed to the Regulation. For the purpose of enforcement of a decision under Section 1, the form set out in Annex I is to be issued by the court of origin, see Article 20(1) b) of the Regulation.

The defendant wishing to oppose the enforcement has, in accordance with Article 19, the right to apply (within the timeframe of Article 19(2)) for a review of the decision in the Member State of origin, if he did not enter an appearance and

1. was not served in sufficient time and in such a way to enable him to arrange for his defence; or
2. was prevented from contesting the maintenance claim due to force majeure or extraordinary circumstances without any fault on his part.

If the competent court in the State of origin has been seised with an application for a review in accordance with Article 19, the debtor can apply for a suspension of the enforcement in the State of enforcement, Article 21(3). The debtor can also apply for such a suspension if the enforceability of the decision in the State of origin has been suspended, Article 21(3).

The debtor can, in accordance with Article 21(2), in the Member State of enforcement apply for the refusal of the enforcement of the decision or part of the decision if (see Article 21(2) for further details):

• the right to enforce the decision is extinguished or
• the enforcement is irreconcilable with a decision given in the State of enforcement or with a decision fulfilling the necessary conditions for recognition in that State

Apart from that, the debtor wishing to oppose the enforcement can refer to the grounds of refusal or suspension of enforcement under the law of the State of enforcement unless they are incompatible with the application of Article 21(2) and (3), see Article 21(1).