Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance

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Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance
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  Parties
  Signatory that did not ratify
  Party (treaty not entered into force
Signed 23 November 2007
Location The Hague, The Netherlands
Effective 1 January 2013
Condition Ratification by 2 states
Signatories 7[1][2], covering 32 countries
Parties 6 (as of December 2015)
 Albania
 Bosnia-Herzegovina
 European Union
 Montenegro (not yet in force)
 Norway
 Ukraine
Depositary Ministry of Foreign Affairs (Netherlands)
Languages English and French

The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is a multilateral treaty governing the enforcement of judicial decisions regarding child support (and other forms of family support) extraterritorially. It is one of a number of conventions in the area of private international law of the Hague Conference on Private International Law in 2007. The convention is open to all states as well as to Regional Economic Integration Organizations as long as they are composed of sovereign states only and have sovereignty in (part of) the content of the convention. The convention entered into force on 1 January 2013 between Norway and Albania, with Bosnia-Herzegovina (2013), the European Union (2014, except with respect to Denmark) and Montenegro (2017) following suit. As convention applies in 27 EU countries, the convention applies now in 32 countries.

Forms of maintenance[edit]

Three forms of maintenance form the core of the convention and are defined in article 2:

  1. obligations towards children below the age of 21 (or 18, if a reservation is made)
  2. spousal support in a case linked to child support
  3. spousal support (with limited governmental assistance in obtaining results)

A country can further declare to apply the convention to other forms of family maintenance: "any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons". Such a wider scope is only valid between two member states if both have a increased to scope.

Procedure[edit]

States Parties are to establish a Central Authority for the convention. The Authority in the country of residence of the requester is the authority through which requests for enforcement of judicial or administrative decistions can be made, while the authority in the country to which the request is lodged should provide further -free- help with the application. As the convention is based on enforcement of judicial decisions, the merit of the decision itself may not be taken into account. The request should include the decision as well as proof that the "respondent had proper notice of the proceedings and an opportunity to be heard, or that the respondent had proper notice of the decision and the opportunity to challenge or appeal it on fact and law". The receiving authority is required to actively enforce the decisions by means which are at least as effective as those used when enforcing decisions within that country. They may include withholding of wages or social security payments or garnishments from bank accounts. Also public bodies may request enforcement if they are eligible to receive payments because one of the parties has made a claim to public funds.

States parties[edit]

Signature of Bosnia-Herzegovina by Safet Halilović, Minister of human rights and refugees

The convention entered into force on 1 January 2013 following ratification by two states: Albania and Norway. For Bosnia-Herzegovina and Ukraine, the convention entered into force one later in 2013. The European Union became a party in 2014 as a Regional Economic Integration Organization. Because the subject matter of the convention fully falls within EU competency, the EU rather than the individual member states became a party. The convention is applicable to all 28 member states except Denmark and only applies to those territories that form part of the European Union. In December 2015, Montenegro acceded to the convention, which will enter into force for it on 1 January 2017, for those states that have not objected to the accession.

Further signatories are Burkina Faso and the United States. The United States Senate approved the treaty in 2010,[3] and implementation legislation has been passed on a federal level (Preventing Sex Trafficking and Strengthening Families Act, public law 113-183). Ratification can take place after legislation at state level (UIFSA 2008) has been passed in 54 jurisdictions (the 50 states, DC, Virgin Islands, Puerto Rico, Guam),[4] which has to be done before 1 April 2016. As of 22 December 2015, 52 jurisdictions had done so.[5]

Party Entry into Force Spousal
Support
Support to adult
children until
other recognized support
 Albania 1 January 2013 YesY 21 (25, high school or university students)
 Bosnia and Herzegovina 1 February 2013 Red XN 21
 European Union 1 August 2014 YesY 21
 Montenegro 1 January 2017 Red XN Red XN (reserves the right to limit to children under 18)
 Norway 1 January 2013 YesY 21 (25 may be recognized)
 Ukraine 1 November 2013 Red XN 18 (23, students) incapacitated adults (from adult children, parents, siblings)
children raised by grand parents

Relationship to other Conventions[edit]

The convention revises two Hague Conventions as well a United Nations convention relating to family support. When the convention is in force on the territories of members which are also parties to one of those conventions, the 2007 convention is applicable.

Year Title States covered
by 2007 convention
States not covered
by 2007 convention
1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 19 5
1958 Hague Convention concerning the recognition and enforcement of decisions relating to maintenance obligations towards children 15 5
1956 United Nations Convention on the Recovery Abroad of Maintenance 28 36

Protocol[edit]

Hague Maintenance Protocol
Protocol on the Law Applicable to Maintenance Obligations
Signed 23 November 2007
Location The Hague, The Netherlands
Effective 1 August 2013
Condition Ratification by 2 states
Signatories 2
Parties 2  European Union
(all 28 Member States, except Denmark and the UK)
 Serbia

Which law is applicable on maintenance obligations is not governed by the conventions but by a protocol concluded on the same day. In 2010, it was ratified by the European Union, which declared it had competence over all matters concerning the protocol with regards to all its member states except for Denmark and the United Kingdom. It applies the Protocol since 2011 provisionally, also between its memberstates within the Maintenance regulation. Serbia has ratified the Protocol on 10 April 2013, leading to entry into force of the convention on 1 August 2013.

Applicable law[edit]

The applicable law that is determined by the convention is not restricted to the laws of the parties to the convention: it is therefore possible that a law of a non-state party is chosen. As a general rule, the law of the habitual residence of the creditor (the person obtaining maintenance) habitual residence applies. In cases of parents towards their children, children towards their parents, and persons regarding young persons (under 21, and if there is no spousal relationship) the following 3 laws are considered in a so called cascade:

  1. Law of the debtor (general rule under the convention), but if that leads to no maintenance
  2. Law of the forum, and if that leads to no maintenance:
  3. Law of the common nationality

If the court seized is the debtor's habitual residence, the first two applicable laws are reversed leading to the following cascade:

  1. Law of the forum (the law of the debtor's habitual residence), but if that leads to no maintenance
  2. Law of the creditor (general rule under the convention), and if that leads to no maintenance:
  3. Law of the common nationality

In the cases of (former) spouses, either party may object to the use of the law of the creditor's habitual residence, instead using the law which as a closer connection with the marriage if "the law of another State, in particular the State of their last common habitual residence, has a closer connection with the marriage". In cases where both parties share a nationality and the law of that nationality as well as the law of the debtor's habitual residence would not lead to maintenance, a debtor may also contest to use of the law of the creditor's habitual residence, provided it is not a case relating to child support. In cases not concerning child support (for children below 18) or vulnerable adults, both parties my choose the law governing the maintenance, choosing from:

  • law of nationality (of one of the parties)
  • law of the habitual residence (of one of the parties)
  • law applied to their property regime
  • law applied to their divorce or legal separation

See also[edit]

References[edit]

  1. ^ "38: Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance". HCCH. 15 June 2011. Retrieved 7 July 2011. 
  2. ^ "Bosnië-Herzegovina ondertekent Haags Verdrag Levensonderhoud-inning" (in Dutch). Ministry of Foreign Affairs (Netherlands). 6 July 2011. Retrieved 7 July 2011. 
  3. ^ "Treaties, 110th Congress (2007 - 2008), 110-21". THOMAS (library of Congress). Retrieved 21 June 2013. 
  4. ^ "H.R.1896 - International Child Support Recovery Improvement Act of 2013". THOMAS (Library of Congress. Retrieved 23 June 2013. 
  5. ^ Margaret Campbell Haynes (2015). "Putting the ‘Uniform’ back in UIFSA" (PDF). Child Support Report (Office of Child Support Enforcement) 37 (10): 3. Retrieved 28 December 2015. 

External links[edit]