To continue our series of articles on international divorce, we now refer to the applicable rules for determining which State has EU maintenance obligations jurisdiction when deciding issues relating to maintenance obligations.
In previous articles, we have already addressed other matters such as:
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judicial jurisdiction in international divorce and parental authority,
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applicable law to international divorce,
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applicable law to parental authority and child custody in international divorces.
In the field of international family law, one of the most important questions is determining which court has jurisdiction to hear a claim relating to maintenance obligations.
Moreover, Council Regulation (EC) No 4/2009 uniformly regulates this matter within the European Union (with the exception of Denmark), ensuring legal certainty and preventing the proliferation of contradictory judgments.
General Jurisdiction Criteria (Article 3)
The Regulation sets out several connecting factors that allow the parties to identify the competent court:
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First, the habitual residence of the defendant: an action may be brought in the Member State where the maintenance debtor resides.
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Second, the habitual residence of the creditor: an alternative that benefits the maintenance beneficiary.
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Additionally, accessory actions: when a maintenance claim is linked to proceedings concerning personal status (e.g., divorce) or parental responsibility (custody, parental authority), the same court may also rule on maintenance.
However, in the latter case the jurisdictional criterion cannot be based solely on the nationality of one of the parties.
Choice of Court (Article 4)
The parties may, in certain cases, agree on which court will have jurisdiction.
Specifically, the criteria are as follows:
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habitual residence of one of the parties
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nationality of one of the parties
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(in maintenance obligations between spouses or former spouses) jurisdiction based on competence to hear matrimonial proceedings
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(in maintenance obligations between spouses or former spouses) the spouses’ common domicile during the previous year.
Importantly, this agreement must meet formal requirements (in writing or by electronic means with durable recording) and is valid only for maintenance between spouses or former spouses, never for minors.
Generally, the choice of court grants exclusive jurisdiction unless the parties agree otherwise.
Appearance of the Defendant (Article 5)
If, however, the defendant voluntarily appears before a court of a Member State, that court acquires jurisdiction, unless the appearance is solely to contest jurisdiction.
Subsidiary Jurisdiction and Forum Necessitatis (Articles 6 and 7)
In exceptional cases where no court of the EU has jurisdiction:
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On the one hand, the court of the State of the parties’ common nationality may be used (subsidiary jurisdiction).
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On the other hand, in extraordinary cases, when it is impossible to bring proceedings before a court of a third State, forum necessitatis may apply, provided there is a sufficient connection with the Member State.
Practical Example about EU maintenance obligations jurisdiction
For example, let us imagine a marriage between a Spanish woman and a French man, divorced in Barcelona.
After the divorce, the mother moves with her children to Lyon and claims child maintenance.
According to Regulation 4/2009, she may file the claim before the French courts (habitual residence of the creditor) or before the Spanish courts if the claim is accessory to the divorce proceedings already handled there.
This flexibility, therefore, aims to protect the interests of the creditor, particularly minors.
Conclusion about EU maintenance obligations jurisdiction
In conclusion, Regulation (EC) No 4/2009 provides a clear and predictable framework for determining judicial jurisdiction in maintenance matters, while ensuring both the protection of creditors and the effective enforcement of decisions within the EU.
Therefore, understanding these rules is essential for lawyers and families facing situations of international divorce.
Finally, if you find yourself in such a situation and need specialised advice on divorces and maintenance obligations with international elements, do not hesitate to contact our firm in Barcelona.
We will be happy to help you find the best solution.