International Maintenance Claims

How to claim maintenance in cross-border proceedings?

An international maintenance claim can be joined to matrimonial dissolution proceedings, to a claim for parental responsibility measures, or it can be filed separately.

It may also be necessary to enforce a maintenance decision given abroad, or to modify maintenance contained in a decision given in another country.

Although maintenance is claimed in a divorce action, it is a separate matter within that action to which its own rules of jurisdiction, applicable law, recognition and enforcement apply.

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When do the Spanish courts have jurisdiction to hear a maintenance claim?

If the action is brought in Spain, Regulation 4/2009 will apply to determine jurisdiction, except for residual cases.

This Regulation confers international jurisdiction on the Member State in which the maintenance creditor (irrespective of where the debtor resides) or the defendant (who is sometimes not the debtor) resides.

The courts of the Member State of the European Union which is seised of the parentage or parental measures (parental responsibility) shall also have jurisdiction, unless such jurisdiction is based solely on the criterion of the nationality of the plaintiff.

What is the law applicable to a maintenance claim?

It is determined by the 2007 Hague Protocol to which Article 15 of Regulation 4/2009 refers. The general rule is that the applicable law will be the law of the creditor’s residence, unless the debtor’s domicile has been seised. The rules of jurisdiction together with the rules of applicable law allow the claimant (usually the maintenance creditor) to assess before which court it is more convenient for him to claim maintenance.

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How is a foreign maintenance decision recognised?

Judgment given in a Member State of the European Union (except Denmark): no prior exequatur or declaration of enforceability will be required. Regulation 4/2009 will apply and the person concerned may apply directly for enforcement in the other Member States, where it will be enforced in accordance with their domestic enforcement procedures. This is a “sui generis” enforcement, it has special features compared to domestic enforcement, since the grounds of opposition in the Regulation are added to the grounds of opposition in the domestic law of the Member States.

From Iceland, Norway or Switzerland: the 2007 Lugano Convention will apply. This Convention establishes a system of automatic recognition/declaration of enforceability in two instances, the first “inaudita parte”. In the event that the enforced party wishes to object, he may do so in Spain before the Audiencia Provincial (Provincial Court), and may object only on the basis of the specific grounds set out in the Convention.

If the judgment comes from Albania, Andorra, Australia, the United Kingdom, Turkey or Ukraine: the 1973 Hague Convention will apply to the recognition of the judgment.

Issued in Colombia, Israel, USSR (now applicable with Russia), China, Morocco, El Salvador, Tunisia, Algeria, and Mauritania: to be recognised in accordance with the provisions to be established in the corresponding bilateral agreement signed with Spain.
If the judgment comes from any other State that is not a member of the European Union or is bound by an international agreement with Spain: it will be recognised through the provisions of Law 29/2015 on international legal cooperation.

Can maintenance be claimed through administrative authorities?

Spain is bound by a number of international conventions and instruments that allow it to apply for maintenance through a special administrative authority called the Central Authority. The creditor can apply to the Central Authority of his domicile to claim maintenance in another Member State.

Cooperation of authorities may be used to bring a maintenance claim in a country other than the country of the creditor’s residence or it may be used to recognise in one Member State a judgment given in another.

At Winkels Abogados our lawyers specialised in International Family Law, will advise you effectively about the right to child maintenance, the process to follow for the international claim of the same and the most effective method to obtain the recognition and/or execution of a maintenance judgment in Spain.

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International Maintenance Claims

How to claim maintenance in cross-border proceedings?

Lawyers specialised in International Maintenance Claims

When do the Spanish courts have jurisdiction to hear a maintenance claim?

What is the law applicable to a maintenance claim?

Can maintenance be claimed through administrative authorities?

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