What can I do if the maintenance debtor, who is living abroad, does not pay the allowance for my son?
18 April 2016
At times, maintenance debtors living abroad do not fulfil their obligations with creditors (generally minors) based in Spain.
If an individual finds himself/herself in this situation, in other words, if, for example, it is a mother who has full custody of her minor son and his father has either never paid maintenance allowance or has stopped paying it, what legal resources does the mother have to obtain outstanding payments if the debtor does not live in Spain?
If the debtor has never contributed allowance, the creditor, or on his or her behalf, the custodial parent (in the case of the mother), files for legal proceedings to claim it in Spain or even in the foreign country where the debtor is living.
If the claim is made in Spain to collect what is owed from the debtor living abroad, it is necessary to recognise and/or enforce the judgement abroad. This procedure is also necessary when there is a judgement that orders a debtor to pay maintenance that he/she has contributed for a certain time but all of sudden stopped doing so.
IF THE DEBTOR LIVES IN THE UNION EUROPEAN, IT IS MORE STRAIGHTFORWARD
If the debtor lives in a European Union member state, this procedure is easier because Community Regulation 4/2009 on Maintenance Proceedings is applied, whereby the judgement of another member state can be enforced directly in any other European Union member state without the requirement to certify the judgement or a «declaration of enforceability».
In other words, and for the purpose of clarifying this issue, if the mother in my example has obtained a Spanish judgement that orders the father of the child living in France to pay maintenance, this judgement will be considered as if it were a French judgement and enforced with immediate effect, thereby enabling rapid collection of outstanding amounts.
The problem arises if the maintenance creditor who obtained the order lacks sufficient financial resources to hire, for example, a lawyer in France whose intervention is necessary to secure enforcement of the Spanish judgement in the country where the debtor is residing, in this case France.
Under these circumstances, the Regulation grants the party with limited financial resources access to legal aid whereby the assistance from the lawyer is provided free of charge.
Additionally, the Regulation facilitates the enforcement of maintenance judgements between Community States by establishing free legal course for all interested parties, regardless of their level of financial income. This is the system of cooperation between authorities of Member States.
The Spanish mother in the example may apply to the Central Authority (AC) of Spain (Sub-directorate General for International Legal Cooperation belonging to the Ministry of Justice), which will refer the request to the corresponding French authority responsible for overseeing the enforcement of the Spanish judgement in this country.
The system between Central Authorities has the advantage of not costing anything for the interested party, but the disadvantage in the sense that the enforcement may be delayed due to proceedings carried out through intermediaries.
OUTSIDE THE EUROPEAN UNION
If the intention is to file a claim or recognise a Spanish judgement in a non-EU foreign state, the cost, speed and efficiency of proceedings will depend on the country where the debtor resides, resorting to the fundamental United Nations Convention on the Recovery Abroad of Maintenance, signed in 1956 in New York.
This Convention, which is made up of more than 60 countries worldwide, establishes a free maintenance recovery system with participation from Central Authorities for the creditor living in a Member State who wishes to reclaim it from a debtor living in another. One of the most important effects of this Convention is that the cross-border enforcement of provisional measures concerning maintenance may be requested, meaning that the creditor does not have to wait until the judgement is final before requesting maintenance collection in another country.
On a final note, if the maintenance recovery or judgement is to be enforced in a country with which there is no applicable international convention, for example with the United States of America, the difficulties arising when recovering maintenance are going to be greater. This is firstly due to the cost of legal practitioners whose intervention is required in proceedings (essentially lawyers), and also because in the case of seeking recognition of the judgement in this country, or any other with which there is no convention, finality is required, thereby possibly extending the collection times of maintenance, which is often urgently needed by the creditor.
Bachelor’s Degree and PhD in Law from the Complutense University of Madrid and Diploma in French Law from the Jean Monnet Sceaux Faculty at University of Paris-Sur XI. She is currently working at Winkels Abogados law firm and lectures in Private International Law at Rey Juan Carlos University in Madrid.