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 LATEST
NEWS:
Twenty-First Diplomatic Session
adopts new Hague Convention and Protocol
23-11-2007
On Friday, 23 November 2007 the new
Hague Convention on the International Recovery of Child Support and
Other Forms of Family Maintenance and a Protocol on the Law Applicable to Maintenance
Obligations were
adopted by the Twenty-First Diplomatic Session of the Hague Conference on
Private International Law.
The Convention On
Maintenance Obligation- New York 1956
The
Convention was adopted and opened for signature by the United Nations
Conference on Maintenance Obligations convened pursuant to resolution 572
(XIX)1of the Economic and Social Council of
the United Nations, adopted on 17 May 1955. The Conference met at the
Headquarters of the United Nations in New York from 29 May to 20 June
1956. For the text of the Final Act of the Conference, see United Nations,
Treaty
Series.
The law rquires
members of the same family to provide mutual assistance on
the basis of family solidarity: parents must feed, educate and maintain
their children; in some Member States children must assist their parents
in case of need; a divorced spouse is obliged to pay maintenance to a
former spouse who has custody of their children. This obligation is
generally discharged by a monthly payment known as maintenance. The court
fixes the amount of the payment and the conditions for its variation but
it may exempt a parent from that obligation if he or she undertakes to
house, feed and maintain a child.
In principle,
maintenance payments are personal and cannot be transferred to anyone
else. If your maintenance payments are in arrears you can immediately take
court action to enforce payment. In some Member States you can request an
attachment order for the amount of maintenance against sums payable to the
debtor by other persons (e.g. an employer or a bank) If civil enforcement
proceedings do not produce the desired result, in some circumstances you
may be entitled to apply to the court to have the maintenance collected
through the national revenue authorities.Lastly, some Member States have
public funds available if a maintenance creditor fails to
pay.
THE MAINTENANCE ORDERS
(RECIPROCAL ENFORCEMENT)
ACT 1972
The 1972 Act facilitates the recovery of maintenance
where the parties live in different countries.
It deals with two distinct situations.Firstly, Part I deals with the
situation where the countries concerned ("reciprocating countries") have
agreed that amaintenance order made in one country may be
registered in
another country and thereafter enforced there.Secondly, Part II deals with
the situation where there is no such agreement for registration, or there
is no existing maintenance order, and a claim for maintenance must be
pursued in another country, the countries concerned ("convention
countries") having entered into a convention for the reciprocal
enforcement of claims for maintenance.
THE EUROPEAN
CONVENTION
is an agreement between Contracting States
to facilitate the recognition and enforcement of orders relating to the
custody of a child notwithstanding the
improper removal of the child across an international frontier.
The
scheme of both Conventions is to set up in each contracting state a
Central Authority with responsibility for assisting persons to obtain the
benefit of the Convention provisions,either by administrative action or by
judicial proceedings. The cost of judicial proceedings under the
Conventions is borne by the state where the proceedings are brought.
In most countries this is achieved by making legal aid available
automatically and without payment of a
contribution.
EUR-Lex provides
direct free access to European Union law. The system makes it possible to
consult the Official Journal of the European Union and it includes inter
alia the treaties, legislation, case-law and legislative proposals.
It offers
extensive search facilities
I won my court case but I still haven't been
paid.”
To force your debtor to pay up,
you will have to go to the enforcement authorities. They alone have the
power to force the debtor to pay, calling on the forces of law and order
if need be. EJN -enforcement
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The UN Definition of the
Family
"...
any combination of two or more persons who are bound together by ties of
mutual consent, birth and/or adoption or placement and who, together
assume responsibility for, inter alia, the care and maintenance of group
members, the addition of new members through procreation or adoption, the
socialisation of children and the social control of members"
Maintenance
Obligation
Note on the operation of the Hague Conventions relating to
maintenance obligations and of the New York Convention on the Recovery
Abroad of Maintenance
drawn up by
Michel Pelichet Deputy Secretary
General
HCCH- Hague
conference on private international law
.The Hague Conference on Private International Law
is an intergovernmental organisation, the purpose of which is "to work for the progressive unification of the rules of private international
law".
Work in Progress
-
Maintenance Obligations (future Hague Convention)
The
new global
convention
-
relating to maintenance obligations and of the New York Convention
on the recovery abroad
Australia
On 1
February 2002 Australia became a contracting state to the Hague
Convention on the Recognition and Enforcement of Decisions Relating to
Maintenance Obligations 1973 (Convention #23). The other signatories
to the Hague Convention are mainly European countries that Australia
previously had no reciprocal arrangements with and relied on applications
to be sent under the United Nations Convention (see below). The convention
applies to both spousal and child support obligations. It has the effect
of establishing bilateral reciprocal agreements with other contracting
states to recognise and enforce maintenance decisions made by judicial or
administrative authorities in convention countries....
United- State
Since
1996, when Congress for the first time specifically authorized
federal-level agreements regarding child support enforcement, the United
States has entered into a number of reciprocal agreements, which do not
require U.S. Senate advice and consent. For a current list of countries
where we have a bilateral agreement in force, see the HHS Office of Child Support Enforcement Foreign
Reciprocating Countries page ..........
United
Kingdom
resident who wishes
to apply to obtain maintenance from a person overseas should
approach
- their local magistrates' court (or county court
where the order was made) if they have an existing court order for
maintenance; or
- their local magistrates' court if there is no
existing order
They may apply for their order to be enforced in
the country where the payer resides. Procedures also exist to enable an
applicant to ask the foreign authorities to create an order for
maintenance on their behalf. There is no need for the applicant to engage
a solicitor. Court staff will help the applicant and will forward the
application to the relevant authority. The authority will check that the
application is in order and send it to the foreign authority or court for
registration and enforcement against the person living there.
http://www.csa.gov.uk/new/contact/remo.asp
Scotland
There are a
number of schemes in operation that offer various options to pursue a
claim for maintenance, depending on the country involved. Arrangements are
made under Parts I and II of the Maintenance Orders (Reciprocal
Enforcement) Act 1972 and broadly speaking these arrangements fall
into the following categories (see chapter 6 for a list of countries to
which these arrangements apply):
http://www.scotland.gov.uk/library2/doc05/omfa-07.htm
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