REMOR - MAINTENANCE ENFORCEMENT
EUROPEAN RESEARCH PROJECT

Questionnaire

The full text of the questionnaire together with the national replies:

Full text of the questionnaire
Reply from Italy
Reply from Latvia
Reply from Malta
- Reply to Remor questionnaire in Appendix 15
Reply from Romania

The text of the individual questions are set out below.

Questions

The Partners will send to the Main Partner all necessary documents and information required by the questionnaire:

Q1. National law on “maintenance obligation” (civil and private international law)
Q2. What is the “meaning” of maintenance / alimentary /assistance obligation in Your country?
Q3. Which is the competent authority to apply to?
Q4. Who is entitled to receive maintenance and who is obliged to provide maintenance?
Q5. What are the legal criteria by which manteinance obligations determinations are made?
Q6. Is it possible to recover the arrears?
Q7. Are the parties (debtor and creditor-beneficiary) free to fix the amount and/or to determine how or who have to pay maintenance?
Q8. Is it possible to dispose of maintenance obligation (assignability, negotiability, leviablity, seizurability)?
Q9. In which cases, according to domestic law, the beneficiary may lose his right to maintenance?
Q10. Maintenance/alimentary obligations and private international law matters (applicable law, competent judge, recognition and enforcement of judgements/decisions)

The Partners are also invited to comment on any other matter that they consider relevant to the purposes of the Remor Project and to address the questionnaire itself to other “team mates”, who may also give information and materials on other member States’ systems.

Q1. National law on “maintenance obligation” (civil and private international law)

Please provide the Coordinator with all national legislation (both substantive and procedural), soft law measures (i.e. recommendations, draft of legislative measures) and case-law, which may be relevant to the development of the Remor project’s objectives and connected to the proposal of the Regulation on “maintenance obligation”. Please note that all documents need to be duly translated in English and submitted on word-pdf-htlm format, so that they can be up-loaded on the web-site.

Regarding private international law, please note that, in addiction to the relevant discipline on competent Authority, applicable law, recognition and execution of decisions, it is necessary to specify whether your Country has ratified international (multilateral or bilateral) treaties on maintenance obligations and/or on any other topic related to maintenance obligations and, if so, please provide the Main Partner with all relevant legislation. Please specify also if your Country has entered any reservation.

Q2. What is the “meaning” of maintenance / alimentary /assistance obligation in Your country?

It is necessary to understand what is the concept that “maintenance” and “maintenance obligation” underlie according to your domestic law. In particular, we wish to know if in your Country there are different legal terms for maintenance, alimentary and assistance obligations (or, on the contrary, if “maintenance” obligation coveres all kinds and extent of this type of obligation).

Please provide the Main Partner with all information useful to define these concepts. Please specify also whether the concept of maintenance obligation used in your Country is different from the one used by the Court of Justice of the European Communities in its case-law (see in particular C-120/79; C-220/95) and, if so, to what extent.

Q3. Which is the competent authority to apply to?

Please indicate which courts/administrative bodies within your system have jurisdiction to consider applications on maintenance obligations. Please specify:

(i) whether the competent Authority is a judicial or an administrative body;
(ii) whether the competent Authority has a specific competence on problems regarding marriage-separation-divorce and or minors;
(iii) what kind of measures the competent Authority may apply;
(iv) whether legal aid is required for this sort of proceeding and, if so, on what conditions;
(v) what procedures and measures exist for the enforcement of the judicial and or administrative orders.

Q4. Who is entitled to receive maintenance and who is obliged to provide maintenance?

It is therefore important to know the persons to whom the Regulation shall apply. As pointed out in the Green Paper of the Commission on maintenance obligations, the types of relationship that can generate a maintenance obligation between two people vary from one State to another, since sometimes only parents and their children or spouses or ex spouses are concerned, whereas elsewhere the family circle is broader, extending even to living together persons and “civil (or registered) partnership”. Please indicate:

(i) who is entitled to receive maintenance and who is obliged to provide maintenance under domestic law;
(ii) up to what age and under which condition a child may benefit of a maintenance allowance;
(iii) if your Country has adopted (or is going to adopt) specific legislation on “registered partnership”.

Moreover, the recovery of maintenance is sometimes handled by public agencies, acting on behalf of the creditor or subrogated to the creditor’s rights. Please indicate whether under your domestic law public bodies/agencies may take an action for the recovery of maintenance obligation. Please provide also any relevant legislation, case-law, soft law on this specific topic.

Q5. What are the legal criteria by which manteinance obligations determinations are made?

In particular it is necessary to know

how maintenance obligations may be fulfilled (i.e. directly, by giving to the beneficiary a determined amount of money or indirectly, as for example by paying costs and/or expenses for services used by the beneficiary);
whether there is a difference in the legal status of mothers and fathers in providing maintenance obligations towards their child and/or children; - what determinations are made as regard maintenance obligations towards children in case of joint custody;
whether legislation and/or case law provide criteria for the assessment of maintenance obligation (like length of marriage, financial capacity of spouses, etc.), and, in the affirmative, it is important to know them, in order to make a comparative analysis;
whether in case of breach of obligations arising from the marriage, the right of maintenance might be reduced and/or limited and/or eliminated; - whether domestic legislation provides automatic adjournment of maintenance obligation taking into account the changes in the costs of living and or other criteria.

Please provide all necessary documents and information at this regard.

Q6. Is it possible to recover the arrears?

The question of arrears, that is to say the recovery of maintenance awarded by a court but not actually paid, arises in a number of cases. As expressly pointed out in the Green Paper, difficulties can arise in particular if the law of the country where the judgment is to be enforced provides that the judgment awarding maintenance can be enforced, after exequatur, only for future payments, or permits the recovery of arrears only in respect of a limited period.

Regarding this it would be interesting to know

(i) whether under domestic law arrears may be awarded and
(ii) with specific reference to the enforcement of decisions ordering the payment of arrears, whether limitation rules are regarded as procedural or substantial.

Q7. Are the parties (debtor and creditor-beneficiary) free to fix the amount and/or to determine how or who have to pay maintenance?

Please explain whether under domestic law the party entitled to receive maintenance and the party obliged to provide maintenance are free to determine the amount of the payment/obligation and how to pay (i.e. directly, by paying an amount of money to the beneficiary and/or indirectly, by paying for example some specific costs and/or expenses) or whether they have to follow specific criteria and limits indicated by legislation, which has an imperative character.

Q8. Is it possible to dispose of maintenance obligation (assignability, negotiability, leviablity, seizurability)?

Please give all necessary information on actions and remedies that may be taken in case the maintenance debtor does not pay, in order to force him/her to pay (like seizure orders, salary attachment order, etc.) Please specify whether third parties may recover their credits on maintenance credits.

Q9. In which cases, according to domestic law, the beneficiary may lose his right to maintenance?

It is important to know whether under domestic law and/or case law the beneficiary of maintenance obligation may loose his right of maintenance and, in the affirmative, in which cases. Furthermore, we wish to know whether the ex-spouse may loose his/her right in case he/she starts to live with a new partner. Please provide all necessary documents and information to this regard.

Q10. Maintenance/alimentary obligations and private international law matters (applicable law, competent judge, recognition and enforcement of judgements/decisions)

It is necessary to know the relevant legislation on private international law matters. Please indicate:

(i) in which cases the law of your Country is applicable (i.e. indicate the conflict of law rules that determine the law applicable to the settlement of an international dispute);
(ii) which law is to be applied when your Country law is not applicable;
(iii) in which cases your judges are competent to take decisions on maintenance obligations;
(iv) what conditions need to be satisfied for the recognition and execution of a foreign decision/judgment;
(v) whether a foreign decision/judgment establishing right and duty of maintenance between partners living together or “registered partners” may be recognized and enforced or not.

Please provide all necessary documents and information to this regard.