Known as the Hague Maintenance Convention or the Hague Child Support Convention, the international convention governs the execution of court judgments involving child assistance (and other types of family support) outside of the country of origin.
The Hague Conference on Private International Law in 2007 held a number of conventions in the field of private international law, one of which is this one. It is available to all states and regional economic integration organizations if they are made up of sovereign nations exclusively and have sovereignty in the convention’s substance.
The word ‘Protocol’ was adopted to identify the document with a view to highlighting its functional relationship with the 2007 Convention, and also its joint purpose with the 2007 Convention to enable the successful international recovery of family maintenance. A key goal of the Protocol is making cross-border maintenance choices easier for creditors by providing options that benefit them. While designed to complement and augment the 2007 Convention, the Protocol is an independent document and thus is available to ratification and accession by any State, including States not a party to the 2007 Convention
The fundamental goal of the Protocol is to create universal international principles for the determination of the law relevant to maintenance responsibilities. As a result of the significant disparities across national legal systems, it was determined that including applicable law provisions in the 2007 Convention would be impracticable. For instance, the law of the forum is routinely applied to maintenance judgments in many states with a common law heritage or in states with administrative mechanisms for recovering maintenance.
The word ‘Protocol’ was adopted to identify the document with a view to highlighting its functional relationship with the 2007 Convention, and also its joint purpose with the 2007 Convention to enable the successful international recovery of family maintenance. A key goal of the Protocol is making cross-border maintenance choices easier for creditors by providing options that benefit them.
Cases involving child support are governed by the Child Support Convention. Applications for the recognition and enforcement of spousal support, when brought in connection with a claim for child support, also come within the scope. If a claim for spousal support is not supported by one for child support, the Convention still applies, although administrative cooperation between Central Authorities may not be possible. Contracting Parties can choose to extend the scope of the Convention (or any part of it, e.g., extending Central Authority services to spousal support not accompanied by a claim for child support) to any other maintenance obligations arising from a family relationship, parentage, marriage, or affinity (Art. 2(3)).
It came into force on January 1st, 2013, between Norway and Albania, with Bosnia and Herzegovina (2013), Ukraine (2013), the European Union (2014, except with respect to Denmark), and Montenegro (2017) following suit. The United States and the United Kingdom are expected to join the convention in the near future. Serbia and New Zealand are expected to join the convention in the near future. Due to the twenty-seven EU nations’ adoption of the treaty, forty-two countries worldwide are covered.
MAINTENANCE UNDER THE CONVENTION
Three forms of maintenance form the core of the convention and are defined in article 2, being [A.] obligations towards children below the age of 21 (or 18, if a reservation is made); [B.] spousal support in a case linked to child support and [C.] spousal support (with limited governmental assistance in obtaining results) A state’s adoption of a treaty is hampered by a reservation under international law. The Vienna Convention on the Law of Treaties (VCLT) of 1969 defines a reservation as an unambiguous assertion by a State that it intends to exclude or modify the legal effect of certain treaty provisions in their application to that State, regardless of how it is phrased or named.
In consequence, a reservation allows the state to be a party to the treaty while excluding the legal effect of that specific provision in the treaty to which it objects. States cannot take reservations after they have adopted the treaty; a reservation must be submitted at the time that the treaty affects the State. The Vienna Convention did not create the concept of reservations but codified existing customary law. As a result, even countries that have not signed the Vienna Convention do so informally. Because the Vienna Convention does not distinguish between reservations and interpretive statements, it might be difficult to tell one from the other. In contrast to a reservation, a declaration is attached to a state’s consent to a treaty to explain or interpret what the state deems unclear and does not affect the state’s legal obligations.
A country can further declare to apply the convention to other forms of family maintenance. This wider scope is only valid between two member states if both have an increase in scope.
SCOPE OF DUTIES UNDER THE PROTOCOL
The scope of maintenance duties of the Protocol is greater than the 2007 Convention and specifies the law applicable to maintenance obligations based on any familial link. Included in its scope are any maintenance duties which come from a familial connection, paternity, marriage, or affinity.
A specific defensive provision has been added in the Protocol to somewhat reduce its vast reach. A debtor may oppose a creditor’s claim on the premise that there is no such duty under both the law of the State of the debtor’s habitual residence and the law of the State of the common nationality of the parties if there is one. This defense is applicable to any maintenance obligation except those to children arising out of a parent-child relationship or those between spouses or ex-spouses.
Finally, the implementation of the legislation decided under the Protocol may be denied if its consequences would be obviously opposed to the public policy of the forum.
Specific maintenance creditors are given preference under the Protocol’s ‘cascading’ subsidiary applicable law requirements. In order to provide the creditor the best chance of getting a court order for maintenance, several regulations have been put in place.
The types of creditors who will benefit from these additional rules include children who are owed maintenance by their parents (regardless of the age of the child), any person who has not attained the age of twenty-one years who is owed maintenance by persons other than parents (with the exception of maintenance obligations arising between spouses, ex-spouses, and parties to a marriage which has been annulled), and parents owed maintenance by their children.
The application of the law of the forum will benefit a creditor in one of the categories described above who are unable to recover maintenance under the law applied under the main rule.
The law of the state in which the debtor has their habitual residence will also apply if a creditor seizes that authority unless the creditor is unable to get maintenance from the debtor under this legislation, in which case the law of that state’s habitual residency would again apply.
Finally, it is specified that if the creditor is unable to acquire maintenance from the debtor under the general rule or the additional rules, the law of the State of the debtor and creditor’s common nationality, if there is one, would apply.
WHAT DOES THE HAGUE MAINTENANCE CONVENTION DO
When it comes to child support and other forms of family support, the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance, also known as the Hague Maintenance Convention or the Hague Child Support Convention, governs the extraterritorial enforcement of judicial decisions. Several private international law treaties were signed during the 2007 Hague Conference on Private International Law. The convention is available to all sovereign nations, as well as regional economic integration organizations, as long as they are formed of sovereign states solely and have sovereignty in the convention’s substance. As a result of the EU adoption of the convention, the treaty applies to forty-two nations across the globe.
The treaty came into effect on January 1, 2013, after Albania and Norway ratified it. After the end of 2013, the convention took effect in Bosnia-Herzegovina and Ukraine. Regional Economic Integration Organization (REIO): The European Union became a member in 2014. Because the convention’s subject matter is entirely within EU jurisdiction, the EU has become a party rather than the individual member states. Except for Denmark, all twenty-seven member states of the European Union are covered by the convention, which only applies to areas that are a part of the EU. Until the conclusion of the transition period on January 1, 2021, the United Kingdom was also covered by EU territory in terms of this treaty. Montenegro and Turkey acceded to the convention in December 2015 and July 2016, respectively, which went into effect on 1 January 2017 and 2 February 2017 for those countries who had not objected to the accession.
Following approval in September 2016, the convention went into effect for the United States on January 1st, 2017. The pact was adopted by the Senate of the United States in 2010, and federal legislation implementing it has been enacted (Preventing Sex Trafficking and Strengthening Families Act, public law 113-183). In March 2016, fifty-four jurisdictions (the fifty states, DC, the Virgin Islands, Puerto Rico, and Guam) enacted legislation at the state level (UIFSA 2008), which was necessary for ratification.
GOVERNING LAW OF THE CONVENTION
The convention does not limit the relevant law to the laws of the parties to the convention; a law from a non-state party may thus be selected. In most cases, the law of the creditor’s (the person requesting support) habitual domicile governs the situation. If there is no marital connection, three laws are evaluated in a cascade concerning parental responsibility and parental right, being [A.] the law of the debtor (general rule under the convention), but if that leads to no maintenance [B.] the law of the forum, and if that leads to no maintenance and [C.] law of the common nationality.
If the debtor’s usual abode is taken by the court, the first two relevant statutes are reversed, resulting in the cascade of consequences being that of the law of the forum (the law of the debtor’s habitual residence), but if that leads to no maintenance followed by the law of the creditor (general rule under the convention), and if that leads to no maintenance and then finally the aw of the common nationality.
If ‘the law of another State, in particular the State of their last joint habitual residence, has a deeper relationship with the marriage,’ any party may object to the application of the law of the creditor’s habitual residence in the case of former spouses. It is possible for a creditor to challenge the use of the law of their habitual residence if both parties share a nationality and the law of their nationality or the law of the debtor’s habitual residence would not result in maintenance. However, this is only possible if the case does not involve child support. Both parties may pick the legislation that governs the maintenance in instances that do not include child support (for children under the age of eighteen) or vulnerable persons. This would be considered under the law of nationality of one of the parties or the law of the habitual residence (of one of the parties.)
This would also provide for the law applied to their property regime or to the law applied to their divorce or legal separation (also judicial separation, separate maintenance, divorce a mensa et thoro, or divorce from bed-and-board) is a legal procedure through which a married couple may formalize a de facto separation while remaining legally married. A court order granting a legal separation is required. An order of legal separation frequently specifies child custody options, such as exclusive custody or shared parental responsibility, as well as child support in circumstances where children are involved.
The 2007 Protocol updates the current 1956 and 1973 Hague Conventions on the law applicable to maintenance duties by making substantial modifications to these former standards while keeping some of their still highly relevant elements. In comparison with the preceding Hague Conventions, the Protocol contains three key novelties.
Initially, whilst also preserving the habitual residence of the creditor as the main connecting factor, and broadening it to maintenance obligations among spouses and ex-spouses, the Protocol strengthens the role of the lex fori, which is encouraged, for assertions made by certain ‘privileged’ classes of creditors, to the rank of principal criterion, with the law of the habitual residence of the creditor in such cases playing only a subsidiary role.
Next, an escape clause based on the principle of intimate relationship was introduced for responsibilities between spouses and ex-spouses. With respect to any maintenance duty, the parties now have the option of choosing their own forum law for particular proceedings, as well as an always-available alternative that may be utilized subject to certain requirements and limits about the relevant law.
OVERALL IMPACT OF THE CONVENTION
The Protocol, unlike the 2007 Convention which exclusively applies in dealings between the Contracting States, has an erga omnes impact. That is, its provisions will apply in a Contracting State to the Protocol even if the relevant law is that of a non-Contracting State. For instance, a creditor located in a non-Contracting State who commences proceedings in a Contracting State (e.g., in the State of the debtor’s domicile) shall enjoy the advantage of the adoption of uniform provisions beneficial to the creditor laid forth in the Protocol.
Finally, the Protocol establishes a substantive norm that must be implemented by the authorities of a Contracting State regardless of whether the relevant law is foreign law or the law of the forum. The rule specifies that the needs of the creditor and the resources of the debtor, and just about any compensation which the creditor was accorded in place of periodical maintenance payments (i.e., a ‘lump sum’ payment), must therefore be factored in determining the amount of maintenance, even if the applicable law provides otherwise
1. The protocol shall determine the law applicable to maintenance obligations arising from a family relationship, parentage, marriage, or affinity, including a maintenance obligation in respect of a child regardless of the marital status of the parents.
2. ‘Any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons.
3. The Protocol provides a special rule for maintenance obligations between spouses, ex-spouses, and parties to a marriage that has been annulled. In principle, in a break from the immutable connection to the law applied to the divorce under Article 8 of the 1973 Convention, the law of the State of the habitual residence of the creditor applies, subject, however, to an escape clause.
4. The Protocol provides that the right of a public body to seek reimbursement of a benefit provided to the creditor in place of maintenance shall be governed by the law to which that body is subject.
5. With the exception of Denmark, the convention came into force on January 1, 2013, between Norway and Albania. Bosnia-Herzegovina (2013) and Ukraine (2013) followed suit, as did Montenegro (2017), the United States, Turkey, and Kazakhstan in 2017, Brazil in 2017, Honduras in 2017, and Belarus in 2018, with the United Kingdom in 2021 and New Zealand following suit in 2021.
6. Burkina Faso, Canada, and North Macedonia were signatories but did not ratify.