Tutorial 3 - Family Law in Private International Law: Maintenance
Task 6 - Case: claim for maintenance
Maintenance Regulation - Hague Protocol on Maintenance
1. Is the court of Germany competent to hear the maintenance claim?
There is a crossborder element in this case as the spouses both have a different nationality
and they first lived in the UK and later on in Germany. (Mention all international elements)
Why we have one coherent instrument is that we are talking about real people here, so an
emotional element AND it is a burden on the state if the spouse does not receive
maintenance.
Participating countries: the UK opts in into jurisdiction, R&E and coorporation, but NOT on
the applicable law, so art. 15 does not apply.
Denmark opts in into jurisdiction and R&E. So not in applicable law and not in coorporation.
Most important to remember is that UK & Denmark both did not opt-in in applicable law, so
for both is art. 15 not applicable.
Write in the exam that the MS are participating fully (or not).
Probably, the Maintenance Regulation is applicable, but in order to establish its applicability
the scope must have been determined:
- Material scope (what is the subject matter): art. 1 of the Maintenance Regulation
states that the regulation shall apply to obligations arising from a family relationship,
parentage, marriage or affinity, therefore the regulation is applicable. (marriage or
affinity)
- Formal scope (who does it touch upon): the formal scope of the Maintenance
Regulation is UNCLEAR! We have a universal formal scope, with a limitation
because there needs to be a sufficient connection with a MS (see last sentence of
art. 7) we look at art. 3 explains that it does touch upon the parties here as they are
habitually resident. We look for a personal or geographical connection between the
operative facts and the MS.
- Temporal scope (whether it applies at the time): arts. 75 and 76 (in force).
First we take a look at art. 4, whether the parties have made a choice of the applicable law.
Always check this and if no choice, then write that no choice has been made and move on to
the next article.
We also have to discuss art. 5, the prorogation.
When applying the rule of art. 3, we check all the alternatives as they are alternative
connecting factors. So, (a) Germany, (b) Germany, (c) you check art. 3 of Brussels II bis
(both a and b!) we find that Germany is applicable. Alterntive (d) is not applicable. The
defendent is in our case the husband, and he lives in Germany. This means that the German
court is competent to hear the maintenance case.
2. Which country’s law is applicable to the maintenance claim?
Art. 15 of the Maintenance Regulation says that the applicable law is the Hague Protocol on
Maintenance.
- Material scope (to what issue does it apply): art. 1 explains that this case falls within
the protocol. Art. 2 also explains that it applies to non-contracting states.
- Formal scope (to whom does it apply): art. 2 as it is a universal scope.
Task 6 - Case: claim for maintenance
Maintenance Regulation - Hague Protocol on Maintenance
1. Is the court of Germany competent to hear the maintenance claim?
There is a crossborder element in this case as the spouses both have a different nationality
and they first lived in the UK and later on in Germany. (Mention all international elements)
Why we have one coherent instrument is that we are talking about real people here, so an
emotional element AND it is a burden on the state if the spouse does not receive
maintenance.
Participating countries: the UK opts in into jurisdiction, R&E and coorporation, but NOT on
the applicable law, so art. 15 does not apply.
Denmark opts in into jurisdiction and R&E. So not in applicable law and not in coorporation.
Most important to remember is that UK & Denmark both did not opt-in in applicable law, so
for both is art. 15 not applicable.
Write in the exam that the MS are participating fully (or not).
Probably, the Maintenance Regulation is applicable, but in order to establish its applicability
the scope must have been determined:
- Material scope (what is the subject matter): art. 1 of the Maintenance Regulation
states that the regulation shall apply to obligations arising from a family relationship,
parentage, marriage or affinity, therefore the regulation is applicable. (marriage or
affinity)
- Formal scope (who does it touch upon): the formal scope of the Maintenance
Regulation is UNCLEAR! We have a universal formal scope, with a limitation
because there needs to be a sufficient connection with a MS (see last sentence of
art. 7) we look at art. 3 explains that it does touch upon the parties here as they are
habitually resident. We look for a personal or geographical connection between the
operative facts and the MS.
- Temporal scope (whether it applies at the time): arts. 75 and 76 (in force).
First we take a look at art. 4, whether the parties have made a choice of the applicable law.
Always check this and if no choice, then write that no choice has been made and move on to
the next article.
We also have to discuss art. 5, the prorogation.
When applying the rule of art. 3, we check all the alternatives as they are alternative
connecting factors. So, (a) Germany, (b) Germany, (c) you check art. 3 of Brussels II bis
(both a and b!) we find that Germany is applicable. Alterntive (d) is not applicable. The
defendent is in our case the husband, and he lives in Germany. This means that the German
court is competent to hear the maintenance case.
2. Which country’s law is applicable to the maintenance claim?
Art. 15 of the Maintenance Regulation says that the applicable law is the Hague Protocol on
Maintenance.
- Material scope (to what issue does it apply): art. 1 explains that this case falls within
the protocol. Art. 2 also explains that it applies to non-contracting states.
- Formal scope (to whom does it apply): art. 2 as it is a universal scope.
