Council Regulation (EC) No 4/2009 governs, among other aspects related to maintenance obligations, the rules on the attribution of international jurisdiction and the determination of the applicable law.
The maintenance obligations in question are those arising from family relationships, kinship, marriage, or affinity.
This Regulation applies to cross-border situations, for example, where one parent required to pay maintenance for a child lives in one country, and the other parent lives with the child, who is the maintenance creditor, in another country — both being Member States of the European Union and therefore subject to the rules of this Regulation.
If the exercise of parental responsibility for a child has already been regulated and one parent wishes to request a change in the established maintenance, this request is not linked to the regulation itself. It is considered a separate request to be addressed in its own legal action.
The question that arises is which court has international jurisdiction to hear this action.
According to the rules set out in Article 3 of the Regulation, specifically paragraphs (a) and (b), the criterion that determines jurisdiction is the habitual residence.
Thus, the court of the country where the defendant in the action has their habitual residence, or alternatively, the court of the place of habitual residence of the maintenance creditor, has international jurisdiction.
For example, if a father habitually resides in Germany and, under a parental responsibility ruling, is obligated to pay maintenance for his child, and he believes the maintenance amount should be reduced, he must file the action against the child's mother, who represents the child in court. Therefore, the action must be brought before the court of the country where the child resides with the mother. If the mother and child live in Italy, then the Italian court will have jurisdiction.
On the other hand, if the mother living in Italy wishes to bring a maintenance action against the father to increase the amount of maintenance paid to the child, she can choose between the Italian court (where the maintenance creditor resides) or the German court (where the defendant resides).
The situation changes if the maintenance request is connected to a proceeding concerning the exercise of parental responsibility that needs to be initiated or modified in any of its aspects. For example, if a change in the child's residence arrangements is requested, which may impact the maintenance amount or cost-sharing.
In this case, the court with international jurisdiction over the maintenance issue will be the one that has jurisdiction over the parental responsibility issue, as per Article 3(d) of the aforementioned Regulation 4/2009.
To determine the internationally competent court, the rules laid down in Council Regulation (EU) No 2019/1111 of 25 June 2019, particularly those on jurisdiction in matters of parental responsibility, must be considered.
Indeed, in such situations, Article 7 of this Regulation provides that jurisdiction over matters of parental responsibility lies with the court of the Member State where the child has their habitual residence at the time the proceedings are initiated. Therefore, in the example above, the Italian court would have jurisdiction regardless of who initiates the process.
Since maintenance obligations are not limited to parents and children, and can involve ex-spouses or even siblings (as in Portuguese law, which under Article 2009 of the Civil Code, states that siblings are mutually obligated to provide maintenance), it is important to clarify that in addition to paragraphs (a) and (b) of Article 3 of Regulation No 4/2009, paragraph (c) must also be considered. This provision determines a solution similar to paragraph (d).
In other words, the court with international jurisdiction will be the one that, under the law of the forum, has jurisdiction to hear the case concerning personal status — for example, a divorce proceeding in which one spouse requests maintenance from the other.
To be more specific, in a case where the French court has international jurisdiction to hear a divorce action (based on the rules set out in Regulation 2019/1111 on matrimonial matters), it will also have jurisdiction to hear the associated maintenance request — regardless of whether the maintenance creditor habitually resides in France (Article 3(b) of Regulation 4/2009), or whether the defendant resides in a country other than France (Article 3(a) of the same Regulation).
However, it must be noted that this attribution of jurisdiction over maintenance claims to the court with jurisdiction over the main action (e.g., divorce) only applies — overriding the habitual residence criteria — if that jurisdiction is not based solely on the nationality of one of the parties.
In the last example (divorce action), if the French court's jurisdiction is based solely on the fact that both spouses are French nationals, then jurisdiction over the maintenance claim reverts to the court of the habitual residence of the defendant or the maintenance creditor.
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