Decree of the Minister for Foreign Affairs No. 132 / 1976 Coll.
Decree of the Minister for Foreign Affairs on the Convention on Recognition and Enforcement of Maintenance Decisions
Valid
Effective from 01.08.1976
132
DECLARATION
Minister for Foreign Affairs
of 23 August 1976
on the Convention on the Recognition and Enforcement of Maintenance Decisions
On 2 October 1973, the Convention on the Recognition and Enforcement of Maintenance Decisions was negotiated in The Hague at the 13th session of the Hague Conference on Private International Law.
On behalf of the Czechoslovak Socialist Republic, the Convention was signed in The Hague on 6 February 1975.
The Convention was approved by the Federal Assembly of the Czechoslovak Socialist Republic and the President of the Republic ratified it, subject to Article 26 (2) (a) and (b), according to which the Czechoslovak Socialist Republic reserves the right not to recognise or enforce a decision or reconciliation on maintenance obligations under Article 26 (2) (b). (a) and (b) The Convention, since the Czechoslovak legal order does not know the maintenance obligation between the persons listed therein.
The instruments of ratification of the Czechoslovak Socialist Republic were deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, the depositary of the Convention, on 12 May 1976.
The Convention entered into force for the Czechoslovak Socialist Republic on 1 August 1976 on the basis of Article 35 (1) thereof.
The Czech translation of the Convention is being announced simultaneously.
Minister:
Ing. Chupek v. r.
CONVENTION
on the recognition and enforcement of maintenance decisions
Contracting States to this Convention
Desiring to adopt common provisions governing mutual recognition and enforcement of decisions on maintenance obligations for adults,
Desiring to bring these provisions into line with the Convention of 15 April 1958 on the Recognition and Enforcement of Decisions on child maintenance,
have decided to conclude the Convention for this purpose and have agreed on the following provisions:
Scope of the Convention
This Convention shall apply to decisions given by a judicial or administrative authority of a Contracting State on maintenance obligations arising from family, parental, marital or brother-in-law relationships, including maintenance obligations on children born outside marriage, between:
1. the person entitled to maintenance and the person liable to provide maintenance; or
2. a person required to provide maintenance and a public institution seeking reimbursement of the allowance granted to the person entitled to maintenance.
This Convention shall also apply to reconciliation between the same parties which, in those cases, shall be concluded by the judicial or administrative authorities or which shall be concluded before those authorities (hereinafter referred to as "conciliation ').
This Convention shall apply to decisions or conciliations, whatever they are designated.
It also applies to decisions or conciliations amending earlier decisions or conciliations, even if they come from a non-Contracting State.
This Convention shall apply regardless of the international or national nature of the entitlement to maintenance and of the nationality or residence of the participants.
Where a decision or settlement does not relate only to maintenance obligations, the effectiveness of the Convention shall be limited to that part of the decision or reconciliation which applies to maintenance obligations.
Conditions for recognition and enforcement
A decision given in a Contracting State shall be recognised or enforced in another Contracting State:
1. if issued by an authority competent pursuant to Article 7 or 8, and
2. If it can no longer be challenged by an ordinary remedy in the State in which it was issued.
Pre-enforceable decisions and interim measures may be recognised and executed in the requested State, even if they are subject to sound remedies if they can be issued and enforced in that State.
However, recognition or enforcement may be refused:
1. where recognition or enforcement of a decision is manifestly incompatible with the public policy of the requested State; or
2. where the decision has been reached by fraud in connection with proceedings; or
3. Where proceedings are pending before the authority of the requested State between the same parties and the same case, the procedure being initiated as first; or
4. Where a decision is incompatible with a decision given between the same parties and in the same case either in the requested State or in another State, in the latter case only if it fulfils the conditions required for recognition or enforcement in the requested State.
Notwithstanding the provisions of Article 5, a decision shall be recognised or enforced by default only if, under the law of the State whose authority issued the decision, the decision has been notified of the initiation of the procedure, including a statement of the nature of the claim, taking into account whether the party has had sufficient time to defend himself.
The authority of the State in which the decision was given shall be deemed competent under this Convention.
1. where the debtor or creditor was resident in the State in which the decision was given at the time of the initiation of the procedure; or
2. where both the debtor and the creditor were citizens of the State in which the decision was given at the time of the opening of proceedings; or
3. Where the defendant has submitted himself to the power of that authority either expressly or by expressing himself on the substance of the case, without contesting a lack of competence.
Notwithstanding the provisions of Article 7, the authority of the Contracting State which issued the maintenance entitlement decision shall be deemed to be competent within the meaning of this Convention if the right to maintenance is based on the divorce of a marriage, the annulment of marital cohabitation or a declaration that the marriage is invalid or has not been established, issued by the authority of the State whose jurisdiction in this matter has been recognised under the law of the requested State.
The authority of the requested State shall be bound by the facts on which the authority of the State where the decision was given has based its competence.
Where a maintenance decision affects several legal grounds and cannot be recognised or enforced as a whole, the authority of the requested State shall apply this Convention to that part of the decision which may be recognised or enforced.
Where the decision provided for an obligation to pay maintenance on a periodic basis, enforcement shall be ordered for both benefits already due and benefits due in the future.
Save as otherwise provided in this Convention, it shall not be permitted for the authority of the requested State to review the decision on the substance of the case.
Procedure for recognition and enforcement
Save as otherwise provided in this Convention, the procedure for recognition and enforcement shall be governed by the law of the requested State.
At any time, partial recognition and enforcement may also be requested.
Where legal aid or exemption from costs and expenses has been granted in whole or in part to the creditor in the State where the decision has been given, the most favourable legal aid or the most extensive exemption from costs and expenses, as provided for in the law of the requested State, shall be the responsibility of any action to recognise or enforce the decision.
The proceedings covered by this Convention shall not require the lodging of a security, guarantee or deposit, irrespective of their designation, which should ensure that the costs of the proceedings and the costs associated with them are reimbursed.
A participant requesting recognition or enforcement shall submit:
1. a complete and credible copy of the decision;
2. proof that there is no longer an appeal admissible in the State where the decision is given and, where necessary, enforceable;
3. where a decision is taken by default, the original or a certified copy of the proof that the party who did not appear at the hearing has been duly informed, under the law of the State where the decision was given, of the initiation of the procedure and of the nature of the claim;
4. evidence, as appropriate, that the participant has been granted legal assistance or exemption from charges and charges in the State where the decision was given;
5. a certified translation of the documents referred to above, except where the authority of the requested State does not require such a translation.
If the above documents are not submitted or do not allow the content of the decision to be verified by the authority of the requested State as to whether the conditions of this Convention are met, that authority shall allow the time limit for the submission of the necessary documents.
Verification or other formality may not be required.
Additional provisions concerning public institutions
A decision given against the debtor at the request of a public institution seeking compensation for a performance granted to the creditor shall be recognised and enforced under this Convention:
1. where a public institution can receive such compensation under the legal order to which it is subject; and
2. where the maintenance obligation between the creditor and the debtor is provided for under national law, to be applied under the rules of the private State's international law.
A public institution may apply for recognition or enforcement of a decision given between a creditor and a debtor, to the extent that it has provided a legal person under the legal order to whom it is subject, where it has the power to request, instead of the creditor, recognition and enforcement of the decision without further delay.
Without prejudice to the provisions of Article 17, a public institution applying for recognition or enforcement of a decision shall submit all documents proving that it fulfils the conditions of Article 18, paragraph 1 or Article 19 and that the performance has been granted to the beneficiary.
Aspects
A settlement which is enforceable in the State of issue shall be recognised and enforced under the same conditions as a decision, provided that such conditions can be applied to it.
Other provisions
The Contracting States under whose laws the transfer of property is restricted shall give the highest priority to the transfer of property intended to cover maintenance or costs and expenses arising from the exercise of entitlement under this Convention.
This Convention shall not prevent the use of any other international instrument in force between the State where the decision was given and the State of the requested or other legislation of the requested State, allowing the recognition or enforcement of the decision or of the reconciliation.
This Convention shall apply regardless of the duration of the decision.
If a decision has been given before the entry into force of this Convention between the State where the decision was given and the State addressed, it shall be recognised in the requested State only for payments due after such entry into force.
Any Contracting State may at any time declare that the provisions of this Convention shall be extended, in relations with States making the same declaration, to an official document (acte authentique) drawn up by or before the Authority and directly enforceable in the State where it is issued, provided that such provisions may be applied to such documents.
Each Contracting State may reserve, in accordance with Article 34, the right not to recognise or execute:
1. decisions or conciliations in so far as they concern maintenance for a period where the creditor has already reached the age of 21 years or has already married, except where the spouse or former spouse is required;
2. Decision or conciliation on maintenance obligations
(a) between relatives in the branch line,
(b) between persons who have been married;
3. decisions or conciliations which do not impose periodic maintenance payments.
A Contracting State which makes a reservation may no longer rely on this Convention in respect of decisions and settlements which it has ruled out.
Where the maintenance obligation in a Contracting State is governed by two or more legal regulations applicable to different categories of persons, any reference to the law of that State shall mean a reference to the legal order which determines its law as applicable to that category of persons.
Where the Contracting State consists of two or more territorial units in which the recognition and enforcement of the decision are governed by different legal rules:
1. any reference to the law, procedure or authority of the State where the decision was given shall mean a reference to the law, procedure or authority of the territorial unit in which the decision was given;
2. any reference to the law, procedure or authority of the requested State shall mean a reference to the law, procedure or territorial unit in which recognition or enforcement is sought;
3. any reference referred to in points 1 and 2 to either the law or the management of the State where the decision has been given or to the law or proceedings of the State of the requested person shall be interpreted as covering all the relevant legal standards and principles of the Contracting State in force in the territorial units of that Contracting State;
4. Any reference to the residence of the creditor or debtor shall mean residence in the territory of the entity in which the decision was given.
Each Contracting State may at any time declare that it shall not apply any of these rules in the implementation of certain provisions of this Convention.
This Convention replaces, in the relations between the States which are its members, the Convention on Recognition and Enforcement of Decision on child maintenance, concluded in The Hague on 15 April 1958.
Final provisions
This Convention is set out for signature to States which were members of the Hague Conference on Private International Law at the time of its XII. session.
The Convention will be ratified, accepted or approved and instruments of ratification, acceptance or approval deposited with the Ministry of Foreign Affairs of the Netherlands.
Any State which has become a member of the Hague Conference on Private International Law after its 12th session, or which is a member of the United Nations or of an expert organisation thereof, or which is a member of the Statute of the International Court of Justice, may accede to this Convention after its entry into force in accordance with Article 35 (1).
The Act of Access will be deposited with the Ministry of Foreign Affairs of the Netherlands.
Access shall be effective only in relation to the State acceding to the Contracting States which do not object to it within 12 months of receipt of the notification referred to in Article 37 (3). Such an objection may also be raised by a Member State when ratifying, adopting or approving the Convention after having access to it. Such objections will be notified to the Ministry of Foreign Affairs of the Netherlands.
Each State may, at the time of signature, ratification, acceptance or approval or at the time of accession, declare that the Convention applies to all territories for whose international contact it is responsible or to any of those territories. This Declaration shall take effect for that State at the time of the entry into force of the Convention.
Later, such enlargement will be notified to the Ministry of Foreign Affairs of the Netherlands.
Enlargement shall be effective in relations between the Contracting States which, within 12 months of receipt of the notification referred to in Article 37 (4), do not raise objections to enlargement and the territories or territories for which the State is responsible and in respect of which the notification has been made.
Such an objection may also be raised by a Member State when ratifying, accepting or approving the Convention after enlargement.
Such objections will be notified to the Ministry of Foreign Affairs of the Netherlands.
A Contracting State which has two or more territorial units in which different legal rules apply to the recognition and enforcement of maintenance decisions may declare, at the time of signature, ratification, acceptance, approval or accession, that this Convention applies to all or only some of its territorial units and may at any time amend that declaration by issuing a new declaration.
These declarations will be notified to the Ministry of Foreign Affairs of the Netherlands and will explicitly indicate the territorial unit to which the Convention will apply.
The other Contracting States will be able to refuse recognition of a maintenance decision if, at the time of application for recognition, the Convention does not apply to the territorial unit in which the decision was given.
Each State may make one or more reservations pursuant to Article 26 at the latest on ratification, acceptance, approval or accession. Any other reservation will not be admissible.
Each State may also make one or more reservations effective for the territory or one of the territories covered by the enlargement of the Convention pursuant to Article 32 when notified.
Any Contracting State may at any time withdraw the reservation it has made. This appeal will be notified to the Ministry of Foreign Affairs of the Netherlands.
The reservation shall cease to apply on the first day of the third calendar month following the notification referred to in the preceding paragraph.
This Convention shall enter into force on the first day of the third calendar month following the deposit of the third instrument of ratification, acceptance or approval referred to in Article 30.
The Convention shall then enter into force:
1. for each State which subsequently ratifies, accepts or approves it, on the first day of the third calendar month following the deposit of its instrument of ratification, acceptance or approval;
2. for each acceding State, on the first day of the third calendar month following the expiry of the period referred to in Article 31;
3. for the territory to which the Convention has been extended pursuant to Article 32, on the first day of the third calendar month following the expiry of the period referred to in that Article.
This Convention shall apply for five years from the date of its entry into force, in accordance with Article 35 (1), also to States which ratify, accept or approve it or accede to it at a later date.
If the Convention is not terminated, it shall be extended for another five years.
The denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands no later than six months before the expiry of the five-year period. The denunciation may be limited to certain territories to which the Convention applies.
The denunciation will only be effective for the State which notified it. The Convention shall remain in force for all other Contracting States.
The Ministry of Foreign Affairs of the Netherlands shall notify the Member States of the Conference and of the States which accede pursuant to Article 31:
1. the signatures, ratification, acceptance and approval referred to in Article 30;
2. the date on which this Convention enters into force pursuant to Article 35;
3. the approaches referred to in Article 31 and the dates by which they become effective;
4. the extension referred to in Article 32 and the date by which it takes effect;
5. objections raised against the approaches and extensions referred to in Articles 31 and 32;
6. the declaration referred to in Articles 25 and 32;
7. the statement referred to in Article 36;
8. Reservations pursuant to Articles 26 and 34 and the withdrawal of reservations pursuant to Article 34.
To prove the signature, duly empowered to do so, they signed this Convention.
In the Hague on 2 October 1972 in the English and French languages, both texts being equally authentic, in one copy, to be deposited in the archives of the Government of the Netherlands, the certified copy of which will be forwarded by diplomatic channels to each of the States which are members of the Hague Conference on Private International Law at the time of its 12th session.
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Regulation Information
| Citation | Decree of the Minister for Foreign Affairs No. 132 / 1976 Coll., on the Convention on Recognition and Enforcement of Maintenance Decisions |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.11.1976 |
|---|---|
| Effective from | 01.08.1976 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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