Foreign maintenance in case of formal reciprocity
If there are no international agreements or international conventions but reciprocity has been ensured with the country in question, the assertion of maintenance claims can be enforced in accordance with the Foreign Maintenance Act. In order to achieve this goal, the Foreign Maintenance Act provides for the establishment of a Central Authority. In accordance with section 4 subs. 1 of the Foreign Maintenance Act, the tasks of the Central Authority have been assigned to the Federal Office of Justice. Legal relations are currently established with 48 US states, 11 provinces of Canada and the Republic of South Africa. If the person entitled to maintenance lives in other states, there may be a possibility of asserting the claim under the UN Convention on the Recovery Abroad of Maintenance or the EC Maintenance Regulation.
As the Central Authority in accordance with the Foreign Maintenance Act, the Federal Office of Justice has the job of supporting persons entitled to maintenance in enforcing their claims. In doing so, it assumes the function of the Receiving and Transmitting Authority. In accordance with section 4 subs. 1 of the Foreign Maintenance Act, the power is granted to the Central Authority to correspond directly with the competent authorities abroad. It is only in relations with the Republic of South Africa that inconvenient, time-consuming diplomatic channels still have to be used. As a matter of principle, there is a possibility in accordance with the Foreign Maintenance Act to assert and execute both statutory maintenance claims from relatives – especially child maintenance – and maintenance obligations arising from marriage. In relations with most states the declaration of formal reciprocity is restricted in practice to the assertion of child maintenance, which also has the best prospects for success in other respects.
It is necessary to distinguish for the course of the proceedings between incoming and outgoing requests. Incoming requests are those where the person entitled to maintenance has his/her habitual place of residence abroad and therefore an application is received from abroad, whilst in the case of outgoing requests the person entitled has his/her habitual place of residence in the Federal Republic of Germany and his/her application is sent abroad. It is possible in both cases to apply for both the maintenance claim abroad to be made legally enforceable for the first time, which can then be enforced, and to have a ruling which has already been handed down recognised and then enforced. In other respects, the Central Authority also supports amicable agreements. Moreover, when child maintenance is claimed, judicial determination of paternity can take place as preliminary proceedings. No fees are charged for the extrajudicial proceedings or for the activity of the Central Authority.
Persons entitled to maintenance who have their customary place of residence in the Federal Republic of Germany can assert their maintenance claims which are based on a statutory foundation (in particular child and spousal maintenance) by submitting a request to the Local Court (Amtsgericht) with jurisdiction. This is the Local Court which has jurisdiction for the seat of the Higher Regional Court in whose district the applicant has his/her habitual residence (section 7 of the Foreign Maintenance Act). The request is not subject to any particular formal requirement, but in practice bilingual forms are used containing all the necessary information. It is recommended to use these forms when applying.
After the court has examined the request’s prospects for success, it transmits it to the Central Authority along with the necessary translations and a certificate regarding the prospects for success. If the request is complete, the latter forwards it to the agency with jurisdiction abroad. The further correspondence necessary to pursue the request is also carried out via the Local Court. The Central Authority itself is restricted to enquiring as to the status of the case and passing on the communication between the applicant and the foreign agencies (central authorities, perhaps counsel, courts or maintenance authorities).
Persons entitled to maintenance whose habitual place of residence is in a state with which reciprocity is ensured can send a maintenance request to the Federal Office of Justice via the Central Authority in their state of residence which has jurisdiction for it. If the request is complete, the latter takes all suitable steps to enforce the maintenance claim. Before however court proceedings are pursued, the Central Authority attempts to bring about a voluntary maintenance payment. In accordance with section 5 subs. 4 of the Foreign Maintenance Act, the Central Authority is deemed to be empowered to act in the name of the person entitled to maintenance.
Should judicial proceedings be necessary, legal aid is granted to the person entitled to maintenance in accordance with section 24 of the Foreign Maintenance Act if there are prospects for success without there being a need for the person to demonstrate any lack of means.