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Canada, South Africa

Cross-border Recovery of Maintenance in cases of Formal Reciprocity

In cases where there are no international conventions or agreements in place, but formal reciprocity has been guaranteed by the state in question, maintenance claims may be asserted in accordance with the German Foreign Maintenance Act. The Foreign Maintenance Act provides for the establishment of a Central Authority in order to achieve this aim. This is the Federal Office of Justice. Mutual legal assistance is currently ongoing with 11 Canadian provinces and the Republic of South Africa. As regards the relationship to the United States of America, the 2007 Hague Maintenance Convention became the new legal basis for cooperation in the field of the international assertion of maintenance claims since 1 January 2017.

2007 Hague Maintenance Convention

The Foreign Maintenance Act (AUG) 2011 - Extract

The following extract of the Foreign Maintenance Act (AUG) 2011 is an unofficial translation of the Federal Ministry of Justice.

The Foreign Maintenance Act (AUG) 2011 - Extract (PDF, 59KB, File meets accessibility standards)

The Federal Office of Justice as Central Authority is mandated to undertake correspondence directly with the competent agencies abroad. It is only in relations with the Republic of South Africa that diplomatic channels still have to be used. The Foreign Maintenace Act provides, in principle, for the possibility of asserting and enforcing maintenance claims arising both from kinship – in particular child maintenance – and from marriage. In practice, in relations with most states the declaration of formal reciprocity is limited to the assertion of child maintenance.

In terms of the steps involved in the procedure, a distinction is made between incoming and outgoing requests. Incoming requests are those which involve an applicant who has his/her habitual residence outside Germany and therefore the request is received from abroad, while in the case of outgoing requests the applicant has his/her habitual residence in the Federal Republic of Germany and his/her application is sent abroad. No fees are charged for any procedures or for the activities undertaken by the Central Authority.

Outgoing requests

Persons entitled to maintenance whose habitual residence is in the Federal Republic of Germany can assert their maintenance claims for which there is a legal basis (in particular child and spousal maintenance) by submitting a request to the Local Court which has jurisdiction. This is the Local Court with jurisdiction over the seat of the Higher Regional Court in whose district the applicant has his/her habitual residence (Section 7 of the Foreign Maintenance Act). While the request does not have to be made in any specific format, in practice, bilingual forms are used which contain all the necessary information. It is recommended that these forms be used when making an application.

Once the court has examined the chances the request has of being successful, it sends it to the Federal Office of Justice along with the necessary translations and a confirmation of its chances of success. If the request is complete, the Federal Office of Justice forwards it to the competent authority abroad.

Bilingual forms (German website)

Incoming requests

Individuals entitled to maintenance whose habitual residence is in a state with which formal reciprocity is guaranteed may submit a maintenance request to the Federal Office of Justice via the Central Authority that is responsible for them in their state of residence. If the request is complete, the Federal Office of Justice takes all appropriate steps to assert or enforce the maintenance claim. Before court proceedings are initiated, the Federal Office of Justice attempts to bring about maintenance payments on a voluntary basis. In accordance with Section 5 Subsection 4 of the Foreign Maintenance Act, the Federal Office of Justice as Central Authority is deemed to be authorised to act on behalf of the person entitled to maintenance.

If court proceedings become necessary, and if it is thought the case offers sufficient prospect of success, the person entitled to maintenance is guaranteed legal aid in accordance with Section 24 of the Foreign Maintenance Act even in the absence of proof of financial need.

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