1956 UN Convention on the Recovery Abroad of Maintenance
As the Central Authority, the Federal Office of Justice takes on the tasks of the German "Receiving and Transmitting Authority" in accordance with the 1956 UN Convention on the Recovery Abroad of Maintenance of 20 June 1956 (UN Maintenance Convention) This applies to 65 States signatory. Since the Maintenance Regulation came into effect, only those cases are now dealt with under the UN Maintenance Convention in which the applicant or opponent does not have his/her habitual place of residence in one of the 27 EU Member States.
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.
The UN Maintenance Convention applies to maintenance obligations that are based on a legal foundation. It is not possible to assert an advance maintenance payment claim in accordance with the Advance Maintenance Act (Unterhaltsvorschussgesetz) or other social benefits paid by a state agency under the UN Maintenance Convention.
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 furthermore, 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.
The costs of the translations of the request and of the supporting documents are to be met by the applicant as a matter of principle. The Local Court which has jurisdiction in accordance with section 7 subs. 1 of the Foreign Maintenance Act exempts the applicant on request from the obligation to refund costs incurred for a translation which the Central Authority has arranged if the applicant meets the personal and economic preconditions for instalment-free legal aid in accordance with section 113 of the Act on the Procedure in Family Matters and in Matters concerned with Non-contentious Litigation (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) in conjunction with section 115 of the Code of Civil Procedure (ZPO) (section 10 subs. 3 of the Foreign Maintenance Act).
Transmitting Authority – Outgoing requests
Persons entitled to maintenance who have their habitual 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.
The court examines the request and sends it to the Federal Office of Justice along with the necessary translations. If the request is complete, the latter forwards it to the agency with jurisdiction abroad. 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)
Receiving Authority – Incoming requests
Persons entitled to maintenance whose habitual place of residence is in one of the 65 States signatory can send a maintenance request to the Federal Office of Justice via the Transmitting 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.
If legal aid is necessary for the acknowledgment, declaration of enforceability and enforcement of maintenance orders, a person entitled to maintenance who has received legal aid in full or in part in the state of origin for the contentious proceedings is also granted such aid in Germany (section 23 of the Foreign Maintenance Act).