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The Federal Republic of Germany ratified the Hague Convention on the Law Applicable to Maintenance Obligations (hereinafter: the Convention) on 2 October 1973. The Convention came into force in respect of the Federal Republic on 1 April 1987. For the sake of clarity, the provisions of the convention relating to the conflict of laws have been incorporated in Section 18 of the German Introductory Act relating to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch - EGBGB).
According to this provision, the law of the normal place of residence of the party entitled to maintenance is decisive for the purposes of determining any maintenance obligation. This means that German law is applicable if the party entitled to maintenance is resident in Germany. If the law of the usual place of residence of the party entitled to maintenance does not provide any maintenance claim, the second sentence of Section 18(1) EGBGB subsequently provides that the applicable law is the law of the country to which both the party entitled to maintenance and the party liable to pay maintenance belong. In cases in which neither the law of the usual place of residence nor the law of the shared home country provide a maintenance claim, German law is applicable pursuant to Section 18(2) EGBGB.
There are two exceptions to the link in principle between Section 18(1) and Section 18(2) EGBGB:
Pursuant to Section 18(5) EGBGB, German law is applicable if both the entitled party and also the liable party are German and the liable party is normally resident in Germany. Additionally, Section 18(4) EGBGB contains a special provision in respect of maintenance following divorce. According to that provision, maintenance claims between divorced spouses are decided in accordance with the law under which the spouses have been divorced, if the divorce has been pronounced or recognised in Germany.
If both the party liable to pay maintenance and also the party entitled to maintenance are resident in Germany, German law applies, as the fact that the party entitled to maintenance is usually resident in Germany is the decisive criterion for the purpose of the application of German law. If the residence here in Germany by the party entitled to maintenance cannot be equated with usual residence, the applicable law is the law of the country in which the party entitled to maintenance is usually resident. In the alternative, the applicable law is the law of the common home country of the party entitled to maintenance and the party liable to pay maintenance. As a final alternative, German law applies, namely if the party entitled to maintenance receives no maintenance either under the law of the country of usual residence or under the law of the common home country.
In order for a maintenance obligation to be recognised, the entitled party must normally apply to a court, the Young Persons Department or a notary in order to obtain an enforceable title on the basis of which a sum of money can be compulsorily collected.
Contested proceedings only take place in court. However, the obligation to satisfy claims is acknowledged before a notary or the Young Persons Department. The scope of the jurisdiction of the Young Persons Department is restricted compared to that of the notary, i.e. the Young Persons Department establishes the obligation in the case of child maintenance up to the age of 21 or claims by a mother or a father arising from the birth of a child.
All statutory maintenance claims must be asserted as a family case by suit or under the simplified procedure in the Family Court. The proceedings are governed by the provisions of the Rules of Civil Procedure.
Every claimant must in principle assert his claim himself. It is not possible to make a claim in the name of an acquaintance. There is an exception in the case of a claimant who is a minor. In this case, one parent may assert the minor child's maintenance claim against the other parent in his own name.
The general jurisdiction of the defendant's place of residence applies in principle also in maintenance proceedings. In the case of proceedings relating to the statutory maintenance obligation of one or both parents towards a minor child, exclusive jurisdiction is with the court where the child or the parent representing the child for legal purposes has his general jurisdiction. This does not however apply if the child or a parent has his general jurisdiction abroad.
The child may also bring proceedings claiming that both parents perform their maintenance obligation in the court where the father or the mother has a jurisdiction.
It is not normally necessary to be legally represented when pursuing maintenance claims in court. The contrary applies only where maintenance claims relating to a statutory maintenance obligation on the basis of the marriage and claims in respect of a joint child are made as an ancillary matter in divorce proceedings. In this case, the spouses must be represented by an attorney at law who is admitted at a district court or a regional court.
Costs (fees and disbursements) are charged in respect of legal proceedings relating to the statutory maintenance obligation based on a family relationship or marriage. The court fee, payable in three instalments, is due when the claim is filed at court. The amount of the fee is determined by the value of the disputed subject‑matter. All additional court costs (payments to witnesses and experts, for example) are determined by the value of the disputed subject matter. The relevant amount is the sum requested as maintenance for the first twelve months after the filing of the claim, but in any event no more than the total amount of the requested payment. Sums already payable as maintenance when the claim is filed are added thereto.
If the lawful representative of a 10-year‑old child makes a claim for normal maintenance (currently €241 per month), the contested value of the proceedings comes to €2,892. In this case, the court fee is generally €267 (€89 x 3). If the wife of an architect asks for separation and health care maintenance of €1,900 per month, the contested value comes to €22,800. The court fee is €933 (€311 x 3). Statements about the level of costs are thus not generally encountered. If applicable, the fee of an attorney in law instructed to protect the right are payable in addition to the court costs.
The amount of the fees can be seen from the fee table for contested values up to €500,000:
Contested value up to € ...
Fee € ...
Contested value up to € ...
Fee € ...
The costs are payable primarily by the party ordered to pay them by the court in the judgement. In principle, the unsuccessful party must pay the costs.
Applicants with insufficient financial means can apply for legal aid.
Maintenance is normally payable as a financial payment. The level of the maintenance is determined by the requirements and needs of the party entitled to maintenance and the ability to pay of the party liable for maintenance. The higher regional courts have drawn up tables and guidelines in this respect which assist in determining the flat rate for the relevant maintenance amounts. The best known is the Düsseldorf table, which is widely used for calculating the level of child maintenance.
If the maintenance is specified as a particular financial sum, it can be adjusted in the event of a significant change in circumstances. An amendment claim must be made in this instance.
If an under-age child of a parent, with whom he/she does not live in one household, has had the maintenance determined as a percentage of the respective normal amount, the maintenance is automatically adjusted every two years in accordance with changes in the normal amount. No amendment claim is therefore necessary in this case.
The maintenance is in principle payable monthly in advance by means of a financial payment, which must be paid to the party entitled to maintenance or, in the case of under-age children, to the parent looking after them or to the party otherwise entitled to receive payment.
One possibility consists in the compulsory enforcement of the established maintenance claim. Compulsory enforcement is achieved in accordance with the general rules.
The obligation imposed on the party liable for maintenance is however given additional weight by the fact that a breach of this obligation can be penalised under criminal law.
Anyone who is in breach of a maintenance obligation is liable to a term of imprisonment of up to three years or a fine. If a term of imprisonment is imperative but the sentence is suspended, the court can instruct the convicted party to comply with his maintenance obligations. The court revokes the suspension of the sentence if the convicted party grossly or persistently contravenes such an order and thereby gives reason to fear that he will commit further criminal offences, in particular a breach of the maintenance obligation.
In the case of first offenders, however, the public prosecutors office can provisionally refrain from bringing a charge and the court can provisionally halt the criminal proceedings if the guilty party is at the same time instructed to comply with maintenance obligations in a particular sum.
A maintenance order is a normal enforcement order in respect of a financial claim, and so the party entitled to maintenance must in principle comply with the normal enforcement rules and must enforce his claim himself.
However, the Young Persons Department assists with collection in the event of support for a child (Sections 1712 et seq. of the German Civil Code (Bürgerliches Gesetzbuch - BGB). A support arrangement is established under Section 1713 of the civil code if the parent making the application has sole care of the child or if both parents have joint care but the parent making the application has the child in his/her custody.
It is necessary to distinguish this from cases in which particular social security payments (covering a need which would actually be covered by the maintenance payment) are paid to a party entitled to maintenance. If the recipient of these social security payments has a maintenance claim against a liable party which has not yet been fulfilled, this maintenance claim is in principle passed on to the competent public authority, which can then assert the maintenance claim in its own name:
The payments under the Maintenance Advance Payment Act and the payments of social security and basic protection for job seekers, referred to in Question 13, are independent social security payments that are limited in their extent, and they are not maintenance payments in the original meaning of the word. They are paid directly by the competent public authorities to the claimant. Nor do they ultimately depend on whether the maintenance claim can be collected (in Germany or abroad). The public authorities to which the maintenance claim has passed can also assert this claim abroad in their own names.
Unlike payments under the Maintenance Advance Payment Act and payments of social security and basic protection for job seekers, the establishment of a support arrangement under Section 1712 BGB does not create a separate claim for payment against the responsible public authority. The activity of the public authority in this case is restricted to supporting the entitled party in asserting and enforcing the maintenance claim.
A maintenance order is a normal enforcement order in respect of a monetary claim, so that the party entitled to maintenance must in principle comply with the normal enforcement rules.
Support is provided in the manner set out in the answer to Question 13 when a support arrangement has been established.
The Young Persons Departments are normally located at the administrative departments of the town councils or regional authorities with geographical responsibility for the place of residence of the child or parent entitled to maintenance.
The same applies in the case of social security offices and maintenance advance payment offices.
See under Question 13.
See under Question 16.
Last update: 27-07-2006