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Last update: 18-05-2005
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Maintenance claims - Luxembourg

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1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Luxembourg?

As an expression of family solidarity, the maintenance obligation is the obligation imposed by the legislator to provide material support for certain close relations. In particular, the parents are under an obligation to feed, maintain and educate their children. This concept also covers the maintenance to be paid by one spouse to the other in the event of a divorce and the maintenance obligations in the event of an adoption.

The rule which states that “maintenance is not designed to cover past claims” means that maintenance is intended to cover present and future needs, not to reimburse past expenses. This rule has the legal value of a simple presumption, that is, the rule can be quashed if the creditor furnishes proof either that he/she has had to incur debts to be able to support himself/herself or that he/she has not remained inactive or has been unable to act.

Maintenance is not offsettable unless the claim against which it is to be offset is also a maintenance claim.

Which persons are required to make “maintenance payments”:

  • parents in respect of their children?

The father and mother are under an obligation to feed and maintain their child. The child is entitled to claim all the maintenance at any time either from their father or mother.

  • children in respect of their parents

Children are under an obligation to provide maintenance for their father and mother if they are in need.

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The maintenance obligation between spouses prevails over that of other providers of maintenance. Therefore, the common child is not obliged to provide maintenance for their mother unless the father is unable to provide her with maintenance.

  • divorced spouses in respect of their former spouse

The court that grants the divorce can impose on either of the parties the obligation to make maintenance payments to the other party. The maintenance must meet the needs of the creditor and be proportionate to the abilities of the debtor.

No maintenance payments are to be paid to the party against whom a divorce on the grounds of fault is exclusively granted or who is cohabiting with a third party. Persons who live in the same household are considered as cohabiting.

The maintenance payment can be revised or revoked at any time. It is revoked when it ceases to be necessary. It automatically ceases to be payable if the creditor remarries (from the first month following the remarriage). It is no longer payable, upon request, if the creditor is cohabiting with a third party.

Furthermore, the maintenance credit can be the subject of a settlement or a waiver. Agreements between spouses are valid as long as the situation with regard to which the creditor or the debtor have agreed continues.

  • others

The following may also be involved:

  • spouses during the marriage, including during the divorce proceedings and in the event of a decision ordering a legal separation;
  • children with regard to their grandparents or other ascendants;
  • the succession of the deceased spouse, even legally separated, with regard to the surviving spouse;
  • sons-in-law and daughters-in-law with regard to their father-in-law and mother-in-law and vice-versa

Maintenance obligations are reciprocal. Nonetheless, if the creditor is in serious breach of their obligations towards the debtor, the judge can release the latter from all or some of the maintenance obligation

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In what cases?

Maintenance is subject to need. It is assumed that any person is able, at least by their work, to obtain resources, so that it is up to the debtor to establish either the reason why they cannot work, if they do not have a job, or the reason why, while engaging in a gainful activity, are unable to pay the maintenance requested by the creditor. The amount of the maintenance allowance is determined according to the needs of the creditor and the financial means of the debtor.

During the divorce proceedings, the maintenance allowance takes into account the lifestyle of the couple during the marriage, that is, the maintenance creditor is enabled to maintain a lifestyle that is comparable with the lifestyle they enjoyed during their cohabitation.

Once the divorce is granted, the situation changes radically. From this time on, the duty of assistance by which the spouses were obligated during the marriage ends and, to the extent possible, each spouse must provide for their own needs and take an active part in forging his/her own economic future. The maintenance allowance is for the purpose of maintenance and is not an indemnity. Its sole purpose is to provide the divorced spouse with means of subsistence.

Therefore, the divorced spouse must prove that they are unable to engage in gainful employment and that they do not have sufficient financial means in terms of assets and income to provide personally for their maintenance. The maintenance must be determined, subject to the limitation of the financial means of the debtor, according to one single criterion, that is, the inadequacy of the creditor’s personal means of subsistence.

2. Up to what age can a child benefit from a maintenance allowance?

While a minor, in any case the child must receive maintenance.

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After majority, the child continues to receive maintenance until they acquire financial autonomy, in particular through higher education or vocational training. The object is to allow the child to attain financial independence through the practice of a profession. As the pursuit of studies is not an absolute right, the continuation of the maintenance allowance may be subject not only to regular school attendance but also to success in examinations.

Following the cessation of the maintenance and education obligation the general arrangements for the maintenance obligation apply, on condition that the applicant furnishes proof of his/her state of need.

3. In which cases is the law of Luxembourg applicable?

The Hague Convention of 2 October 1973 on the law applicable to maintenance obligations is the ordinary law governing legal disputes in matters of maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child who is not legitimate
This Convention replaces the Hague Convention of 24 October 1956 on the law applicable to maintenance obligations in respect of children, which governs only maintenance in respect of minor children and is applicable in relations between the States Party which did not ratify the subsequent general convention.

The 1973 Hague Convention provides for a general rule, subsidiary rules and derogations
In principle, the applicable law is the law of the habitual residence of the maintenance creditor. If this law does not recognise the creditor’s entitlement to maintenance, the common national law of the creditor and the debtor is applicable. If this law also refuses to grant any rights to maintenance, the lex fori applies. Exception measures apply to collateral relatives and relatives through marriage in the event of dissolution of the marriage (divorce, legal separation or marriage annulment) , if all the parties are in Luxembourg and if a public institution is the creditor.

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Luxembourg law applies to the maintenance obligation especially in the following cases:

  • If the debtor and the creditor both have Luxembourg nationality and if the debtor has their habitual residence in Luxembourg;
  • If the creditor has their habitual residence in Luxembourg;
  • If a Luxembourg court is applied to and the law of the habitual residence of the creditor or the law of the common nationality does not allow the creditor to obtain maintenance;
  • If the creditor is a Luxembourg public institution, such as the Fonds national de solidarité (National Solidarity Fund).

As regards the maintenance obligation between spouses within the framework of proceedings for the dissolution of the marriage, the law applicable to the decision to dissolve the marriage is Luxembourg law.

4. If this law is not applicable, which law will the courts of Luxembourg apply?

If the creditor and the debtor both have their habitual residence on Luxembourg territory, Luxembourg law applies in principle, except if the creditor, pursuant to the 1973 Hague Convention, invokes the law of the common nationality if they are both of foreign nationality. It is this common foreign law that the Luxembourg courts would then apply.

The law applicable as stipulated by the aforementioned Convention essentially governs the following matters: the existence of a maintenance obligation, the deadline, the capacity to act and the method used to calculate the amount of the maintenance payment. Whatever the tenor of the applicable law, the amount of the maintenance payment must always be calculated according to the needs of the creditor and the financial means of the debtor.

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5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

The applicant must in principle submit a claim for maintenance to the Justice of the Peace. If the maintenance claim is connected with divorce or legal separation proceedings, the district court deciding on the application for divorce or legal separation also decides on the claim for maintenance.

6. Can a request be made on behalf of a relative, a close relation, or a child under age?

The parent who assumes parental responsibility for a minor child or the custody of a descendant who has reached the age of majority can claim through the courts a contribution towards the child’s maintenance and education. If the creditor is under guardianship, the guardian is solely authorised to act on behalf of the creditor.

7. If the applicant plans to bring the case to court, how does he/she know which court has jurisdiction?

For claims for payment or the revision of the maintenance allowance, the applicant can at their discretion apply to either the court of the place of their own domicile or of the place of domicile of the defendant.

8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) , etc.) ? If not, which procedures?

If the case does not involve proceedings for divorce or legal separation, the applicant can apply to the Justice of the Peace by means of a summons that must be served upon the opposing party by a bailiff. The parties to the dispute are exempted from the need to go through a lawyer.

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If the maintenance allowance is claimed in the course of proceedings for divorce or legal separation, the District Court is applied to by a summons that must be served on the opposing party by a bailiff. The parties to the dispute must go through a lawyer.

In any case, the applicant must submit to the judge all the documents that give evidence of their needs, such as salary statements, a non-taxability declaration, an unemployment certificate or a certificate attesting to a long illness, rent, dependent children, maintenance and education costs, loans, etc.

9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?

Among the costs to be taken into consideration in the event of legal proceedings, we should mention legal costs and the procedure costs which the party that loses the case can be ordered to pay (in whole or in part). Lawyers’ fees may also have to be paid.

Persons whose income is considered to be insufficient according to Luxembourg law can receive legal aid. To receive this aid, they must fill in a questionnaire that can be obtained from the central social work department and send it to the territorially competent president of the bar association, who will take the decision.

Legal aid covers all the costs relating to the court proceedings, procedures or actions for which it is granted. It covers, for example, stamp duties and registration costs, clerks’ fees, lawyers’ fees, bailiffs’ duties and fees, notaries’ expenses and fees, technicians’ expenses and fees, witness taxes, fees of translators and interpreters, fees for certificats de coutume, travelling expenses, duties and fees relating to formalities for registration, mortgage and encumbrance and where necessary costs for publication in newspapers.

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10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of the changes in the cost of living or family circumstances?

  • Type of maintenance

During the proceedings and following the granting of a divorce or legal separation, in most cases the maintenance allowance takes the form of a monthly payment. However, it can also take the form of a lump sum payment consisting either of a sum of money or the abandonment of goods in kind.

As regards contributions towards the child’s maintenance and education, maintenance can take the form of a monthly maintenance payment or, in whole or in part, the direct payment of costs incurred for the child. Finally, it can take the form of a right of use or habitation.

If the party required to provide maintenance proves that they cannot afford to pay the maintenance, the court can order this party to take the party to whom they is required to pay maintenance into their home, feed and maintain them.

  • Assessment of maintenance

There are no reference scales. The amount of the maintenance allowance is calculated according to the financial means of the debtor and the needs of the creditor.

  • Indexation

In order to adapt the maintenance allowance to changes in the cost of living, the judge can, even of his own motion, decide that the maintenance will be index-linked according to a legally stipulated variation clause.

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  • Revision of the amount

In the event of any change in circumstances, the maintenance allowance can be revised upwards or downwards and even revoked. If the parties fail to reach an agreement, the revocation or reduction is imposed by the court.

The principle of variability of the maintenance allowance according to the needs of the creditor and the financial means of the debtor is a principle of public interest. This principle implies that the judge has the power to change the amount of the maintenance allowance that has been set by agreement between the parties. This right applies not only in the event of a change in the respective situations of the creditor and of the debtor, but also in the absence of any change, if the judge deems that the amount is insufficient or excessive.

11. How and to whom will the maintenance be paid?

During the proceedings and after the granting of a divorce or legal separation, the maintenance allowance is paid to the beneficiary spouse.

The contribution towards the child’s maintenance and education is paid either by one of the parents to the other or to the person to whom the child has been entrusted. If the child has reached the age of majority, the judge can decide or the parents can agree that this contribution will be paid, in whole or in part, to the child.

12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him/her to pay?

The creditor has several means of forcing a recalcitrant debtor to pay the maintenance allowance.

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Civil law:

The creditor has several possibilities:

  • apply to the judge for authorisation to receive, to the exclusion of his/her former spouse and without prejudice to the rights of third parties, their earned income, including retirement pensions and annuities, and any and all other amounts that may be payable by a third party according to the proportions and conditions set by the judge. This decision is subject to revision in the event of a change in circumstances.
  • apply for the ordinary enforcement measures, i.e. attachment (for example from a bank account) , the attachment of movable goods (car, jewellery, etc.) and the attachment of real estate (house, land, etc.).

Criminal law:

The creditor can lodge a criminal action for the following offences:

  • Abandonment of family is punishable by a custodial sentence of between one month and one year and a fine of between €251 and 2,500 or only one of these penalties. It presupposes that the debtor refuses to meet all or some of the maintenance obligations in respect of the creditor imposed on him/her by law, either refusing to meet these obligations when able to do so or unable to meet this obligation through their fault.

    This is the case for the maintenance obligation of parents in respect of their children, between spouses and of adoptive parents in respect of adopted children. The offence also covers the order to pay damages for physical or emotional loss caused by the dissolution of the marriage.

  • Fraudulent insolvency is punishable by a custodial sentence of between six months and three years and a fine of between €500 and 12,500 or only one of these penalties. It presupposes that even before the court decision the debtor organised or aggravated their insolvency, either by increasing their liabilities or by reducing their assets or by concealing some of their goods in order to avoid the enforcement of an order issued by a civil court in matters of maintenance.

Court decisions and agreements approved by the court on the obligation to provide payments, subsidies or contributions towards the matrimonial costs and the setting of maintenance allowances contained in agreements prior to divorce by mutual consent are assimilated thereto.

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Prosecution of the offence is preceded by an officially recorded arraignment handed over to the debtor by a police officer of the Grand Duchy. If the debtor has no known residence, the arraignment is not required.

13. Is there an organisation or government department (central or local) which can help me to recover maintenance?

On the application of the creditor, the Fonds national de solidarité (National Solidarity Fund) can recover any maintenance that is payable to a spouse, an ascendant or a descendant. For the amounts that it must recover, the Fund is subrogated to the rights and guarantees of the creditor for the recovery of their maintenance. From the time of the notification to the debtor of the amounts to be recovered, the debtor must hand over these amounts to the President of the National Solidarity Fund.

14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place?

The National Solidarity Fund can, subject to certain conditions, pay the maintenance allowance in place of the debtor. The request for payment must be submitted by the creditor or by his/her legal representative to the President of the National Solidarity Fund.

This request is accepted by the President or his delegate if the creditor proves:

  1. they have their legal domicile in the country and that they or their legal representative have lived there for five years;
  2. their maintenance allowance has been set by a court decision which is enforceable in the Grand Duchy of Luxembourg;
  3. the total or partial recovery of the maintenance could not be obtained by an enforcement measure under private law that was effectively exercised.
  4. they are in a difficult economic situation.

If condition c) is not met, the request is admitted if the recourse to enforcement measures appears to have been unsuccessful or if the debtor resides abroad. Any disputes are under the jurisdiction of the Justice of the Peace of the creditor’s domicile, to whom application can be made within forty days from the notification of the President’s decision.

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Creditors can ipso jure receive legal aid. From the time of admission of the request until the cessation of payments by the Fund, the creditor cannot take any action against the debtor to recover his/her maintenance.

If the applicant is in Luxembourg and the maintenance debtor resides in another country:

15. Can the petitioner obtain the assistance of an organisation or government department in Luxembourg?

Pursuant to the New York Convention of 20 June 1956 on the recovery abroad of maintenance, an applicant residing in Luxembourg can, if the debtor resides abroad, apply to the Chief Public Prosecutor to obtain maintenance.

16. If so, what is the name and address of that organisation or government department and how can it be contacted?

The maintenance creditor submits the request to the transmitting authorities, i.e. the Chief Public Prosecutor. The request must be accompanied by all relevant information, such as an affidavit giving authorisation to act on behalf of the creditor, a photograph of the creditor and, if possible, a photograph of the debtor.

Procureur Général d’Etat

Parquet Général

12, Côte d’Eich

L-1450 Luxembourg

17. What kind of assistance can the petitioner receive from this organisation or government department?

The Chief Public Prosecutor transmits the file to the foreign authority, unless he deems the request not to be in good faith
He can express to the foreign authority his opinion on the merits of the request. In addition, he can recommend to the foreign authority that the creditor should receive legal aid and be granted exemption from the payment of costs.

If the applicant is in another country and the maintenance creditor resides abroad:

18. Can the petitioner address directly a request to an organisation or government department in Luxembourg?

An applicant who resides in a country other than Luxembourg must apply to the competent authority of the country in which he/she resides. He/she cannot directly apply to a Luxembourg organisation or government department.

19. If so, what is the name and address of that organisation or government department and how can it be contacted?

Not applicable.

20. What kind of assistance can the petitioner receive from this organisation or government department?

Not applicable.

Further information

« Maintenance claims - General information | Luxembourg - General information »

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Last update: 18-05-2005

 

TABLE OF CONTENTS

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Luxembourg? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of Luxembourg applicable? 3.
4. If this law is not applicable, which law will the courts of Luxembourg apply? 4.
5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance? 5.
6. Can a request be made on behalf of a relative, a close relation, or a child under age? 6.
7. If the applicant plans to bring the case to court, how does he/she know which court has jurisdiction? 7.
8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) , etc.) ? If not, which procedures? 8.
9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure? 9.
10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of the changes in the cost of living or family circumstances? 10.
11. How and to whom will the maintenance be paid? 11.
12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him/her to pay? 12.
13. Is there an organisation or government department (central or local) which can help me to recover maintenance? 13.
14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? 14.
If the applicant is in Luxembourg and the maintenance debtor resides in another country: If the applicant is in Luxembourg and the maintenance debtor resides in another country:
15. Can the petitioner obtain the assistance of an organisation or government department in Luxembourg? 15.
16. If so, what is the name and address of that organisation or government department and how can it be contacted? 16.
17. What kind of assistance can the petitioner receive from this organisation or government department? 17.
If the applicant is in another country and the maintenance creditor resides abroad: If the applicant is in another country and the maintenance creditor resides abroad:
18. Can the petitioner address directly a request to an organisation or government department in Luxembourg? 18.
19. If so, what is the name and address of that organisation or government department and how can it be contacted? 19.
20. What kind of assistance can the petitioner receive from this organisation or government department? 20.
 
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