From Max-EuP 2012

by Dieter Martiny

1. Notion and kinds of maintenance

Maintenance is generally understood as the provision of benefits, in the framework of a family relationship, to meet the everyday needs of another; it depends on the needs of the maintenance creditor and the ability to pay of the debtor. This kind of transfer exists in all European legal systems. There is, however, in respect of the extent and intensity of the obligation, a considerable range of variation between the legal systems. Furthermore, maintenance itself—provided in quite a range of contexts—is only to a certain degree a uniform concept.

In respect of jurisdiction and recognition, maintenance has until now followed the rules for civil and commercial matters in European international family law (European family law (PIL)). There exists a special jurisdiction in favour of the maintenance creditor (Art 5 no 2 Brussels I Regulation (Reg 44/2001)). The need for a European notion of maintenance has so far arisen mainly in the context of delimiting the scope of application and the special jurisdiction relating to maintenance matters in the framework of the Brussels Convention. The European Court of Justice (ECJ) has classified the compensatory payment (prestation compensatoire) due after divorce according to Art 270 French Code civil as maintenance. The decisive argument for this result was that it concerns financial obligations between the former spouses which are determined according to the means and needs of both parties (ECJ Case 120/79 – de Cavel II [1980] ECR 731).

The European Maintenance Regulation replaces the provisions concerning maintenance obligations in the Brussels I Regulation (Reg 44/2001). To regulate international maintenance law, a delimitation of the term ‘maintenance’ is necessary. The Regulation applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity (Art 1(1) (Reg 4/2009)). The European Parliament has suggested in a legislative resolution of December 2007 that such obligations should be construed in the widest possible sense as covering, in particular, all orders, decisions or judgments of a competent court relating to periodic payments, payments of lump sums, transfers of ownership in property and property adjustments which are fixed on the basis of the parties’ respective needs and resources and are in the nature of maintenance.

There is no uniform substantive law (uniform law) of maintenance. Maintenance law is a part of family law, which is generally regulated in national civil codes (eg in Austria, France and Germany); in a Family Code (eg in the Czech Republic and Poland) or in special statutes (eg in England).

Statutory regulations distinguish between different kinds of maintenance. A uniform trend of the national statutes are regulations which better take into account the economic independence of the spouses, particularly after divorce. At the same time, national legislatures are making efforts to strengthen child maintenance. The Commission on European Family Law (CEFL) has developed the Principles of European Family Law Regarding Divorce and Maintenance between Former Spouses (2004, Principles of European Family Law).

2. Kinds of maintenance

Family law generally draws a distinction according to the source of the obligation to provide maintenance, ie maintenance among relatives, spousal support and maintenance between former spouses. A general concept of ‘maintenance law’ encompassing all these kinds of obligations is developed differently in the national legal systems.

The encompassing concept of the continental common law, based on the 6th-century codification of Roman law (gemeines Recht; ius commune), regarding maintenance among relatives with reciprocal maintenance claims between ascendants and descendents is still to be found in the Roman law-influenced European legal systems (eg in France (obligation alimentaire), Germany (Verwandtenunterhalt), Italy (alimenti) and Poland). Child maintenance is the most important and intensive kind of maintenance and a generally recognized obligation. Towards one’s own children there is an intensified maintenance obligation (in France obligation d’entretien, in Italy mantenimento). Legitimate and illegitimate children are today treated equally. An obligation generally falls only upon the natural parents; a maintenance obligation of step-parents (eg the Netherlands) or an obligation towards a ‘child of the family’ (England) exists only in a minority of legal systems.

Maintenance obligations in respect of adults do not exist everywhere. In many legal systems there is generally no age limit (eg France, Germany and Poland), whereas in common law countries and in the Nordic legal systems, maintenance claims of adult persons are unknown. In cases of need in these jurisdictions such persons depend solely on their own efforts or—as far as accessible—on social security benefits. Maintenance claims by parents are, on the other hand, in line with the Roman common law obligation of children to support their parents and, where necessary, more remote ascendants. This obligation is imposed primarily on closer descendents before the more remote. Today, compared to the different forms of social security, it only has a gap-filling function and the policy behind it is often questioned.

Maintenance claims may also be based on affinity. However, an obligation of parents-in-law towards children-in-law (and vice versa) exists only in a minority of legal systems (eg France, Italy and the Netherlands). A reciprocal maintenance obligation between siblings, ie collateral relatives, which existed for example in Prussian law, is provided for today in only a few legal systems (see Art 433 no 6 Italian Codice civile).

3. Maintenance claims between spouses

Spousal support is provided during an existing marriage. In Germany the concept of ‘family maintenance’ covers the duration of living together (Familienunterhalt, § 1360 Bürgerliches Gesetzbuch (BGB)). In France, spousal support is a part of the general obligation to contribute to the ‘marriage expenses’ (Art 214 Code civil). An individual claim for spousal support comes into existence only during a separation of the spouses.

Although European legal systems also differ starkly in respect of post-divorce maintenance, the CEFL Principles nevertheless aim to be in line with recent tendencies. They follow the dominant approach of the civil law countries by embracing independent maintenance claims. In English law, on the other hand, comprehensive financial relief is at the centre of interest (ss 21 ff Matrimonial Causes Act 1973). Under English law, property may be transferred to a spouse; maintenance is only awarded where no lump sum payment is possible. Maintenance and the consequences for the property of the spouses after divorce are not treated separately.

According to the CEFL Principles, granting maintenance after divorce does not depend on the type of divorce (Principle 2:1). The starting point is self-sufficiency; each spouse should provide for themselves after divorce (Principle 2:2). Strengthening self-sufficiency, particularly of women and mothers, was a main goal of the 2007 German reform of maintenance law (see §§ 1569 ff BGB) and is also a concern of other legal systems. However, a precondition for the success of such an approach is an appropriate social security and labour market policy.

In the granting of maintenance the CEFL Principles follow generally recognized requirements. Post divorce maintenance is dependent upon the creditor spouse having insufficient resources to meet his or her needs and the debtor spouse’s ability to satisfy those needs (Principle 2:3).

To assess maintenance claims according to the CEFL Principles, account should be taken, in particular, of factors such as the spouses’ employment abilities, age and health, the care of children, the division of duties during the marriage, the duration of the marriage, the standard of living during the marriage and any new marriage or long-term relationship (Principle 2:4).

According to the CEFL Principles, maintenance should be provided at regular intervals and in advance (Principle 2:5(1)). Thus the Principles do not adopt the clean break principle, ie a regulation with a single and definite performance, as a starting point. However, the competent authority may order a lump sum payment upon request of either or both spouses, taking into account the circumstances of the case (Principle 2:5(2)). Some legal systems go further in this respect. For example, the French Code civil provides primarily for a single prestation compensatoire which is to compensate any economic detriment. However, in practice, often only periodic maintenance is granted.

The CEFL Principles contain a general hardship clause, which is generally found in present national statutory regulations in Europe. In cases of exceptional hardship to the debtor spouse, the competent authority may deny, limit or terminate maintenance because of the creditor spouse’s conduct (Principle 2:6).

The CEFL Principles also address the problem of multiple maintenance claims. When assessing the obliged spouse’s ability to satisfy the needs of the entitled spouse, the maintenance claims of minors must be given precedence (Principle 2:7(a)). The priority of minors was another aim of the German reform of maintenance law in 2007. The CEFL Principles are mostly in line with the majority of European legal systems, which provide an equal rank between the maintenance obligation towards the divorced ex-spouse and the second spouse (§§ 1582, 1609 BGB). The CEFL Principles, however, only state that any obligation of the debtor spouse to maintain a new spouse has to be taken into account (Principle 2:7(b)).

The CEFL Principles limit the period of time in which the maintenance obligation exists. Maintenance is generally only granted for a limited period. However, in exceptional cases a maintenance obligation may exist without a time limit (Principle 2:8). This is in line with a tendency which recently found expression in German law. In the Netherlands, for example, the court may limit the duration of maintenance for a period ranging from the duration of a short marriage up to a maximum period of 12 years (Art 157(3)–(6) Burgerlijk Wetboek (BW)).

The maintenance obligation ceases if the creditor spouse remarries or establishes a long-term relationship (Principle 2:9(1)). The cessation of maintenance after divorce when a long-term relationship has been established has been laid down by the German Maintenance Law Reform Act of 2008 in § 1579 no 2 BGB. The CEFL Principles do not allow a terminated maintenance claim to be revived if, after its cessation, the new marriage or long-term relationship ends (Principle 2:9(2)). Otherwise, maintenance claims cease upon the death of either the creditor or the debtor spouse (Principle 2:9(3)).

A particularly difficult issue is maintenance agreements. On the one hand there is a need for the exercise of party autonomy and flexibility; on the other hand the law must ensure the weaker party is protected. The CEFL Principles permit the spouses to enter into an agreement about maintenance after divorce. The agreement may concern the extent, performance, duration and termination of the maintenance obligation as well as the possibility of renouncing a claim for maintenance (Principle 2:10(1)). A certain degree of control is achieved by the requirement that such an agreement must be in writing (Principle 2:10(2)). The substantive fairness of the agreement is also required. According to the CEFL Principles the competent authority should, at a minimum, scrutinize the validity of the maintenance agreement (Principle 2:10(3)).

4. Maintenance claims of children

In children’s maintenance claims, the maintenance debtor’s ability to pay is a condition for a claim; the debtor must be in a position to meet his or her responsibility. The debtor is expected to make reasonable efforts to perform his or her obligations. The debtor has, however, a right to sufficient means for his or her own support (in Germany a self-support reserve, Selbstbehalt). Often there is a minimum level of support fixed by statute which has to be paid (see § 1612a BGB). Another basic requirement of maintenance claims is the need of the maintenance creditor; in the case of children, however, such need exists as a general rule.

Different forms of maintenance are distinguishable according to the method of performance. Maintenance may be provided in kind or as monetary child support. In German law there exists a separate category of maintenance in kind, ‘child support by care’ (Betreuungsunterhalt), for the underage child. The care and upbringing of a child is generally viewed as equal to the provision of monetary support by the other parent.

The methods of assessing maintenance differ considerably. While sometimes an individual calculation approach is of primary importance (eg in France and Poland), it is more common to use a certain standardization. Court-developed formulas based on percentages of income or fractional contributions (Austria) are frequently used, but support tables (Germany) find application as well. In England an administrative determination of child maintenance by the Child Support Agency takes place according to a statutory formula (see Child Support Act 1995). Agreements waiving child support for the future are generally not possible.

A maintenance claim is in general enforced in civil proceedings. The United Kingdom, however, has created a separate authority, the Child Support Agency, for the enforcement of child maintenance.

If the maintenance debtor is not able to pay or does not pay, advance maintenance payments can often be claimed out of public funds. In this respect the Council of Europe (Council of Europe (harmonization of private law) and Council of Europe (institutional aspects)) has issued a recommendation for the introduction of such advance payments. Accordingly, there is a close connection with social security benefits and the public safety net generally protecting against life’s mishaps and risks. Some social security benefits are always available. Others are of a subsidiary nature and can only be claimed in the event of a default of private support. Here—as in the case of the German advance payments of maintenance—a right of recourse against the maintenance debtor is generally possible.


Alexander Bergmann, Murad Ferid and Dieter Henrich (eds), Internationales Ehe- und Kindschaftsrecht mit Staatsangehörigkeitsrecht, 20 vols (looseleaf); Dieter Henrich and Dieter Schwab (eds) Familiäre Solidarität—Die Begründung und die Grenzen der Unterhaltspflicht unter Verwandten im europäischen Vergleich (1997); Dieter Martiny, Unterhaltsrang und -rückgriff, 2 vols (2000); Sibylle Hofer, Dieter Schwab and Dieter Henrich (eds), Scheidung und nachehelicher Unterhalt im europäischen Vergleich (2003); Katharina Boele-Woelki and others, Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses (2004); Katharina Boele-Woelki and Dieter Martiny, ‘Prinzipien zum Europäischen Familienrecht betreffend Ehescheidung und nachehelicher Unterhalt’ (2006) 14 ZEuP 6; Andreas Mom and Katharina Boele-Woelki, ‘Europäisierung des Unterhaltsrechts: Vereinheitlichung des Kollisionsrechts und Angleichung des materiellen Rechts’ [2006] Familie, Partnerschaft, Recht 232; Andrea Bonomi, ‘The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations’ (2008) 10 Yearbook of Private International Law 333; Paul R Beaumont, ‘International Family Law in Europe—The Maintenance Project, the Hague Conference and the EC’ (2009) 73 RabelsZ 509; Philip Bremner, ‘International child maintenance in Europe’ in Katharina Boele-Woelki, Jo Miles and Jens M Scherpe (eds), The Future of Family Property in Europe (2011) 407.

Retrieved from Maintenance – Max-EuP 2012 on 18 May 2024.

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