CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF
DECISIONS RELATING TO MAINTENANCE OBLIGATIONS
(Concluded 2 October 1973)
The States
signatory to this Convention,
Desiring to
establish common provisions to govern the reciprocal recognition and
enforcement of decisions relating to maintenance obligations in respect of
adults,
Desiring to
coordinate these provisions and those of the Convention of the 15th of April
1958 on the Recognition and Enforcement of Decisions Relating to Maintenance
Obligations in Respect of Children,
Have resolved to
conclude a Convention for this purpose and have agreed upon the following
provisions -
chapter i -
scope of the convention
Article 1
This Convention
shall apply to a decision rendered by a judicial or administrative authority in
a Contracting State in respect of a maintenance obligation arising from a
family relationship, parentage, marriage or affinity, including a maintenance
obligation towards an infant who is not legitimate, between -
(1) a
maintenance creditor and a maintenance debtor; or
(2) a maintenance debtor and a public body which claims reimbursement of
benefits given to a maintenance creditor.
It shall also
apply to a settlement made by or before such an authority
("transaction") in respect of the said obligations and between the
same parties (hereafter referred to as a "settlement").
Article 2
This Convention
shall apply to a decision or settlement however described.
It shall also
apply to a decision or settlement modifying a previous decision or settlement,
even in the case where this originates from a non-Contracting State.
It shall apply
irrespective of the international or internal character of the maintenance
claim and whatever may be the nationality or habitual residence of the parties.
Article 3
If a decision or
settlement does not relate solely to a maintenance obligation, the effect of
the Convention is limited to the parts of the decision or settlement which
concern maintenance obligations.
chapter ii -
conditions for recognition and enforcement of decisions
Article 4
A decision
rendered in a Contracting State shall be recognised or enforced in another
Contracting State -
(1) if it
was rendered by an authority considered to have jurisdiction under Article 7 or
8; and
(2) if it is no longer subject to ordinary forms of review in the State
of origin.
Provisionally
enforceable decisions and provisional measures shall, although subject to
ordinary forms of review, be recognised or enforced in the State addressed if
similar decisions may be rendered and enforced in that State.
Article 5
Recognition or
enforcement of a decision may, however, be refused -
(1) if
recognition or enforcement of the decision is manifestly incompatible with the
public policy ("ordre public")
of the State addressed; or
(2) if the decision was obtained by fraud in connection with a matter of
procedure; or
(3) if proceedings between the same parties and having the same purpose
are pending before an authority of the State addressed and those proceedings
were the first to be instituted; or
(4) if the decision is incompatible with a decision rendered between the
same parties and having the same purpose, either in the State addressed or in
another State, provided that this latter decision fulfils the conditions
necessary for its recognition and enforcement in the State addressed.
Article 6
Without
prejudice to the provisions of Article 5, a decision rendered by default shall
be recognised or enforced only if notice of the institution of the proceedings,
including notice of the substance of the claim, has been served on the
defaulting party in accordance with the law of the State of origin and if,
having regard to the circumstances, that party has had sufficient time to
enable him to defend the proceedings.
Article 7
An authority in
the State of origin shall be considered to have jurisdiction for the purposes
of this Convention -
(1) if
either the maintenance debtor or the maintenance creditor had his habitual
residence in the State of origin at the time when the proceedings were
instituted; or
(2) if the maintenance debtor and the maintenance creditor were nationals
of the State of origin at the time when the proceedings were instituted; or
(3) if the defendant had submitted to the jurisdiction of the authority,
either expressly or by defending on the merits of the case without objecting to
the jurisdiction.
Article 8
Without
prejudice to the provisions of Article 7, the authority of a Contracting State
which has given judgment on a maintenance claim shall be considered to have
jurisdiction for the purposes of this Convention if the maintenance is due by
reason of a divorce or a legal separation, or a declaration that a marriage is
void or annulled, obtained from an authority of that State recognised as having
jurisdiction in that matter, according to the law of the State addressed.
Article 9
The authority of
the State addressed shall be bound by the findings of fact on which the
authority of the State of origin based its jurisdiction.
Article 10
If a decision
deals with several issues in an application for maintenance and if recognition
or enforcement cannot be granted for the whole of the decision, the authority
of the State addressed shall apply this Convention to that part of the decision
which can be recognised or enforced.
Article 11
If a decision
provided for the periodical payment of maintenance, enforcement shall be
granted in respect of payments already due and in respect of future payments.
Article 12
There shall be
no review by the authority of the State addressed of the merits of a decision,
unless this Convention otherwise provides.
chapter iii -
procedure for recognition and enforcement of decisions
Article 13
The procedure
for the recognition or enforcement of a decision shall be governed by the law
of the State addressed, unless this Convention otherwise provides.
Article 14
Partial
recognition or enforcement of a decision can always be applied for.
Article 15
A maintenance
creditor, who, in the State of origin, has benefited from complete or partial
legal aid or exemption from costs or expenses, shall be entitled, in any
proceedings for recognition or enforcement, to benefit from the most favourable
legal aid or the most extensive exemption from costs or expenses provided for
by the law of the State addressed.
Article 16
No security,
bond or deposit, however described, shall be required to guarantee the payment
of costs and expenses in the proceedings to which the Convention refers.
Article 17
The party
seeking recognition or applying for enforcement of a decision shall furnish -
(1) a
complete and true copy of the decision;
(2) any document necessary to prove that the decision is no longer
subject to the ordinary forms of review in the State of origin and, where
necessary, that it is enforceable;
(3) if the decision was rendered by default, the original or a certified
true copy of any document required to prove that the notice of the institution
of proceedings, including notice of the substance of claim, has been properly
served on the defaulting party according to the law of the State of origin;
(4) where appropriate, any document necessary to prove that he obtained
legal aid or exemption from costs or expenses in the State of origin;
(5) a translation, certified as true, of the above-mentioned documents
unless the authority of the State addressed dispenses with such translation.
If there is a
failure to produce the documents mentioned above or if the contents of the
decision do not permit the authority of the State addressed to verify whether
the conditions of this Convention have been fulfilled, the authority shall
allow a specified period of time for the production of the necessary documents.
No legalisation
or other like formality may be required.
chapter iv -
additional provisions relating to public bodies
Article 18
A decision
rendered against a maintenance debtor on the application of a public body which
claims reimbursement of benefits provided for a maintenance creditor shall be
recognised and enforced in accordance with this Convention -
(1) if
reimbursement can be obtained by the public body under the law to which it is
subject; and
(2) if the existence of a maintenance obligation between the creditor and
the debtor is provided for by the internal law applicable under the rules of
private international law of the State addressed.
Article 19
A public body
may seek recognition or claim enforcement of a decision rendered between a
maintenance creditor and maintenance debtor to the extent of the benefits
provided for the creditor if it is entitled ipso
jure, under the law to which it is subject, to seek recognition or claim
enforcement of the decision in place of the creditor.
Article 20
Without
prejudice to the provisions of Article 17, the public body seeking recognition
or claiming enforcement of a decision shall furnish any document necessary to
prove that it fulfils the conditions of sub-paragraph 1, of Article 18 or
Article 19, and that benefits have been provided for the maintenance creditor.
chapter v -
settlements
Article 21
A settlement
which is enforceable in the State of origin shall be recognised and enforced
subject to the same conditions as a decision so far as such conditions are
applicable to it.
chapter vi -
miscellaneous provisions
Article 22
A Contracting
State, under whose law the transfer of funds is restricted, shall accord the
highest priority to the transfer of funds payable as maintenance or to cover
costs and expenses in respect of any claim under this Convention.
Article 23
This Convention
shall not restrict the application of an international instrument in force
between the State of origin and the State addressed or other law of the State
addressed for the purposes of obtaining recognition or enforcement of a
decision or settlement.
Article 24
This Convention
shall apply irrespective of the date on which a decision was rendered.
Where a decision
has been rendered prior to the entry into force of the Convention between the
State of origin and the State addressed, it shall be enforced in the latter
State only for payments falling due after such entry into force.
Article 25
Any Contracting
State may, at any time, declare that the provisions of this Convention will be
extended, in relation to other States making a declaration under this Article,
to an official deed ("acte authentique")
drawn up by or before an authority or public official and directly enforceable
in the State of origin insofar as these provisions can be applied to such
deeds.
Article 26
Any Contracting
State may, in accordance with Article 34, reserve the right not to recognise or
enforce -
(1) a
decision or settlement insofar as it relates to a period of time after a
maintenance creditor attains the age of twenty-one years or marries, except
when the creditor is or was the spouse of the maintenance debtor;
(2) a decision or settlement in respect of maintenance obligations
a) between persons related
collaterally;
b) between persons related by
affinity;
(3) a
decision or settlement unless it provides for the periodical payment of
maintenance.
A Contracting
State which has made a reservation shall not be entitled to claim the
application of this Convention to such decisions or settlements as are excluded
by its reservation.
Article 27
If a Contracting
State has, in matters of maintenance obligations, two or more legal systems
applicable to different categories of persons, any reference to the law of that
State shall be construed as referring to the legal system which its law
designates as applicable to a particular category of persons.
Article 28
If a Contracting
State has two or more territorial units in which different systems of law apply
in relation to the recognition and enforcement of maintenance decisions -
(1) any
reference to the law or procedure or authority of the State of origin shall be
construed as referring to the law or procedure or authority of the territorial
unit in which the decision was rendered;
(2) any reference to the law or procedure or authority of the State
addressed shall be construed as referring to the law or procedure or authority
of the territorial unit in which recognition or enforcement is sought;
(3) any reference made in the application of sub-paragraph 1 or 2 to the
law or procedure of the State of origin or to the law or procedure of the State
addressed shall be construed as including any relevant legal rules and
principles of the Contracting State which apply to the territorial units
comprising it;
(4) any reference to the habitual residence of the maintenance creditor
or the maintenance debtor in the State of origin shall be construed as
referring to his habitual residence in the territorial unit in which the
decision was rendered.
Any Contracting
State may, at any time, declare that it will not apply any one or more of the
foregoing rules to one or more of the provisions of this Convention.
Article 29
This Convention
shall replace, as regards the States who are Parties to it, the Convention on
the Recognition and Enforcement of Decisions Relating to Maintenance
Obligations in Respect of Children, concluded at The Hague on the 15th of April
1958.
chapter vii -
final clauses
Article 30
This Convention
shall be open for signature by the States which were Members of the Hague
Conference on Private International Law at the time of its Twelfth Session.
It shall be
ratified, accepted or approved and the instruments of ratification, acceptance
or approval shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 31
Any State which
has become a Member of the Hague Conference on Private International Law after
the date of its Twelfth Session, or which is a Member of the United Nations or
of a specialised agency of that Organisation, or a Party to the Statute of the
International Court of Justice may accede to this Convention after it has
entered into force in accordance with the first paragraph of Article 35.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Such accession
shall have effect only as regards the relations between the acceding State and
those Contracting States which have not raised an objection to its accession in
the twelve months after the receipt of the notification referred to in
sub-paragraph 3 of Article 37. Such an objection may also be raised by Member
States at the time when they ratify, accept or approve the Convention after an
accession. Any such objection shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
Article 32
Any State may,
at the time of signature, ratification, acceptance, approval or accession,
declare that this Convention shall extend to all the territories for the
international relations of which it is responsible, or to one or more of them.
Such a declaration shall take effect on the date of entry into force of the
Convention for the State concerned.
At any time
thereafter, such extensions shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
The extension
shall have effect as regards the relations between the Contracting States which
have not raised an objection to the extension in the twelve months after the
receipt of the notification referred to in sub-paragraph 4 of Article 37 and
the territory or territories for the international relations of which the State
in question is responsible and in respect of which the notification was made.
Such an
objection may also be raised by Member States when they ratify, accept or
approve the Convention after an extension.
Any such
objection shall be notified to the Ministry of Foreign Affairs of the
Netherlands.
Article 33
If a Contracting
State has two or more territorial units in which different systems of law apply
in relation to the recognition and enforcement of maintenance decisions, it
may, at the time of signature, ratification, acceptance, approval or accession,
declare that this Convention shall extend to all its territorial units or only
to one or more of them, and may modify its declaration by submitting another
declaration at any time thereafter.
These
declarations shall be notified to the Ministry of Foreign Affairs of the
Netherlands, and shall state expressly the territorial unit to which the
Convention applies.
Other
Contracting States may decline to recognise a maintenance decision if, at the
date on which recognition is sought, the Convention is not applicable to the
territorial unit in which the decision was rendered.
Article 34
Any State may,
not later than the moment of its ratification, acceptance, approval or
accession, make one or more of the reservations referred to in Article 26. No
other reservation shall be permitted.
Any State may
also, when notifying an extension of the Convention in accordance with Article
32, make one or more of the said reservations applicable to all or some of the
territories mentioned in the extension.
Any Contracting
State may at any time withdraw a reservation it has made. Such a withdrawal
shall be notified to the Ministry of Foreign Affairs of the Netherlands.
Such a
reservation shall cease to have effect on the first day of the third calendar
month after the notification referred to in the preceding paragraph.
Article 35
This Convention
shall enter into force on the first day of the third calendar month after the
deposit of the third instrument of ratification, acceptance or approval
referred to in Article 30.
Thereafter the
Convention shall enter into force
- for each State
ratifying, accepting or approving it subsequently, on the first day of the
third calendar month after the deposit of its instrument of ratification,
acceptance or approval;
- for each acceding State, on the first day of the third calendar month after
the expiry of the period referred to in Article 31;
- for a territory to which the Convention has been extended in conformity with
Article 32, on the first day of the third calendar month after the expiry of
the period referred to in that Article.
Article 36
This Convention
shall remain in force for five years from the date of its entry into force in
accordance with the first paragraph of Article 35, even for States which have
ratified, accepted, approved or acceded to it subsequently.
If there has
been no denunciation, it shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Netherlands, at
least six months before the expiry of the five year period. It may be limited
to certain of the territories to which the Convention applies.
The denunciation
shall have effect only as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 37
The Ministry of
Foreign Affairs of the Netherlands shall notify the States Members of the
Conference, and the States which have acceded in accordance with Article 31, of
the following -
(1) the
signatures and ratifications, acceptances and approvals referred to in Article
30;
(2) the date on which this Convention enters into force in accordance
with Article 35;
(3) the accessions referred to in Article 31 and the dates on which they
take effect;
(4) the extensions referred to in Article 32 and the dates on which they
take effect;
(5) the objections raised to accessions and extensions referred to in
Articles 31 and 32;
(6) the declarations referred to in Articles 25 and 32;
(7) the denunciations referred to in Article 36;
(8) the reservations referred to in Articles 26 and 34 and the
withdrawals referred to in Article 34.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 2nd day of October, 1973, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Netherlands, and of which a certified
copy shall be sent, through the diplomatic channel, to each of the States
Members of the Hague Conference on Private International Law at the date of its
Twelfth Session.
Không có nhận xét nào:
Đăng nhận xét