Choice of applicable law
One of the main novelties of the 2007 Hague Protocol in comparison with the two former Hague instruments on applicable law in the field of maintenance is the admission of party autonomy (see further Bonomi, Explanatory Report on the 2007 Hague Protocol, paras 109 et seq).
The Protocol distinguishes between the designation of the applicable law for the purpose of a particular proceeding (Article 7) and the designation of the applicable law generally (Article 8).
Article 7 allows the maintenance creditor and debtor for the purpose of a particular proceeding in a given State to expressly designate the law of that State, i.e. the lex fori, as applicable to a maintenance obligation, Article 7(1). Article 7(2) sets forth the conditions and formal requirements of such a designation: “A designation made before the institution of such proceedings shall be in an agreement, signed by both parties, in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference.”
According to Article 8, the ”maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation :
- the law of any State of which either party is a national at the time of the designation
- the law of the State of the habitual residence of either party at the time of designation
- the law designated by the parties as applicable, or the law in fact applied, to their property regime
- the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation.”
The choice of law has to be made “in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference, and shall be signed by both parties”, Article 8(2). Such a choice is not possible regarding maintenance obligations towards a person under the age of 18 or towards a “vulnerable adult” not in a position to protect his/her interests (see Article 8(3)). Article 8(4) and (5) contains certain restrictions with regard to the effects of the choice of law. See for the background further Bonomi, Explanatory Report on the 2007 Hague Protocol, paras 146 et seq.