Special rule favouring certain creditors
Article 4 provides for a modification of the general rule favouring creditors in the case of the maintenance obligations of:
- parents towards their children
- persons, other than parents, towards persons who have not attained the age of 21 years, except for obligations arising out of the relationships referred to in Article 5
- children towards their parents
For this group of creditors, Article 4 establishes two different “cascades” for the determination of the applicable law to maintenance obligations with the aim to favour the application of a law according to which the creditor is able to obtain maintenance.
First “cascade”
If in accordance with general rule set forth in
Article 3, i.e. when applying the law of the State of habitual residence of the creditor, no maintenance can be obtained for the creditor, Article 4(2) provides a subsidiary connection to the law of the forum (lex fori). If also according to law of the forum the creditor is unable to obtain maintenance, “the law of the State of [the parties’] common nationality, if there is one” is applied (Article 4(4)).
Second “cascade”
The second “cascade” applies only for cases in which the competent authority seised by the creditor is in the State of the habitual residence of the debtor. Here, priority is given to the application of the lex fori, i.e. in that case the law of the State of the habitual residence of the debtor (Article 4(3)). If in accordance with the lex fori the creditor is unable to obtain maintenance, the law of the State of the habitual residence of the creditor (i.e. the law applicable in accordance with the general rule) applies (Article 4(3)). And if under that law the creditor is unable to obtain maintenance, it is (as in the first “cascade”) the law of the State of the parties’ common nationality that is applicable (Article 4(4)).
It should be noted that States which have “the concept of
‘domicile’ as a connecting factor in family matters may inform
the Permanent Bureau of the Hague Conference on Private
International Law that, for the purpose of cases which come
before its authorities, the word ‘nationality’ in
Articles 4 and
6 is replaced by ‘domicile’ as defined in that State”,
Article
9. Ireland, is so far the only State which notified the
Permanent Bureau of such a replacement, see
Ireland’s
notification under Article 9 on the Hague Conference website.
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See below an illustration as to the determination of the law applicable if a creditor privileged under Article 4 of the 2007 Hague Protocol was to bring maintenance proceedings either in the State of his or her habitual residence (cascade 1) or in the State of the debtor’s habitual residence (cascade 2). Jurisdiction of European Union Member State courts could in both cases derive from Article 3 of the Maintenance Regulation.
It should be noted that in case the creditor brings maintenance proceedings in the State of his or her habitual residence, the law determined as applicable in accordance with the first two levels of cascade 1 is same, since the law of the State of habitual residence of the creditor is the lex fori. Of course, also the third level of the cascade, referring to the law of the parties’ common nationality (or domicile), could lead to the application of the same law.
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