Now the Convention is being applied between Ukraine and Albania, Norway, Bosnia and Herzegovina. Since August 1, 2014 the Convention has come into force in the countries of European Union.

In comparison with New York Convention on the Recovery Abroad of Maintenance of 20 June 1956, the Convention provides greater opportunities for the recovery of maintenance abroad. The innovations that can be mentioned are: availability to receive preliminary information about the place of residence and financial situation of the defendant, possibility to recognize parentage for the recovery of maintenance, possibility of recognition and enforcement of the maintenance agreements.

Upon ratification of the Convention, Ukraine made a reservation and asserted its right not to recognize and not to enforce the maintenance agreements. In connection with this reservation, recognition and enforcement of the maintenance agreements, concluded in another country could be impeded in Ukraine. Nevertheless, the Convention provides the basis in order to recognize and enforce the maintenance agreements signed in Ukraine in another country.

At its core, the Convention could be applied not only to the citizens of foreign states, that are participants to the Convention but also to foreign citizens, whom  are long-time residents or habitually reside on the territory of participant state. For example, these are persons, who are temporarily and legally working on the territory of foreign country.

Scope of the Convention

Each State, by ratifying the Convention, has right to set specific types of maintenance, covered by the Convention. Ukraine, in turn, upon ratification of the Convention, has set up that the Convention is being applied to obligation of maintenance of a child under the age of 18 years. In addition, Articles 5, 8 of the Convention provide opportunity to apply for the recognition and enforcement of decisions regarding maintenance recovery:

-from parents to adult incapable children;

-from parents to adult children continuing their education until the age of 23;

-from adult children to incapable parents;

-from grandmother or grandfather in favour of grandchildren, who have not reached the age of majority;

-from adult grandchildren, great- grandchildren to incapable grandmother, grandfather, great-grandmother, great- grandfather;

-from adult brothers, sisters to brothers, sisters, who have not reached the age of majority and adult incapable brothers and sisters;

-from stepmother, stepfather to stepdaughter, stepson who has not reached the age of majority;

-from adult stepdaughter, stepson to incapable stepmother, stepfather.

We are focusing more in detail on the analysis of mechanisms of maintenance recovery for the child up to 18 years.

Preliminary Measures

The applicant has right to submit application to the central authority of another country with a request to take specific preliminary measures to establish place of location of the debtor, to receive information about his income and financial situation, to receive the documents, that could be used as evidences, to establish paternity with the view of further recovery of maintenance and apply for interim measures. Thus, the Convention gives opportunity to preliminary find out perspectives of submitting of the application to the requested state and assists the applicant in preparation of the documents for application. Application of the preliminary request is not mandatory and can be exercised at discretion of the applicant.

Available Applications

If the applicant decides to submit the application, he can request for:

-recognition or recognition and enforcement of a decision, regarding recovery of maintenance, made in the requesting state;

-enforcement of a decision, made or recognized in the requested State;

-establishment of a decision in the requested State, in case if a decision on recovery of maintenance has not been made yet, or if necessary, establishment of parentage;

-establishment of a decision in the requested state, where recognition and enforcement of a decision is not possible;

-modification of a decision made in the requested state;

-modification of a decision made in a state other than the requesting state.

One of the most interesting mechanisms is opportunity to receive a decision on the recovery of maintenance in the debtor’s country of residence and subsequently enforce it, that provides facilities to apply the legislation of another country for determination of amount of the child support and impose provisional measures, that as a result secure more effective and fast enforcement of a decision.

Some practical tips for the application of this mechanism may be found in the guidelines of the application of the Convention in the Northern Ireland of Great Britain.

While making a decision on determination of amount of the child support, the Court will apply only the material and procedural law of England. Under the English law, child support may include: periodic payments for maintenance, payments in fixed amount, child care costs, expenditures for additional training, health -care expenses etc. Child support payments in each case are established individually, taking into account the peculiarities of development of the child, health condition and creative skills and may include other fees, which the party incur in the up-bringing of the child.

The specific feature of the English jurisdiction is possibility to establish the child support for the past time. Child support may be established from the date of the child’s birth or the date of the filling of a claim for support.

Child support payments are usually established until the child reaches 17 years. In case of continuation of studying, probation training, incapacity of a child or in other cases, the alimony may be established up to 18 years or even more.

Responsibility for Evasion

In case of evasion of the debtor from child support payments, the debtor may be prosecuted or deprived of licensed documents, such as driver’s license. To use coercive measures against the debtor, the applicant should prove intentional evasion of the debtor to pay alimony and to exhaust all the available mechanisms for the enforcement of the decision or prove that all the available methods of enforcement are ineffective.

Such coercive measures may include: wage withholding; seizure of bank accounts and other financial resources; seizure or confiscation of property or assets; tax refund withholding; withholding or attachment of pension benefits; withholding or seizure of lump-sum payments; denial, suspension or revocation of various licenses; imprisonment.

The central authority in Northern Ireland organizes all the available procedures regarding recovery of maintenance in accordance with the provisions of the Convention. In case of necessity, the central authority also provides free legal assistance.

The Convention recently has come into force in Ukraine. At present, the Ministry of Justice of Ukraine that acts as the Central Authority has not yet adopted the instruction that details order of implementation of the Convention in Ukraine. The judicial practice of its application has not been developed yet. Despite this, today one of the parents has the ability to run in action new mechanisms of recovery of maintenance between state parties of the Convention.

However, in each case, practitioners must carefully analyse available mechanisms taking into account the peculiarities of legal system of involved foreign State, determine and subsequently apply the most effective methods, that help to achieve the final goal and obtain child support payments promptly.

Irina Moroz

Partner AGA Partners Law Firm

YP № 30-31 of August 12, 2014.