Bojana Arsenijević,1 LL.M.

Ph.D. candidate at Faculty of Law2

University of Niš, Serbia

MAINTENANCE BETWEEN FORMER SPOUSES AND REGISTERED PARTNERS

IN LAWS OF PARTICULAR EUROPEAN UNION’S MEMBER STATES AND SERBIA

ABSTRACT

The right to maintenance between former spouses and registered partners depends upon
the legal recognition of heterosexual and homosexual marriage and registered partnership in
particular European legal systems. Given the mobility of people within Europe, cross-border
maintenance claims call for more attention. The analysis’ scope is the legal provisions on right to
maintenance between former spouses and registered partners in Austria, France, Italy, Germany
and Serbia. This comparative analysis aims to show to what extent the matter of maintenance is
harmonized within legal systems of particular European Union’s Member States and Serbia,
accordingly to the Principles of the Commission on European Family Law Regarding the Divorce
and Maintenance between Former Spouses.

Key words: European Union, former spouses, former registered partners,

harmonization, maintenance.

1
Correspondence address: Svetog Save 38, 18430 Kursumlija, Serbia. Mail address: bojana.arsa@yahoo.com.
Telephone: +381 64 375 85 74.
2
Author is currently enrolled in her Ph.D. studies at the Faculty of Law, University of Nis, Serbia. Publications:
Arsenijević, Forms of Wills in Contemporary Russian Law, with Particulsr Reference to Serbian Law, Collection of
Papers, Faculty of Law, Novi Sad, 2019 (accepted for publishing);Arsenijević, Forms of Wills in Laws of Former
SFRY Republics, Collection of Judicial Practices, Higher Court of Niš, No. 35, 2019, pp. 104–117; Mojašević,
Arsenijević, Analyses of the Result of the Implementation of the Act on Preventing the Family Violence before the
Municipal Court of Niš, Collection of Papers, Faculty of Law, Niš, No. 80, 2018, pp. 445–462; Arsenijević, Secret
Will in Particular Contemporary European Legal Systems, Collection of Papers, Faculty of Law, Niš, No. 78, 2018,
pp. 405–422.

1
 INTRODUCTION

The right to social security of former spouses and registered partners raises the issue of
right to maintenance. Maintenance is the right for one former spouse to gain monetary assistance
from the other, and the obligation for the other former spouse to give monetary assistance.
The legal provisions on the right of maintenance may quite differ in particular European
legal systems, not only in terms of whether the right of maintenance is regulated by law or not,
but also in terms of specific requirements for receiving maintenance. Differences between legal
systems are caused, among other factors, by the differences of legal status of same-sex marriages
and registered partnerships, both heterosexual and homosexual. For example, right on
maintenance of a migrant worker who got married under the law of the country that accepts same
sex marriage can become disputable if the maintenance claim is raised in a country whose laws
recognize only heterosexual marriages and civil partnerships.
Maintenance claims are complex legal actions, which are even more complicated in
cross-border disputes. From the EU integrations’ viewpoint, cross-border maintenance claims can
involve parties from different EU countries or parties form EU and non-EU countries. Given the
mobility of people in the last decade, cross-border maintenance claims call for better coordination
and communication between the authorities of different legal systems.
After examining the issues of court jurisdiction and applicable law, 3 delivering the
decision on the maintenance claim depends on the understanding of the legal provisions on
maintenance obligations of applicable law.4

3
Recognizing the impact of cross-border maintenance disputes, the Council of European Union has delivered the
Council Regulation (EC) from 18 December 2008 No 4/2009 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance obligations (hereinafter referred to as
the Council Regulation No 4/2009). Under the Article 3 of Council Regulation No 4/2009, in matters relating to
maintenance obligations in Member States, jurisdiction shall lie with: (a) the court for the place where the defendant
is habitually resident, or (b) the court for the place where the creditor is habitually resident, or (c) the court which,
according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter
relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of
one of the parties, or (d) the court which, according to its own law, has jurisdiction to entertain proceedings
concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that
jurisdiction is based solely on the nationality of one of the parties. Under the Article 15 of Council Regulation No
4/2009, the law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of
23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to as the 2007 Hague
Protocol) in the Member States bound by that instrument. Under the Article 3 of 2007 Hague Protocol, maintenance
obligations shall be governed by the law of the State of the habitual residence of the creditor, save where this
Protocol provides otherwise.

2
 The aim of this paper is to present legal provision on maintenance obligations between
former spouses and registered partners in laws of Austria, Germany, France, Italy and Serbia. The
choice of mentioned laws is made with intention to examine if and to what extent have the laws
of Austria, Germany and France influenced the creation of contemporary Serbian family law,
having in mind their origin influence on the construction of Serbian legal system in other private
law areas. Also, the intention is to examine if similar or the same influence is evident regarding
Italian family law, having in mind that French Civil Code was paragon for the Italian Civil Code.
Nevertheless, the choice of mentioned laws agrees with the migration attractiveness of named
European counties.
Although all these counties, except for Serbia, are member states of the European Union,
there are considerable differences in the legal provision on maintenance obligations. Until
recently, family law has remained outside the scope of EU private law harmonization activities,
which was justified by the traditional cultural constrains.5 A step towards harmonization in this
area of law has been taken by the Commission on European Family Law (CEFL),6 specifically
delivering a set of non-binding common Principles of European Family Law. The first and
second of them were the Principles of European Family Law Regarding the Divorce and
Maintenance between Former Spouses, published in 2004.7 The research results will show
whether and to what extent the proclaimed principles are met in the laws of these particular
European countries.

RIGHT TO MAINTENANCE

The right to maintenance between former spouses and registered partners is directly
connected with the legal recognition of heterosexual and homosexual unions.

4
By motion of Iura novit curia, the judge ex-officio introduces him or herself to the legal provisions of applicable
law.
5
Boele-Woelki et al., Principles of European Family Law Regarding Divorce and Maintenance Between Former
Spouses, European Family Law Series, 2004, p. 1 et seqq.
6
The Commission on European Family Law, CEFL, was established on 01 September 2001. The CEFL consists of
approximately 30 distinguished experts in the field of family and comparative law from European Union Member
States and other European countries. The main objective of the CEFL is to research on the possibilities and
directions for achieving the harmonization of family law in Europe. So far, research on the matter has resulted with
creation of a set of Principles of European Family Law, which are expected to lead towards the harmonization of
particular aspects of family law within Europe, by means of their implementation in the legal systems of particular
European countries. More on the history of the CEFL, its members and work on www.cefonline.net.
7
All Principles of European Family Law delivered by the CEFL may be found on ceflonline.net/principles.

3
 In laws of Italy and Serbia, marriage is regulated exclusively as a union of two people of
different gender. In laws of Austria, Germany and France marriage is regulated as a union of two
people, either of different gender or of the same.8
Concerning the registered partnerships,9 in Germany and Italy they are regulated
exclusively as same-sex unions,10 while in France and Italy they are regulated with the gender
neutral provisions, as odd-sex and same-sex unions. In Serbia only two people of different gender
can enter in the extramarital union.11
These differences between legal systems on terms of recognition of heterosexual and
homosexual unions affect the existence of right to maintenance between former spouses and
registered partners in these legal systems. For example, in Italy homosexual marriage is not
regulated and thus, the homosexual couple married under the law of Austria, but with habitual
residency in Italy, cannot claim for maintenance by rules of Italian law. Upon the dissolution of
homosexual registered partnership, concluded under the law of France, the former partners with
habitual residency in Germany cannot claim for maintenance by rules of Germany law. Former
registered partners, who concluded registered partnership in Austria, but have habitual residency
in Serbia, cannot claim for maintenance by rules of Serbian law. But, former extramarital partners
who can obtain maintenance under the law of Serbia are not eligible for maintenance by the rules
of Germany, Austria, France and Italy.
The solution for these situations may be found in the functional interpretation of the legal
institutes of marriage, registered partnership and extramarital union. Nevertheless, such
interpretation may be restricted by notice of public policy, according to the rules of international
private law of each European country.
The Court of Justice of European Union already ruled that a third-country national of the
same sex as a Union citizen, who got married in a Member State in accordance with the law of

8
Homosexual marriage is legalized in France since 2013, in Germany since 2017 and in Austria since 2019.
9
In particular legal systems the distinguish is made between registered partnership and cohabitation (for example, in
France). Registered partners have legal status similar to the married couple, regarding the rights and obligations
under the law, while that is not the case with cohabitants. In this paper attention is given to the legal status of
registered partners regarding the right to maintenance upon the dissolution of partnership.
10
Heterosexual registered partnership is legalized in France since 1999, in Serbia since 2005 and in Austria since
2019. Homosexual registered partnership is legalized in France since 1999, in Germany since 2001, in Austria since
2010 and in Italy since 2016.
11
The extramarital union in Serbian law differs from the registered partnership in all other mentioned legal systems
to the same extend as it differs from marriage, because of its lack of formalization of acts of constitution and
dissolution of union. Under provisions of Serbian law, the marriage and the extramarital union are legal facts of
equal legal consequences in the terms of existence of right to maintenance.

4
that state, has the right to reside in the territory of the Member State of which the Union citizen is
a national, nevertheless the particular Member State does not recognize same-sex couples as
family.12 This ruling may be taken as good example for the court interpretation of living unions
of citizens of European Union.

PRINCIPLES OF EUROPEAN FAMILY LAW

Given that the right to maintenance is one of economic consequences of divorce, in legal
systems that regulate different grounds for divorce the right to maintenance and conditions for
obtaining this right may differ with respect to the ground for divorce. Nevertheless, according to
the Principles of European Family Law Regarding the Divorce and Maintenance between Former
Spouses (hereinafter reffered to as The Principles), maintenance between former spouses should
be subject to the same rules regardless of the type of divorce.13
Regarding to the conditions for deciding upon the maintenance claim, the Principle is that
maintenance after divorce should be dependent upon the creditor spouse having insufficient
resources to meet his or her needs and the debtor spouse’s ability to satisfy those needs.14
Furthermore, in determining a claim for maintenance, account should be taken in particular of
factors such as the spouses’ employment ability, 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.15
According to the Principles, maintenance should be provided at regular intervals, and as a
lump sum payment only upon request of either or both spouses, with taking into account the
circumstances of the case.16 Also, maintenance should be granted only for a limited period, and
just exceptionally without time limit.17

12
CJEU, case C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul
Afacerilor Interne, ECLI:EU:C:2018:385.
13
The Principle 2:1.
14
The Principle 2:3.
15
The Principle 2:4.
16
The Principle 2:5.
17
The Principle 2:8.

5
 Maintenance between Former Spouses in Austria

The right to maintenance between former spouses is regulated by the Austrian Marriage
Act.18 Depending to the grounds for divorce, the distinguish is made between three legal
situations for obtaining maintenance.
When the marriage is divorced on the ground of fault, former spouse who is found to be
solely or predominantly at fault must pay maintenance to other spouse, to the extent that the
latter’s income from property and from such gainful employment as he or she may reasonably be
expected to accept is insufficient.19 The amount of the maintenance will depend on the creditor
spouses’ financial circumstances and it must be sufficient for the creditor spouse to maintain the
living standard he or she had before the divorce.20 In the case that both spouses are equally at
fault, neither is entitled to maintenance. Nevertheless, if one spouse in such case is unable to
support himself or herself, then the other former spouse may be obliged to pay maintenance, but
only if this is held to be equitable under the circumstances of particular case.21 Furthermore, it is
possible even for a spouse who is guilty for divorce to obtain maintenance, if it would be
unreasonable to expect the guilty spouse to support himself or herself (1) because of the present
care of common children or (2) because he or she had to care for common children or relatives
during the marriage and now is confronting with inability to support himself or herself.22 The
amount of maintenance payable in last mentioned case depends primary on the financial
circumstances of the creditor spouse, but may be reduced (or even denied) if it would be
inequitable under the circumstances of the case, with consideration given to the behavior of the
creditor spouse and the duration of the marriage.
If the marriage is divorced on the ground of irretrievable breakdown of marriage, the
right to maintenance depends on whether the court finds that one of the spouses is at fault. Under
the paragraph 69 of the Austrian Marriage Act, if the court finds one of the spouses to be guilty
for the breakdown of marriage, in cases provisioned by the paragraphs 50 and 52 of the Austrian
Marriage Act, then the aforementioned rules on maintenance in the case of divorce on the ground

18
Ehegesetz, DRGBl I Nr. 807/1938, with last amendments BGBl I Nr. 59/2017. All Austrian Acts are available at
www.ris.bka.gv.at.
19
Paragraph 66 of the Austrian Marriage Act. See also, Roth, Grounds for Divorce and Maintenance Between
Former Spouses, 2002, pp. 45-46. ceflonline.net/wp-content/uploads/Austria-Divorce.pdf (17/12/2019).
20
Ibid.
21
Paragraph 68. Roth (fn. 16), p. 38.
22
Paragraph 68a.

6
of fault are to be applied.23 If the court finds one of the spouses to be guilty for the breakdown of
marriage, in case provisioned by the paragraph 55 of the Austrian Marriage Act, then the general
rule on the maintenance between spouses under the paragraph 94 of the Austrian Civil Code is to
be applied.24 In latter case, the amount of maintenance should correspond to the maintenance
which spouse would obtain if the marriage hadn’t been divorced.25 But, in the case that no fault
has been determined, the court shall decide upon the maintenance claim insofar as it is equitable
regarding the needs, assets and earning capacity of the divorced spouses and the relatives eligible
for maintenance.26
Former spouses divorced by mutual consent are free to reach an agreement on the
maintenance. Such agreement would be examined by the court under the terms of validity of
contracts. In the case of an invalid maintenance agreement, the right to maintenance may be
exercised in accordance with the provisions under the paragraphs 68a or 69b of the Austrian
Marriage Act.27
The amount of the maintenance is determined in accordance with the guidelines laid down
in case law, in percentages that depend on the amount of the maintenance creditor's remuneration
and the obligation to support other persons.28
The duration of granted maintenance may be set as indefinite or as limited for a specified
period of time, by ruling of the court. Exceptionally, maintenance for former spouse who was

23
Under paragraph 50 of the Austrian Marriage Act, spouse may claim for divorce on the ground of irretrievable
breakdown of marriage due to other spouse’s mental illness or comparable impairment when the restoration of the
marriage community cannot be expected. Under paragraph 52 of the Austrian Marriage Act, spouse may claim for
divorce on the ground of irretrievable breakdown of marriage due to other spouse’s contagious disease, when the risk
of infection cannot be reasonable expected in foreseeable future.
24
Under paragraph 50 of the Austrian Marriage Act, spouse may claim for divorce on the ground of irretrievable
breakdown of marriage if the marriage community was interrupted for at least three years, only if the court is not
convinced that the restoration of marriage can be expected. Under paragraph 94 of the Austrian Civil Code
(Allgemeines bürgerliches Gesetzbuch, JGS Nr. 970/1846, with last amendments BGBl. I Nr. 105/2019), the spouses
have to contribute according to their possibilities to meet the needs of their common living conditions, and running
the common household is considered to be contribution. The spouse who had run the household is entitled to
maintenance, whereby his own income must be taken into account appropriately, unless if that would represent an
abuse of the right, particularly because of the reasons that led to the abolition of the common household. A spouse is
also entitled to maintenance if he is unable to make his contribution for satisfying the needs of common living
conditions.
25
Roth, (fn. 16), 39–40.
26
Paragraph 69b.
27
Roth, (fn. 16), p. 41.
28
A former spouse who has no income can receive 33% of the other spouse’s income. A former spouse who has his
or her own income can receive 40% of the total income of both ex-spouses, decreased by the amount of his or her
own income. If the debtor spouse has an obligation to support other persons as well, the maintenance allowance for
the ex-spouse is reduced by 3-4% per child and by 1-3% for the new spouse. A former spouse who is guilty of
divorce can receive 20-25% of the other spouse’s income. More on that, Ibid, p. 47.

7
found at fault for divorce is always time-limited by the court decision.29 The maintenance in the
case when the ex-spouse is taking care of the common children can last for the period until the
youngest child turns five years. The maintenance in the case when the ex-spouse is not able to
independently generate income sufficient for his or her own support due to the care of common
children or relatives during the marriage can last up to three years.
The maintenance obligation shall terminate (1) after the expiry of the period for which it
has been determined, (2) if the termination of the conditions for the maintenance is determined by
a new court decision, (3) by the death of the creditor spouse, (4) when the creditor spouse enters
into new marriage, or (5) when the creditor spouse concludes a registered partnership.

Maintenance between Former Registered Partners in Austria

The right to maintenance from a former registered partner is governed by the provisions
of the Austrian Registered Partnership Act.30 Considering the grounds for dissolution of a
registered partnership, the distinguish is made between three legal situations for obtaining
maintenance.
Provisions of paragraph 20 of the Austrian Registered Partnership Act regulate the
situation when the dissolution of partnership is grounded on fault of one of the partners. The
former partner who is found to be solely or predominantly at fault for termination of partnership
must pay maintenance to other partner, to the extent that the latter’s income from property and
from such gainful employment as he or she may reasonably be expected to accept is insufficient
to support the up-to-dissolution living standard. If both partners are guilty of termination, one
former partner may exercise the right to maintenance, according to his or her needs, financial
capacity, employment and maintaining responsibilities for the other persons. Regardless of the
guilt, the right to maintenance has the ex-partner who devoted himself or herself to running a
household, taking care of the children or caring for a relative of one of the partners. In mentioned
case, former partner may obtain maintenance if he or she cannot find an employment due to the
lack of professional training, age, poor health, etc. Granted maintenance must be time-fixed, with
maximum of three years, contrary to the general rule that the court may order maintenance for a
limited or unlimited period of time.
29
Paragraph 68a.
30
Eingetragene Partnerschaft-Gesetz, BGBl. I Nr. 29/2010, with last amendments BGBl. I Nr. 161/2017.

8
 If the decision on the dissolution of partnership was delivered without a ruling as to fault,
the former partner who sought the termination of partnership may be obliged to support the other,
taking into account the needs, assets and employment opportunities of the latter’s and the
existence of relatives that the creditor partner should support.31
Partners who terminated the partnership by mutual consent are free to conclude
maintenance agreement. However, if such agreement has not been reached and the partnership
terminated due to the interruption of a community for more than six months, one former partner
may be obliged to support the other, given the needs of the creditor partner and the financial
capacity of the debtor partner.32
By the terms of the paragraph 23 of the Austrian Registered Partnership Act, the
maintenance obligation shall terminate (1) after the expiry of the period for which it has been
determined, (2) if the competent authority decide on the termination of the conditions for the
maintenance, (3) upon the death of the creditor partner, (4) if the creditor partner concludes the
marriage, (5) if the creditor partner concludes a new registered partnership, (6) if the creditor
partner improperly treats the debtor partner after the dissolution of the partnership, or (7) if the
creditor partner leads an immoral and dishonest life.

Maintenance between Former Spouses in France

The right to maintenance from a former spouse is governed by the provisions of the
French Civil Code.33 With account given to the grounds for divorce, there are two forms of
maintenance.
Provisions of article 281 of the French Civil Code regulate the situation of obtaining the
maintenance in the case when divorce was based on separation that lasted more than six years or
because of the spouse’s mental illness or comparable impairment that lasted more than six years.
In these cases, the spouse claiming for divorce for these reasons is obliged to give maintenance to
the other spouse. The amount of maintenance depends on the needs of the spouse creditor and the
ability of the spouse debtor to meet those needs, and it is paid monthly.34 Furthermore,

31
Paragraph 21 of the Austrian Registered Partnership Act.
32
Paragraph 21.
33
Code Civil des Français, with last amendments from 01.01.2020. All French Acts are available on
www.legifrance.gouv.fr.
34
Article 282 of the French Civil Code.

9
maintenance can be determined even if the spouse creditor has certain income for supporting
himself or herself, but only if that is not enough to maintain a standard of living, which he or she
enjoyed before the divorce.35 Exceptionally, the monthly obligation may be replaced by the lump
sum obligation.36
The provisions of article 283 of the French Civil Code regulate the termination of the
maintenance. The maintenance obligation terminates if the spouse creditor remarries once again.
If the spouse creditor enters into a registered partnership or establishes a concubine, the spouse
debtor may ask the court to suspend payments.
In the case of divorce on the ground of fault or mutual consent, the former spouse is
entitled to maintenance if the divorce results in significant changes in his or hers standard of
living. The obligation of the other spouse is to compensate for those changes as far as possible,
but to the extent that it does not constitutes an injustice to him or her.37 The law prescribes
criteria that the court takes into account when deciding whether to deny a claim for maintenance.
For example, those criteria are length of marriage, professional qualifications age and health
status of the spouses, the time that the spouses or one spouse has devoted or will have to devote
to the education of children, legal position of each spouse regarding the right to retirement, etc.38
The maintenance is granted as s lump sum. The amount of maintenance is determined by
the court, according to the needs of the creditor spouse having in minds his previous standard of
living, and the ability of the debtor spouse to provide for maintenance, with taking into account
the situation at the time of the divorce and its evolution in the foreseeable future.39 However, if
the debtor spouse is unable to make a lump sum payment, the court may allow the maintenance to
be periodic and to last for a specified period of time, not exceeding eight years.40 Exceptionally,
regarding the poor health of the creditor spouse, which prevents him or her from providing
maintenance for himself or herself, the court may grant maintenance for life time, with pays in
monthly annuities.41 The law regulates several payment methods: cash payment, transfer of
ownership of real estate or movable property, transfer of the right to enjoy or to use the property,

35
Ferrand, Grounds for Divorce and Maintenance Between Former Spouses, 2002, p. 38 et seqq. ceflonline.net/wp-
content/uploads/France-Divorce.pdf (22/12/2019)
36
Article 285.
37
Article 270.
38
Article 272.
39
Article 271.
40
Ferrand, (fn. 32), p. 35.
41
Ibid., p. 36.

10
or deposit of shares and other securities to a third party, who will pay to the creditor spouse
maintenance amount for the time determined by the judge.42
The lump sum payment obligation ceases when being paid, and it is irrelevant if in the
meantime the creditor spouse has entered into a new marriage or registered partnership. 43 On the
other hand, if the maintenance obligation is determined to be paid periodically or in annuities, the
maintenance obligation shall terminate (1) after the time for which it was determined, (2) when
the termination of the conditions for the maintenance is determined by a new court decision, (3)
when creditor spouse enters into marriage or (4) when the creditor spouse concludes a registered
partnership.44

Maintenance between Former Registered Partners in France

The right to maintenance from former registered partners is governed by the provisions of
the French Civil Code. Former registered partners are free to settle any issues of mutual
obligations arising from the termination of a registered partnership by agreement. 45 In the
absence of such an agreement, all claims that the former registered partners have in relation to
each other before the court shall be settled in accordance with the general rules on the termination
of the legal community.46

Maintenance between Former Spouses in Italy

The right to maintenance from a former spouse is governed by the Italian Divorce Act.47
There is only one ground for divorce in Italian law – irretrievable breakdown of the marriage.
In the case of a divorce, former spouse who lacks sufficient resources or is unable to
support himself or herself for objective reasons is entitled to maintenance from other spouse.48
42
Article 274. Ferrand, (fn. 32), p. 35, 40 et seqq.
43
Ibid., p. 56.
44
Ibid., p. 56.
45
Article 517-7.
46
Article 517-7. The general rules on dissolution of the legal community are contained in the provisions of Article
1469 of the French Civil Code. All the claims that members of the legal community raise against each other, in the
event of dissolution of the legal community, are evaluated in terms of the contribution that each member made
during the legal community and the changes that arose in the material position of each member when living in
community and after the community terminated.
47
Legge 01.12.1970, n. 898, „Disciplina dei casi di scioglimento del matrimonio“, with last amendments D.Lgs.
01.03.2018, n. 21. All Italian Acts are available on www.altalex.com.

11
The legal standard of "sufficient resources" has been interpreted differently in the jurisprudence
over time: as the inability of a creditor spouse to lead an independent and dignified life with
available funds, as a lack of proportion between the means of the creditor spouse (who may even
be self-sufficient) and the means of the other spouse, and as an inability of the creditor spouse to
maintain the standard of living to which he or she was accustomed during the marriage.49
When deciding on the right to maintenance and the amount of maintenance, the judge
appreciates the living situation50 and income of former spouses, the reasons for the divorce
decision,51 the personal and economic contribution of each spouse to the joint household and the
acquisition of personal and joint property.52 The judge considers these criteria with regard given
to the duration of the marriage, which, although not an autonomous condition, can affect both the
decision on maintenance and the amount of maintenance.53
Maintenance is granted in monthly amounts.54 However, parties may agree and the court
may decide on granting the maintenance as a lump sum, insofar as the court finds such
determination to be equitable.55
The maintenance obligation terminates (1) with the expiry of the period for which it has
been determined, (2) when the creditor spouse enters into a new marriage, (3) if the court decides
to terminate the maintenance in the case when the creditor spouse establishes a long-term living
community with another person56 or (4) with the death of the creditor spouse.

48
Article 5 (6) of the Italian Divorce Act.
49
Patti et al., Grounds for Divorce and Maintenance Between Former Spouses, 2002, p. 19. ceflonline.net/wp-
content/uploads/Italy-Divorce.pdf (25/12/2019)
50
Ibid., рp. 23, 25.
51
Fact regarding the behavior of both spouses during the marriage and the existence of fault of one of the spouses for
the breakdown of marriage affect only the decision of amount of maintenance. These facts have no determining
effect on the decision on the right to maintenance. See also, Ibid., рр. 23, 26.
52
Article 5 (6). More about the mentioned criteria, see Ibid., рр. 25 et seqq.
53
Ibid., рр. 26, 29, 39.
54
Article 5 (6).
55
Article 5 (8).
56
Establishing a long-term living community with another person does not automatically lead to the termination of
the maintenance obligation, as does entering into a new marriage. On the contrary, in such a case the debtor spouse
has the right to raise claim before the court for suspension of the maintenance payment or reducing the maintenance
amount, if the establishment of a new community beneficed the financial situation of the creditor spouse, and
consequently the conditions for determining maintenance, or current amount of maintaining, are no longer fulfilled.
See also, Patti et al., (fn. 46), p. 38.

12
 Maintenance between Former Registered Partners in Italy

The right to maintenance from former registered partner is governed by the provision of
the Italian Law on Civil Communities.57
In the event of dissolution of the partnership, the former partner is entitled to maintenance
if he or she is unable to provide for his or her own needs. The decision on maintenance depends
on the duration of the partnership.58
The maintenance amount is determined in accordance with Article 438 of the Italian Civil
Code.59 The provisions of Italian Civil Code on the matter prescribe the general principle for
deciding on the amount of maintenance between relatives, which is setting the proportion
between the needs of the creditor relative (spouse) and the financial possibilities of the debtor
relative (spouse). Nevertheless, the maintenance amount should not exceed what is necessary for
satisfying the needs of the creditor spouse accordingly to his or her social status.60

Maintenance between Former Spouses in Germany

The legal obligation to maintain former spouse is governed by the provisions of the
German Civil Code.61 There is only one ground for divorce in German law – irretrievable
breakdown of the marriage.
In the event of a divorce, each of the former spouses is responsible for providing for their
own maintenance. If one of the former spouses is unable to do so, he or she is entitled to
maintenance from the other spouse, but only in situations governed by law.62 The general
conditions for obtaining the maintenance are one former spouse being at need for financial
support and other spouse being financially able to provide for those needs. If these basic

57
Legge 20.05.2016, n. 76, „Regolamentazione delle unioni civili tra persone dello stesso sesso e disciplina delle
convivenze“.
58
Article 65 of the Italian Law on Civil Communities.
59
Article 65.
60
Article 438 of the Italian Civil Code. Codice Civile, Regg.D. 16.03.1942, n. 262, with last amandments D.Lgs.
10.05.2019, n. 49.
61
Bürgerlichen Gesetzbuches, with last amendments BGBl. I S. 2911 vom 21.12.2019. All German Acts are
available at https://www.gesetze-im-internet.de.
62
Paragraph 1569 of the German Civil Code.

13
conditions are met, attention is given to the circumstances of the particular situation which
justifies granting the maintenance, as prescribed by law.63
(1) The former spouse who cannot be expected to pursue gainful employment by
reason of having to care for or to educate a common child is entitled to maintenance until the
child reaches the age of three.64 The right to maintenance may be extended if it is equitable under
the circumstances of the case, particularly taking into account the spouse's ability to pursue
gainful employment.65 When deciding on the maintenance, account is given to the number of
common children and their age, with regard to the expectation of pursuing an employment. For
example, the courts recognized that a spouse caring for one child is not expected to seek
employment until the child goes to school, and that is reasonable to expect a spouse to seek part-
time work when the child is at age of 11-15 years.66
(2) The former spouse who cannot be expected to pursue gainful on account of his or
her age is entitled to maintenance.67 This situation must be present either at the date of the
divorce, or at the date of the completion of the care or education of a common child, or at the
time of the cessation of the conditions for obtaining the maintenance under the paragraphs 1572
to 1573 of the German Civil Code.68 The term “age” in this context is interpreted in accordance
with the rules for exercising the right to an old-age social security pension. Nevertheless, such
interpretation is not being restrictive.69
(3) The former spouse whose state of health, by reason of sickness or infirmity,
prevents gainful employment is entitled to maintenance.70 This situation must be present either at
the date of the divorce, or at the date of the completion of the care or education of a common
child, or at the time of termination of education, continuing education or retraining of the creditor
spouse, or at the time of cessation of the conditions for obtaining the maintenance under the
paragraph 1573 of the German Civil Code. It is irrelevant whether the sickness or infirmity
existed before marriage or did occur during the marriage.71

63
Martini, Schwab, Grounds for Divorce and Maintenance Between Formal Spouses, 2002, p. 25–27.
ceflonline.net/wp-content/uploads/Germany-Divorce.pdf (29/12/2019).
64
Paragraph 1570.
65
Paragraph 1570.
66
See also, Martini, Schwab, (fn. 60), p. 28.
67
Paragraph 1571.
68
See also, Martini, Schwab, (fn. 60), p. 28 et seqq.
69
Ibid.
70
Paragraph 1572.
71
See also, Martini, Schwab, (fn. 60), p. 29 et seqq.

14
 (4) If the former spouse is not already entitled to maintenance in accordance with the
rules previously presented, he or she may claim maintenance from the other spouse until
appropriate employment is found.72 Also, if an employed former spouse does not provide
sufficient income to fully support him or herself, he or she is entitled to maintenance in the
amount of the difference between his or her own income and the full maintenance.73
Aforementioned applies only in the case if he or she cannot obtain right to maintenance on
another basis. For these reasons, this maintenance claim is generally considered to be subsidiary
to others and may be limited in time.74 The term “employment” in this context is interpreted as
employment that correspond the education, profession, age, health status and previous
employment of a former spouse, insofar such employment is not unfair in terms of his or her
standard of living during the marriage.75
(5) The right to maintenance lies on the former spouse who omitted to acquire or
interrupted formal education or occupational training, due to the expectation of marriage or
during the marriage.76 This applies only to the cases when the creditor spouse undertakes the
necessary education, further education or retraining for eliminating these disadvantages, and
aiming to pursue employment.77 Maintenance depends on the expected time for completion of
undertaken education or retraining.
(6) The former spouse is entitle to maintenance if he or she cannot be expected to
pursue gainful employment for other serious reasons, insofar the refusal of maintenance in such
case would be considered to be grossly inequitable, taking into account the concerns of both
spouses.78 Nevertheless, serious reasons that led to the breakdown of marriage are to not be taken
into account.79
The maintenance amount should be determined so that the creditor spouse may obtain the
standard of living he or she had during the marriage.80 The rules for determining the maintenance
amount are set down by the courts, as the rulebook and the Düsseldorf table.81 Generally, the

72
Paragraph 1573.
73
Paragraph 1573.
74
Paragraph 1573.
75
Paragraph 1574.
76
Paragraph 1575.
77
Paragraph 1575.
78
Paragraph 1576.
79
Paragraph 1576.
80
Paragraph 1578a.
81
See also, Martini, Schwab, (fn. 60), p. 32 et seqq.

15
maintenance is not time-limited, but the court will set time limit if it would be unfair for the
debtor spouse.82
Nevertheless the aforementioned rules, the maintenance would be rejected, reduced or
time-limited if the maintenance claim would constitute a gross inequity to the debtor spouse in
the cases prescribed by law. Those cases being: a) the short duration of marriage, b) the creditor
spouse has a stable long-term relationship, c) the creditor spouse has committed a crime or
misdemeanor against the debtor spouse or his or hers close relative, d) the creditor spouse has
caused his or her own difficulties by serious negligence, e) the creditor spouse had seriously
neglected the substantial property interests of the debtor spouse, f) the creditor spouse had
seriously violated his or hers obligation to contribute to the running of the common household for
a long period, g) the creditor spouse is guilty of grave misconduct towards the debtor spouse, or
h) other reason as serious as mentioned.83
The maintenance obligation terminates (1) when the creditor spouse enters into a new
marriage, (2) when the creditor spouse concludes a registered partnership, (3) by the death of the
creditor spouse,84 or (4) by the expiry of the time period the maintenance was granted.

Maintenance between Former Registered Partners in Germany

The right to maintenance from a former registered partner is regulated by the German
Registered Partnerships Act,85 with single norm, referring to the rules on maintenance between
former spouses.86

Maintenance between Former Spouses in Serbia

The right to maintenance between former spouses is governed by the provisions of the
Serbian Family Act.87 In Serbian law there are two grounds for divorce - a divorce by one

82
Paragraph 1578b.
83
Paragraph 1579.
84
Paragraph 1586.
85
Gesetz über die Eingetragene Lebenspartnerschaft, BGBl. I S. 266 vom 16.02.2001, with last amendments BGBl. I
S. 2787 vom 20.07.2017.
86
Paragraph 16 of the German Registered Partnerships Act.
87
Породични закон, „Сл. гласник РС“, бр. 18/2005, 72/2011 – др. закон и 6/2015.
www.paragraf.rs/propisi/porodicni_zakon.html

16
spouse’s claim of seriously and permanently disturbed marital relationships or of an objective
inability to live together, and a divorce by mutual consent. The right to maintenance between
former spouses is regulated independently of the grounds of divorce.
The divorced spouse is entitle to maintenance if he or she does not have necessary
resources to meet his or her own needs, but only in the case that he or she is unemployed or
unable to work.88 The lack of necessary resources is the first condition which must exist in every
case of maintenance claim. The second condition is alternately determined: the divorced spouse
is unemployed or the divorced spouse is unable to work. The maintenance is granted
proportionally to the financial capacity of other spouse, but only to the extent that it does not
constitute gross inequity towards him or her.89
The legislator indicated the circumstances that the court should take into account when
determining the needs of the creditor spouse: age, health, education, assets, income and other
circumstances. The legislator does the same with respect to the capacity of the debtor spouse,
stating exemplary criteria that the court can and should consider: income, property, employment
and acquisition of property, personal needs, obligation to maintain other persons, and other
circumstances. When deciding on the maintenance, the court also takes into account the
minimum amount of maintenance, which is determined as the compensation for the children on
foster care. This compensation is periodically set by the ministry responsible for family
protection.90
The maintenance is granted in monthly pays, as a nominal amount or as percentage of the
income of the debtor spouse.91 The court may determine maintenance as time-limited or not.
Nevertheless, the maintenance obligation cannot exceed five years after the marriage.
Exceptionally, the maintenance may be extended over the five-year limit after the marriage, if the
creditor spouse is prevented from working by particularly justifying reasons.92
The maintenance obligation terminates (1) by the expiry of the time period the
maintenance was granted, (2) by the court decision determining the termination of the conditions

88
Article 151 of the Serbian Family Act.
89
Article 151.
90
Article 160.
91
Article 162.
92
Article 163.

17
for the maintenance, (3) by the death of one of the former spouses, and (4) if the creditor spouse
enters into a new marriage.93

Maintenance between Former Extramarital Partners in Serbia

The right to maintenance between former extramarital partners is regulated by provision

of the Serbian Family Act, stipulating that the rules on the maintenance between former spouses
are to be applied.94

CONCLUSION REMARKS

The maintenance between former spouses and registered partners is one of the legal
consequences of the termination of marriage or partnership. Тhere are significant differences
between European legal systems in terms of the right to maintenance, regarding the legal
recognition of heterosexual and homosexual unions. Having in mind the benefit for EU citizens,
the courts should interpret the living unions with accordance to its nature and consequences.
The process of harmonization of the EU legal area has also affected family law, and the
first step towards this direction was taken by adopting non-binding Principles of Commission on
European Family Law.
The Principle of non-differentiation of the conditions for maintenance according to the
grounds for divorce was realized only in Serbia, having in mind that in law of Italy and Germany
there is only one ground for divorce. German law provides a very interesting example of the
regulation of this issue: maintenance is not related to the ground of divorce, but is related to
legally determined situations in which the former spouse is entitled to maintenance. In Austrian
law, the right to maintenance is directly subordinated to the various grounds of divorce. In the
French law, the distinction is made between, on the one hand, the conditions for maintenance in
cases of divorce on the grounds of six-year separation or six-year existence of a mental illness of

93
Article 167. The fact of constituting the extramarital union is not regulated as the ground for termination of
maintenance obligation. Nevertheless, this fact may be appreciated by the court when determining if the general rules
for obtaining maintenance are fulfilled (needs of the creditor spouse - the capability for the debtor spouse) and within
the legal standard of gross inequity.
94
Article 152.

18
the spouse, and on the other hand, the conditions for maintenance in cases of divorce by mutual
consent or by fault.
The Principle of general conditions for maintenance is actualized in laws of observed
European countries. The maintenance is determined according to the creditor spouse having
insufficient resources to meet his or her needs and the debtor spouse’s ability to satisfy those
needs, taking into account differences in the formulations of regulations of particular legal
systems. It is interesting to note that these conditions are legal standards, which are determined
by case law, according to living standard at the relevant geo-economic area and the living
standard of particular former spouses and partners. And so, there may be significant differences
in terms of these legal standards both between the countries and within particular countries.
The specific circumstances that the court should appreciate when deciding on
maintenance in German, French, Italian and Serbian law more or less correspond to those
proclaimed by the Principles. Austrian law regulates the specific circumstances for obtaining the
maintenance according to the grounds for divorce.
Generally, in German, Austrian, Italian and Serbian law the maintenance is resolved in
the form of monthly payments. The exception is French law, regulating the determination of
maintenance as a lump sum, which under specific circumstances may be set as a monthly
obligation. Also, in French law maintenance is always resolved as monthly payments in cases of
divorce on the ground of six-year separation or six-year illness of the spouse.
It is interesting to point out the specific solutions of German and Austrian law, set out by
courts, regarding the determination of maintenance amount. In German law, rules on the matter
are presented as Düsseldorf table, and in Austrian law the rules are presented as the percentage
determinants of maintenance. Provisions of Serbian law stipulate that account must be given to
the minimal maintenance amount, determined as the compensation for children at foster care.
The Principle of time-limited maintenance, understood as the maximum duration of
maintenance obligation prescribed by law, is adopted in Serbian law and in certain legal
situations in Austrian law. There are no provisions in French, German and Italian law as to how
long the right to maintenance can last, and it is up to the court to decide in each individual case
on the time period of the maintenance.
In laws of Germany and Serbia the maintenance between former registered partners and
extramarital partners is regulated by the same rules as the maintenance between former spouses.

19
In Austrian law the right to maintenance between former registered partners is regulated in
accordance with the grounds for dissolution of partnership. The rules of French law on the matter
refer to the rules on the consequences of dissolution of legal communities, while the rules of
Italian law on the matter refer to the general provisions on maintenance between relatives.
Despite the efforts of legislators in these European countries, aiming the regulation of
maintenance claim to be as precise as possible, the great margin of appreciation is given to the
judge, through an assessment of equity standard. This method of regulation is justified by the
nature of social relations underlying the maintenance claim.
This comparative analysis showed that there are significant differences between European
legal systems in terms of right to maintenance. For example, a maintenance claim between
former spouses in Austrian and French law is decided upon the conditions according to the
grounds for divorce. In German law, a maintenance claim between former spouses is decided
upon the conditions for a specific legal situation regulated by law for obtaining maintenance. In
Italy, the matter is decided upon the general and specific conditions for obtaining the
maintenance. The differences are even more notable when the attention is given to maintenance
claims between former registered partners, as already explained.
Although French, German and Austrian legal systems influenced the construction of the
Serbian legal system, such effect had not been achieved in the area of family law. Furthermore,
although French Civil Code was paragon for the Italian Civil Code, no great similarities are to be
found in the area of family law. This confirms the expectation of differences between these
particular European countries in family law matters.
The overall conclusion of the presented comparative analysis is that harmonization
process of family law of European legal systems is still in its beginning. Nevertheless, the
question remains whether this harmonization is preferable or not. When searching for answers,
attention must be given to cultural origin of nations, but as well to the equality of rights of
citizens of the European Union, unrestricted with state borders.

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22