MAINTENANCE BETWEEN FORMER

SPOUSES AND REGISTERED

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

Bojana Arsenijevic, LL.M.

PhD candidate at Faculty of Law, University of Nis, Serbia
 INTRODUCTORY NOTE
 CROSS-BORDER MAINTENANCE DISPUTES
 EU Integration
 Migration Trends
 Marriage and Divorce; Partnership and Dissolution

 JURISDICTION OF A COURT the Council Regulation (EC) No 4/2009 of 18 December

2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation
in matters relating to maintenance obligations

 APPLICABLE LAW The Hague Protocol of 23 November 2007 on the law applicable to
maintenance obligation
 Right to maintenance between former spouses and registered partners is directly connected with the
legal recognition of heterosexual and homosexual unions in particular legal systems.

MARRIAGE REGISTERED PARTNERSHIP

Condition of Gender neutral Only

Gender neutral provisions
different genders provisions same-sex partnerships

France Germany
Italy France (from 1999)
(from 2013) (from 2001)

Austria
Germany
Serbia (homosex. from 2010,
(from 2017) Italy (from 2016)
heterosex. from 2019)

Austria
(from 2019)
PRINCIPLES OF EUROPEAN FAMILY LAW
REGARDING THE DIVORCE AND MAINTENANCE
BETWEEN FORMER SPOUSES (2004)
 Maintenance between former spouses should be subject to the same rules regardless of the type of
divorce (2:1).

 Maintenance 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 (2:3).

 In determining maintenance, factors that should be taken in particular account (2:4):

 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.
 MAINTENANCE BETWEEN FORMER SPOUSES IN
AUSTRIA
 1) Divorce on the ground of fault:
 one spouse is solely or predominantly at fault: must pay maintenance
 both spouses are equally at fault: no maintenance (exception, if equitable)
 reform of 1999: guilty spouse may obtain maintenance

 2) Divorce on the ground of irretrievable breakdown:

 the court finds that one of the spouses is at fault provisions on fault
 without a ruling as to fault: if maintenance is equitable

 3) Divorce by consent:
 if maintenance agreement is found to be invalid, only in the case

(a) if it may be held equitable under the circumstance, or

(b) if it would be unreasonable to expect from one spouse to support him or herself
 MAINTENANCE BETWEEN FORMER REGISTERED
PARTNERS IN AUSTRIA

 1) Dissolution on ground of fault

 one partner is solely or predominantly at fault: the other may be granted maintenance
 both partners are equally at fault: one may be granted maintenance
 regardless of the determined fault

 2) Dissolution without determining the fault

 partner who sought dissolution may be obliged to give maintenance to the other

 3) Dissolution by consent
 maintenance may be granted if partnership has lasted at least for six months
 MAINTENANCE BETWEEN FORMER SPOUSES IN
FRANCE
 Divorce based on separation lasting for six years or mental illness of one spouse for at least
six years:
 the claimant must pay maintenance, depending to the spouse’s needs and financial capacity

 Divorce on ground of fault or by consent:

 one spouse may be obliged to pay maintenance as compensation for the disparity between the spouses’
living conditions caused by the divorce
 criteria for deciding on maintenance:
 the spouses’ age and health,
 the duration of the marriage,
 the time that the spouses or one spouse has devoted or will have to devote to the childrens’ education,
 the spouses’ professional qualifications and situation,
 the position of each spouse concerning a retirement pension, and
 the assets of each spouse.
MAINTENANCE BETWEEN FORMER REGISTERED
PARTNERS IN FRANCE

 The partners agree on the liquidation of the rights and obligations upon the dissolution of
registered partnership (civil pact of solidarity).

 If no agreement is reached, the claims that the partners have against each other are evaluated
under general rules for the liquidation of legal communities.
MAINTENANCE BETWEEN FORMER SPOUSES IN
ITALY

 One ground for divorce: the irretrievable breakdown of the marriage

 Maintenance may be granted to one spouse who lacks appropriate means or is unable to
provide for himself/herself due to the objective reasons.
 When deciding upon maintenance claim, in the light of the duration of the marriage the
following shall be taken into account:
 conditions of the spouses,
 reasons for divorce decision,
 assets and incomes of spouses, and
 personal and financial contribution made by each spouse to the welfare of the family and the
creation of personal and joint assets.
MAINTENANCE BETWEEN FORMER REGISTERED
PARTNERS IN ITALY

 Upon the dissolution of partnership, the former partner is entitled to maintenance if he or she
is unable to provide for his or her needs, to the extent of other partner’s ability to provide
maintenance.

 Maintenance is granted proportionally to the duration of partnership.

 MAINTENANCE BETWEEN FORMER SPOUSES AND
REGISTERED PARTNERS IN GERMANY
 One ground for divorce: the irretrievable breakdown of the marriage
 Maintenance may be granted to one spouse who is not able to maintain himself/herself, if
other spouse is able to provide for maintenance,
but only in following situations:
 maintenance based on the care of a child
 maintenance for aged spouses
 maintenance in the case of the sickness or infirmity of the divorced spouse
 maintenance until appropriate employment is found
 maintenance for the education, further education or retraining of the divorced spouse
 maintenance on the ground of equity

 Circumstances causing for maintenance to be grossly inequitable for the debtor spouse
MAINTENANCE BETWEEN FORMER SPOUSES AND
PARTNERS IN SERBIA
 Two grounds for divorce:

(1) marital relations are seriously and permanently disturbed or the community of life of the
spouses cannot be objectively pursued, and
(2) by consent

 Common rules for granting maintenance, regardless the type of divorce

1) One spouse lacking the appropriate means, and if he or she is either incapable of working or
unemployed;
2) Other spouse’s ability to provide for maintenance;
3) Corrective factor – minimal sum of maintenance, given as the monthly payment to children
on foster care.
 CONCLUSION

 In legal systems that regulate different grounds for divorce, the right to maintenance depends
on the ground for divorce, with exception to Serbia.

 Conditions for maintenance are lack of appropriate means for one spouse and ability of other
spouse to provide for maintenance.

 The rules on maintenance between former spouses and registered partners differ, with
exceptions to Germany and Serbia.
THANK YOU FOR YOUR
ATTENTION.