Recognising Foreign Spousal Maintence DecisionsMarjet Groenleer
What if a court in America or Switzerland or elsewhere has made a ruling on spousal maintenance and you want to invoke it to claim against their assets in the Netherlands?
Recognition of foreign maintenance decisions
There are currently few treaties in force that give recognition to foreign courts’ decisions on maintenance. No arrangements have been made with the majority of countries. There is hardly any provision in law for the recognition of decisions on maintenance by courts outside the EU. A number of criteria have been devised in case law that a decision by a foreign court must adhere to in order to be recognised under Dutch law. The conditions are stricter than in the European context, but in practice there is often little difference. The most significant reason for refusal relates to the question of a fair trial. A fair trial must have taken place in which both sides have been heard. The jurisdiction of the American court must also conform to internationally recognised standards of jurisdiction. If these conditions are fulfilled, it is very likely that the maintenance decision in America will be recognised in the Netherlands. If the maintenance is not being paid, it’s of little use to the recipient because he or she is not getting their money. In this situation a claim against assets is needed.
Implementation of foreign maintenance decisions
In my previous blog you will have seen that the enforcement of maintenance decisions by EU courts is comparable with the enforcement of maintenance decisions by Dutch courts. Making a claim against assets in the Netherlands on the basis of a decision by a court within the EU is not a problem. Maintenance decisions issued by courts outside the EU cannot be enforced in the Netherlands. This is one of the main differences with decisions issued by judges within the EU. It means that the recipient of maintenance cannot make a claim against assets in the Netherlands based on an American judgment. He or she will have to make a new application in court. The Dutch court will have to reach a new decision on maintenance. In practice we see that ‘top and tail’ judgments are made. This is a Dutch decision that reiterates the foreign court’s decision. This is clearly not always possible, because it is not uncommon for all kinds of things to have changed in the circumstances of the person paying maintenance and/or the recipient, which may necessitate a revision of the maintenance awarded in the foreign jurisdiction. Anyone wanting to make a claim against assets in the Netherlands on the basis of an American maintenance decision will first need to apply to a court in the Netherlands to obtain what is known as enforceable title, a new ruling in which the Dutch court establishes the payment obligations.
Much depends, therefore, on whether the maintenance decision originates with a court in the EU or not. It remains the case that it is difficult to evade one’s responsibilities, because there are various organisations working together at global level that are concerned with reclaiming maintenance payments, such as LBIO in the Netherlands.