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Germany: Foreign Maintenance Act

GERMAN FOREIGN MAINTENANCE ACT

Gesetz zur Geltendmachung von Unterhaltsansprüchen im Verkehr mit Ausländischen Staaten

 

Part I. General provisions

Section 1

(1) Maintenance claims based on statute may be asserted in accordance with the procedure provides for in this Act where one party has his habitual residence within the area of application of this Act and the other party in an State with which reciprocity is ensured.

(2) With States in which a law corresponding to the present one is in force, reciprocity within the meaning of this Act is deemed to be ensured if the Federal Minister of Justice has acknowledged this to be so and made an official announcement to this effect in the Federal Law Gazette (Bundesgesetzblatt).

(3) States within the meaning of this Act shall include constituent States and provinces of federal States.

Section 2

(1) Judicial and extrajudicial recovery of maintenance shall be effected through the Central Authority as Receiving and Transmitting Authority. The Central Authority shall deal directly with the agencies designated abroad for this purpose and with the competent authorities situated within the area of application of this Act.

(2) The duties of the Central Authority shall be carried out by the Federal Prosecutor General (Generalbundesanwalt) at the Federal Court of Justice (Bundes-gerichtshof).

PART II. Outgoing requests

Section 3

(1) Jurisdiction to receive and examine requests shall be vested in that Local Court (Amtsgericht) as judicial administrative authority in whose district the person entitled to maintenance has his habitual residence.

(2) The request shall contain all the information that may be of importance to recovery. This includes:

a. the surname and forenames, address, date of birth, nationality, profession or occupation of the person entitled to maintenance, and where applicable, the name and address of his statutory representative;

b. the surname and forenames of the person obliged to furnish maintenance, further, in so far as the person entitled has knowledge thereof, the addresses in the last five years of the person obliged, the latter’s date of birth, nationality, and profession or occupation;

c. precise details of the grounds on which the claim is based, of the kind and amount of the maintenance claimed, and of the financial and family circumstances of the person entitled and, as far as possible, of the person obliged.

The appropriate civil status certificates and other relevant documents shall be attached. The court may make all necessary investigations ex officio.

(3) The request shall be signed by the claimant, by his statutory representative or by al lawyer whose power of attorney must be attached; the claimant or his statutory representative shall affirm in lieu of an oath that the information given is true. Attached to the request and its supporting documents shall be certified translations by a sworn translator into the language of the State to be requested. Special requirements of the State to be requested as regards form and content of the request shall be complied with unless this is barred by mandatory provisions of German law.

Section 4

(1) The head of the Local Court or the judge designated under the plan for the allocation of judicial administrative business shall examine whether litigation under German national law would offer sufficient prospect of success.

(2) If he holds that there is such prospect of success, he shall issue a certificate to this effect, arrange for it to be translated into the language of the State to be requested, and transmit it direct to the Central Authority, together with the request, supporting documents and translations, and three certified true copies of each of them. Otherwise, he shall refuse the request. Reasons shall be given for any refusal, which shall be served upon the claimant together with information about the right of appeal; under Section 23 of the Introductory Act to the Judicature Act, the refusal may be contested.

Section 5

(1) The Central Authority shall examine whether the request meets the formal requirements of the proceedings to be instituted abroad. If they are met, the Central Authority shall transmit the request together with a translation of the Foreign Maintenance Act to the Receiving Agency designated abroad. Section 4 subsection 2, second and third sentences, shall be applied mutatis mutandis.

(2) The Central Authority shall check that the request is properly executed.

Section 6

Where an order or any other executory title regarding the maintenance claim has already been made or issued by a domestic court, the person entitled to maintenance may, notwithstanding the request under Section 3, request registration of the order abroad. Sections 3, 4 and 5 shall be applied mutatis mutandis. The domestic executory title produced shall not be examined as to its legality.

PART III. Incoming requests

Section 7

(1) The incoming request should contain all the information that may be of importance to the enforcement of the claim. Section 3 subsection 2, second sentence, shall be applied mutatis mutandis.

(2) The request should be signed by the claimant, his statutory representative, or a lawyer whose power of attorney must be attached; it should be accompanied by observations of the foreign court which received and examined the request. The court’s observations should also cover the question of what amount of maintenance is required under the circumstances prevailing at the place of residence of the person entitled. The request and the supporting documents should be transmitted in duplicate.

(3) The appropriate civil status certificates, other relevant documents and, if available, a photograph of the person obliged, should be attached and other evidence should be described precisely. The request and the supporting documents should be accompanied by translations into German; in relations with certain States or in individual cases, the Central Authority may dispense with this requirement and arrange the translations itself.

Section 8

(1) The Central Authority shall take all appropriate steps to have the payment of maintenance enforced for the person entitled. In doing so it shall take account of the interests and wishes of the person obliged.

(2) The Central Authority shall be deemed to be authorized to take extrajudicial or judicial action on behalf of the person entitled either itself or, by sub-power of attorney, through agents. Such action includes in particular settlement of recognition of the claim, and, if necessary, the institution and prosecution of an maintenance action as well as the institution of proceedings for the enforcement of an executory title for payment of maintenance.

Section 9

Where the intended litigation offers sufficient prospect of success and does not appear frivolous, legal aid shall be granted under this Act for proceedings instituted as a result of incoming requests even in the absence of an express application by the party entitled, with toe proviso that no payments are to be made to the Treasury of al Land or the Federation. By being granted legal aid under this Act, the claimant shall be fully and finally exempted from paying the costs referred to in Section 122 subsection 1 of the Code of Civil Procedure, unless legal aid is withdrawn under Section 124 No. 1 of the Code of Civil Procedure.

Section 10

(1) Judicial maintenance orders emanating from States with which reciprocity in accordance with Section 1 is ensured shall be declared enforceable by execution in accordance with Section 722 subsection 1 and Section 723 subsection 1 of the Code of Civil Procedure. The executory judgment shall not be given if recognition of the foreign order is barred under Section 328 subsection 1 Nos. 1-4 of the Code of Civil Procedure.

(2) Where the foreign order is to be declared enforceable by execution, the court, upon application by either party, may alter in the executory judgment the maintenance awarded by the foreign order with regard to the amount and duration of the payments to be made. Where the foreign order is res judicata, any alteration shall only be admissible in accordance with Section 323 of the Code of Civil Procedure.

(3) Jurisdiction for an action for the pronouncement of an executory judgment shall be vested exclusively in that Local Court which has general jurisdiction over the debtor or, where there is no such general jurisdiction in the domestic territory, that court in whose district any property of the debtor is located. If the foreign order ist the result of a claim which, under Section 621 subsection 1 Nr. 4 or 5 of the Code of Civil Procedure, would be a family matter, the Family Court shall decide.

Section 11

Where the foreign order has been given without the debtor having been heard, provisionally and subject to affirmation by the requested court, it shall be deemed to be a request within the meaning of Section 7. Sections 8 and 9 shall be applied mutatis mutandis.

PART IV. Costs

Section 12

For extrajudicial proceedings, including the receiving of, and dealing with, requests by the judicial authorities, no fees shall be charged nor shall reimbursement of expenses be demanded.

Section 13

Section 29 of the Act relating to 'Rechtspfleger' of 5 November 1969 (Federal Law Gazette (Bundesgesetzblatt) I, p. 2065), last amended by the Act of 18 December 1986 (Federal Law Gazette I, p. 2501) shall be revised as follows:

Section 29 on International legal business

The effecting of foreign applications for service, required of the registry of the Local Court under statute, and the receiving of requests asserting a claim for maintenance under the Convention of 20 June 1956 on the Recovery Abroad of Maintenance read in conjunction with the Act of 26 February 1959 (Federal Law Gazette II, p. 149) or under the Foreign Maintenance Act of 19 December 1986 (Federal Law Gazette I, p. 2563), are herewith placed under the responsibility of the ‘Rechtspfleger’."

PART VI. Final provisions

Section 14

This Act shall also extend to Land Berlin in compliance with Section 13 subsection 1 of the Third Transference Act.

Section 15

This Act shall come into force on 1 January 1987.

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