Pursuant to Article 63 of the Act of 4 February 2011 on Private International Law, the law applicable to maintenance obligations is determined by Council Regulation (EC) No. 4/2009 of 18 December 2008, which refers to the provisions of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.
This Protocol contains a general rule according to which maintenance obligations are governed by the law of the country where the creditor has their habitual residence. Thanks to this rule, a child or other person entitled to maintenance does not lose their rights when their debtor (usually a parent) permanently moves to another country.
The Protocol also contains a specific rule concerning, among other things, maintenance obligations of parents towards children, which is intended to further extend the protection of entitled persons:
Article 4
(…)
- If the creditor is unable, under the law referred to in Article 3, to obtain maintenance from the debtor, the law of the forum where the court hearing the case applies. This provision opens the door to obtaining maintenance in situations where the law of the creditor’s habitual residence does not allow it to be obtained and the case is pending before an authority in a country whose law allows it.
- Notwithstanding Article 3, if the creditor has brought an action before a competent authority of the country where the debtor is habitually resident, the law of the forum where the court hearing the case applies. However, if the creditor is unable to obtain maintenance from the debtor under that law, the law of the country where the creditor is habitually resident applies. The purpose of the above rule is to allow the maintenance creditor (child) to litigate against the debtor (parent) also before an authority in the country where the debtor has his or her habitual residence, providing protection in the event that the law of that country does not grant him or her (the creditor) maintenance.
- If the creditor is unable to obtain maintenance from the debtor under the law referred to in Article 3 and in paragraphs 2 and 3 of this Article, the law of their country of nationality shall apply if they have common nationality.
The final point of the Article allows for the potential application of the law of yet another country in the event that neither the law of the habitual residence of either party nor the law of the place of the adjudicating authority provides maintenance to the creditor (child).