The law applicable to maintenance obligations is determined by 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 (Official Journal EU L 7 of 10.01. 2009, p. 1).
The main goals of alimony are not limited to justifying the institution with the financial situation of the parties, they are also ethical in nature. Polish law regulates maintenance obligations in Art. 128 – 144 k.r.o. On the basis of the Act, it can be inferred that the content of the maintenance obligation is the provision by the obliged person of means of subsistence – to the entitled person, i.e. a person who is unable to meet his justified needs with his own efforts. An interesting issue here is the issue of pursuing maintenance claims in cases with a cross-border element. Pursuant to the indication of Art. 63 of the Act of February 4, 2011 – Private International Law (i.e. Journal of Laws of 2015, item 1792) – „The law applicable to maintenance obligations is determined by Council Regulation (EC) No. 4/2009 of December 18, 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (Official Journal EU L 7 of 10.01.2009, p. 1)”. The scope of the regulation is wide, it applies not only to maintenance obligations arising from a family relationship, but also to consanguinity, marriage and affinity. The regulation in question does not contain, expressis verbis, the regulation of the law applicable to maintenance obligations. This act mainly regulates procedural issues. Therefore, it should be pointed out that the applicable law was, through the institution of reference, defined in Art. 15 of the EU regulation. According to the said provision, the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations in the Member States to which this protocol is binding should be followed. In turn, pursuant to Art. 3, as a result of the conclusion of the Protocol by the European Community, it applies to all Member States, except Denmark. It is the Protocol of 2007 that is the basis for the Polish court to determine the law applicable to maintenance obligations in the scope of its application, which is identical to the scope of the Regulation of December 18, 2008, with the extension that maintenance obligations towards a child are regardless of marital status parents. The material scope of the Hague Protocol also undoubtedly includes maintenance obligations resulting from adoption, but not the claims of the mother of a child born out of wedlock related to pregnancy and childbirth.
In the absence of a choice of law by the parties to the relationship, as a general rule, maintenance obligations are governed by the law of the country where the creditor has his habitual residence. However, in the Protocol of 2007, as regards the choice of the applicable law, a unique possibility was allowed to indicate it by the parties – both generally for the maintenance obligation (the choice is binding until the parties change their minds on this matter) and only with the consequences limited to a specific proceeding (the choice is binding until the completion of a specific proceeding, however, it should also be taken into account in proceedings after the ruling has become final). This choice is limited to the substantive law of the seat of the court and is not limited by time. The parties may choose at any time. However, if we are talking about the choice of the law applicable to a specific proceeding before the initiation of the proceeding, the form of a legal act has been reserved. The contract signed by both parties should be in writing or recorded in another way, so that there is a possibility of later access to the information contained in the contract.
The regulations contained in paragraphs 4 and 5 of Article 8 of the Hague Protocol are of significant importance for the protection of the creditor. Firstly, they provide that, irrespective of the law chosen by the parties, it is the law of the state in which the creditor has his habitual residence at the time of the choice that determines whether the creditor can waive the right to claim maintenance. Second, that the law chosen by the parties does not apply if its application would lead to manifestly unjust or unfair consequences for one of the parties, unless, at the time of choosing the law, the parties were fully informed and aware of the consequences of their choice.