How are maintenance claims pursued abroad? An analysis of the 2007 Hague Convention, in force for Turkiye since 1 February 2017, the central authority system and categories of application, free legal assistance in child support cases, the conditions for recognition and enforcement, the relationship with the 1956 New York and 1973 Hague Conventions, the reservation concerning maintenance arrangements, accrued arrears and enforcement proceedings.
Where the maintenance debtor and the maintenance creditor are located in different countries, one of the most practical and most prejudicial problems of family law arises. The existence of a maintenance decision on paper is not sufficient in itself; the real question is whether that decision can actually be enforced in the country where the debtor is located. Owing to the number of its citizens living abroad and the prevalence of mixed marriages, Turkiye is among the countries most frequently confronted with this problem. The legal framework in this field is layered: a number of international conventions to which Turkiye is a party apply alongside the rules of domestic law. Taking as its focus the 2007 Hague Convention, which entered into force for Turkiye on 1 February 2017, this article comprehensively examines the central authority system, the categories of application, the conditions for recognition and enforcement, the relationship with earlier conventions, the question of applicable law and the practical problems encountered at the enforcement stage.
1. The Practical Problem and the Layered Structure of the Legal Framework
The fundamental difficulty encountered in maintenance disputes with a foreign element is that the state in which the decision was rendered differs from the state in which the assets of the debtor are located. The maintenance creditor is usually the economically weaker party, with limited means to pursue proceedings in a foreign country. For this reason, international instruments have sought to establish a system based on administrative cooperation between states, one that does not leave the creditor to conduct legal proceedings abroad alone. Under Turkish law the framework is layered: on the one hand there are the international conventions to which Turkiye is a party, and on the other the general provisions on recognition and enforcement in the Act on Private International Law and Procedural Law No. 5718. Which instrument applies in a given case is determined by the conventions to which the state of origin is a party, the date of the decision and the nature of the request. This determination is the first and most critical step in the correct conduct of the process.
2. A Map of the Conventions to Which Turkiye Is a Party
The principal international instruments to which Turkiye is a party in the field of maintenance are: the 1956 United Nations New York Convention on the Recovery Abroad of Maintenance; the 1956 Hague Convention on the Law Applicable to Maintenance Obligations Towards Children; the 1958 Hague Convention concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children; the 1973 Hague Convention on the Law Applicable to Maintenance Obligations; the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations; and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. The basic principle governing the relationship between these instruments is as follows: as between states that are mutually parties to the later convention, the later convention applies; in relations with states that are not parties, the earlier instruments remain in force. Thus the 1956 and 1958 Hague Conventions do not apply as between states that are mutually parties to the 1973 Conventions. The 2007 Convention, for its part, was drafted with the aim of replacing the earlier instruments, including the 1956 United Nations Convention. In practice, the first step is to establish which conventions the state concerned is a party to.
3. The 2007 Hague Convention: Purpose, Scope and Entry into Force for Turkiye
The 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is the most recent and most comprehensive instrument in this field. Turkiye became a party to the Convention in 2016, and the Convention entered into force for Turkiye on 1 February 2017. The purpose of the Convention is to establish a comprehensive system of cooperation between the authorities of contracting states, to make available applications for the establishment of maintenance decisions, to provide for the recognition and enforcement of maintenance decisions, and to require effective measures for the prompt enforcement of maintenance decisions. As a rule the Convention applies to maintenance obligations arising from a parent-child relationship towards a person under the age of twenty-one, to maintenance obligations between spouses and former spouses, and, within the framework of declarations made by contracting states, to other maintenance obligations arising from family relationships. The distinguishing feature of the Convention is that it is not merely an instrument on recognition and enforcement, but establishes a comprehensive system also covering administrative cooperation, the establishment of decisions, their modification and actual recovery.
4. The Reservation of Turkiye concerning Maintenance Arrangements
The sole reservation entered by Turkiye in respect of the 2007 Convention concerns maintenance arrangements. The Convention provides for the recognition and enforcement also of maintenance arrangements which are not judicial decisions but which are enforceable under the law of the state of origin. Turkiye has entered a reservation on this point, reserving the right not to recognise and enforce maintenance arrangements. The practical consequence of this reservation is significant: where contracting states apply to the Turkish authorities for the recognition or enforcement of a maintenance arrangement, such a request will not be granted by reason of the reservation. Accordingly, maintenance arrangements concluded abroad before a notary or an administrative authority, but not embodied in a court decision, are not directly enforceable in Turkiye. In such cases the creditor must either advance the maintenance claim afresh before the Turkish courts or obtain a court decision in the state of origin. This is a critical risk to be taken into account from the outset by parties concluding divorce proceedings abroad by agreement.
5. The Central Authority System and Categories of Application
The greatest strength of the 2007 Convention is the system of administrative cooperation operating through the central authorities designated by contracting states. In Turkiye the central authority is the General Directorate of International Law and Foreign Relations of the Ministry of Justice. The creditor applies to the central authority of the state in which the creditor is located; that authority transmits the request to the central authority of the state in which the debtor is located, and the process is conducted between the authorities. The categories of application available under the Convention are broad: recognition of a maintenance decision made in the state of origin; recognition and enforcement of such a decision; enforcement of a decision made in the requested state; establishment of a new maintenance decision in the requested state, including where necessary the establishment of parentage; modification of an existing decision; and applications by the debtor for a reduction of the decision. The functions of central authorities include transmitting and receiving applications, initiating proceedings, assisting in locating the debtor or the creditor, helping to obtain information concerning the income and assets of the debtor, encouraging amicable solutions, facilitating the enforcement of decisions and assisting in obtaining documentation.
6. Free Legal Assistance and the Principle of Cost-Free Proceedings in Child Support
One of the most important safeguards the Convention provides in favour of the creditor is the regime of legal assistance designed to ensure effective access. As a rule, contracting states are obliged to provide free legal assistance in respect of applications made under the Convention. This protection is stronger still in child support claims arising from a parent-child relationship: in such claims the requested state must as a rule provide free legal assistance irrespective of the means of the creditor. This provision seeks to prevent an economically weaker creditor from being overwhelmed by the burden of attorney fees and litigation costs in a foreign country. In practice, this safeguard is one of the most important factors making the pursuit of maintenance abroad actually feasible. By contrast, in claims falling outside the scope of the Convention or in areas covered by a reservation, the general rules on legal aid will apply.
7. Conditions for Recognition and Enforcement and the Grounds for Refusal
The Convention regulates the circumstances in which a maintenance decision made in the state of origin is to be recognised and enforced in other contracting states. The connecting bases provided for recognition and enforcement are broadly drawn: that the respondent was habitually resident in the state of origin when proceedings were instituted; that the respondent submitted to the jurisdiction; that the creditor was habitually resident in the state of origin; that the child was habitually resident in the state of origin; or that the parties concluded a written choice of court agreement. The fact that these bases are drawn more broadly than under the 1973 Convention facilitates the circulation of decisions. The grounds for refusing recognition and enforcement are limited in number and principally comprise: manifest incompatibility with the public policy of the requested state; the decision having been obtained by fraud; the pendency of proceedings between the same parties and having the same purpose in the requested state; incompatibility of the decision with a decision rendered in the requested state or entitled to recognition there; and failure to notify the respondent in due form together with a violation of the rights of defence. The prohibition on reviewing the merits applies here too; the authority of the requested state may not re-examine the substance of the foreign decision.
8. Relationship with and Comparison to the 1973 Hague Convention
The 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations was, before the entry into force of the 2007 Convention, the principal instrument in this field for Turkiye, and it continues to apply in relations with contracting states that are not parties to the 2007 Convention. The principal differences between the two instruments are as follows: the 2007 Convention establishes a comprehensive central authority and administrative cooperation system, whereas the 1973 Convention focuses essentially on recognition and enforcement; the 2007 Convention provides broader connecting bases for recognition and enforcement; the 2007 Convention guarantees free legal assistance in child support claims; and the 2007 Convention also covers applications for the establishment and modification of decisions. Which instrument applies in a given case depends on the party status of the state concerned. Where both Turkiye and the other state are parties to the 2007 Convention, that Convention applies in priority.
9. The Function and Limits of the 1956 New York Convention
The 1956 United Nations Convention on the Recovery Abroad of Maintenance is an instrument frequently misunderstood in practice. It is not a convention on recognition and enforcement. The Convention provides a mechanism of mutual assistance, operating through transmitting and receiving agencies, which facilitates the recovery of maintenance where the creditor and the debtor are located in different countries. The critical limit of the Convention is this: it does not permit the direct enforcement, in a contracting state other than the state in which it was rendered, of a foreign decision relating to a maintenance obligation. Indeed, the Convention provides that the manner in which a decision is to be enforced is determined by the law of the state of the debtor. Under Turkish law the consequence is clear: in order for a foreign maintenance decision to be enforced in Turkiye, an enforcement judgment must be obtained. In the practice of the Court of Cassation it has accordingly been held incorrect to dismiss an enforcement action on the ground that the claimant had no legal interest in bringing it by reference to the 1956 Convention; it was emphasised that the relevant recognition and enforcement conventions must be taken into account in the enforcement of maintenance decisions. The 1956 Convention therefore does not dispense with the need for enforcement; it merely facilitates the administrative aspect of the process.
10. The General Enforcement Route Under MOHUK
Where the state in which the decision was rendered is not a party together with Turkiye to a common maintenance convention, the enforcement of the foreign maintenance decision in Turkiye is secured under the general provisions on recognition and enforcement of Act No. 5718. In such a case the competent court is the family court, and venue lies with the court of the place of residence of the respondent in Turkiye, or failing that the place where the respondent is present. Where the respondent has neither a place of residence nor a place of presence in Turkiye, the action may be brought before the courts of Ankara, Istanbul or Izmir. The conditions required for enforcement are that the decision was rendered by a foreign court in a civil matter and has become final, that reciprocity exists, that the decision was rendered in a matter not falling within the exclusive jurisdiction of the Turkish courts, that it is not manifestly contrary to public policy, and that the rights of defence were observed. What must be borne in mind in respect of maintenance decisions is that, since maintenance involves an obligation requiring executory force, an enforcement judgment rather than mere recognition is required.
11. The Question of Applicable Law and the Non-Accession of Turkiye to the 2007 Protocol
A distinction frequently confused in this field is that the regime governing recovery and enforcement and the regime governing applicable law are set out in different instruments. Two separate instruments were adopted under the auspices of the Hague Conference in 2007: the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, and the Protocol on the Law Applicable to Maintenance Obligations. While Turkiye is a party to the Convention on recovery, it is not a party to the 2007 Protocol on applicable law. The practical consequence is that, for Turkiye, the law applicable to a maintenance obligation is determined not by the 2007 Protocol but by the 1973 Hague Convention on the Law Applicable to Maintenance Obligations, to which Turkiye is a party, together with the relevant provisions of Act No. 5718. Within this framework, the applicable law is as a rule the law of the habitual residence of the maintenance creditor. Turkiye accepted the 1973 Convention with a reservation to the effect that it would not apply to maintenance claims between collateral relatives and relatives by affinity. Moreover, the limited choice of law permitted under the 2007 Protocol is not directly applicable as regards Turkiye.
12. Accrued Arrears, Interest, Currency and Exchange Rate Issues
One of the matters giving rise to the greatest number of disputes in practice is accrued maintenance arrears. Where maintenance ordered by a foreign decision has remained unpaid for a long period, the question arises whether the enforcement request covers only future maintenance or also accrued arrears. As a rule, since an enforcement judgment recognises the executory force of the decision for Turkiye, arrears that have fallen due under the law of the state of origin may also be made the subject of execution proceedings. However, how the limitation periods under the law of the state of origin interact with the rules on limitation under Turkish law is contentious. A further practical problem is currency. Foreign decisions are frequently expressed in a foreign currency, and which exchange rate applies at the enforcement stage in Turkiye, together with claims for exchange rate differences and interest, become matters of dispute. For this reason it is of great importance that the enforcement request and the execution proceedings be formulated clearly and in calculable terms as regards the currency of the claim, the starting date for interest and the periodic maturity of instalments.
13. Modification and Adjustment of Maintenance
Maintenance decisions are by their nature open to changing circumstances. Where the financial situation of the parties, the needs of the child or living conditions change, an increase, reduction or discharge of maintenance may arise. In relationships with a foreign element this gives rise to an additional question of jurisdiction: which authority of which state may modify the existing decision. The 2007 Convention contains specific provisions on this matter and includes applications for the modification of decisions within its scope. The Convention contains provisions preserving the jurisdiction of the authorities of the state of the habitual residence of the creditor and introduces safeguards restricting the ability of a debtor unilaterally to obtain a decision in the state where the debtor is located so as to reduce the obligation. Under Turkish law, a request to adjust a foreign maintenance decision enforced in Turkiye on account of subsequently changed circumstances is the subject of a separate action before the Turkish courts, in which the determination of the applicable law arises anew.
14. The Enforcement Stage and Practical Problems of Recovery
Obtaining an enforcement judgment is not the end of the process but the beginning of the enforcement stage. Once the enforcement judgment has become final, the creditor may commence execution proceedings based on the judgment before the Turkish enforcement offices. The principal difficulties encountered at the enforcement stage are the absence of any known assets of the debtor in Turkiye, problems of service arising from the residence of the debtor abroad and the inability to identify the sources of income of the debtor. In this respect, the obligation of central authorities under the 2007 Convention to assist in locating the debtor and in obtaining information on income and assets provides important support. Turkish law further provides for coercive imprisonment under the Execution and Bankruptcy Law where a maintenance debt is not paid, and this sanction is a powerful instrument encouraging actual recovery. However, for this sanction to be applied, the procedural conditions must be meticulously satisfied and the proceedings correctly conducted. Where the debtor is located abroad, conducting recovery through the authorities of the other state is often the only effective course.
15. Conclusion and Practical Recommendations
The pursuit of maintenance claims abroad is a field in which effective results can be achieved when conducted with the right legal strategy, but which may remain fruitless for years where reliance is placed on the wrong instrument. The practical considerations to be observed are as follows: first establishing which maintenance conventions the state concerned is a party to and determining accordingly whether to proceed under the 2007 Convention, the 1973 Convention or the general enforcement route; making the application through the central authority under the 2007 Convention so as to benefit from free legal assistance; being aware from the outset that maintenance arrangements resting solely on agreement abroad will not be recognised in Turkiye and, where possible, having them embodied in a court decision; obtaining without omission the certificate of finality, the apostille and the sworn translation of the decision; formulating the claim clearly as regards arrears, interest and currency; and commencing enquiries into the assets of the debtor at an early stage with the support of the central authority. Given that maintenance claims are by their nature time sensitive, commencing the process without delay is the approach most consistent with the interests of the creditor.
For advisory services on the pursuit of maintenance claims abroad, applications to central authorities under the 2007 Hague Convention, the recognition and enforcement of foreign maintenance decisions in Turkiye, the adjustment of maintenance and enforcement proceedings, you may contact us at info@guzeloglu.legal.