The analysis focuses on cases that raise the issue of legal uncertainty with regard to the determination of the law applicable to the maintenance to be paid to the less financially secure spouse after divorce. The issue pertains to the definition of the boundary between the scope of recent Regulations (EU) 2016/1103 and 2016/1104, and the scope of Regulation (CE) n. 4/2009 on jurisdiction and applicable law to maintenance obligations. Despite the facts that there is no definition of ‘maintenance obligations’ in EU regulations and that maintenance obligations between spouses should be excluded from the scope of the Regulations 1103 and 1104 in accordance with their Recital 22, it is necessary to focus on the meaning of ‘maintenance obligations’ as a result of the interpretation of the European Court of Justice. In this light, there will be cases in which the maintenance to be paid after divorce should be considered an aspect of ‘the liquidation of the matrimonial property regime’ under the Regulation (EU) 2016/1103 rather than a ‘maintenance obligation’ under Regulation (CE) n. 4/2009.
Claim for maintenance after divorce: legal uncertainty regarding the determination of the applicable law
Francesco Giacomo Viterbo
2019-01-01
Abstract
The analysis focuses on cases that raise the issue of legal uncertainty with regard to the determination of the law applicable to the maintenance to be paid to the less financially secure spouse after divorce. The issue pertains to the definition of the boundary between the scope of recent Regulations (EU) 2016/1103 and 2016/1104, and the scope of Regulation (CE) n. 4/2009 on jurisdiction and applicable law to maintenance obligations. Despite the facts that there is no definition of ‘maintenance obligations’ in EU regulations and that maintenance obligations between spouses should be excluded from the scope of the Regulations 1103 and 1104 in accordance with their Recital 22, it is necessary to focus on the meaning of ‘maintenance obligations’ as a result of the interpretation of the European Court of Justice. In this light, there will be cases in which the maintenance to be paid after divorce should be considered an aspect of ‘the liquidation of the matrimonial property regime’ under the Regulation (EU) 2016/1103 rather than a ‘maintenance obligation’ under Regulation (CE) n. 4/2009.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
