The Impact of the Ground for International Jurisdiction on the Mechanism of Recovery of Family Maintenance

The paper reveals the grounds for international jurisdiction in family maintenance matters under international treaties and the Law of Ukraine “On Private International Law” and explains how the ground for international jurisdiction influences on the mechanism of recovery of family maintenance. It was concluded that under a number of bilateral treaties of Ukraine the jurisdiction in family maintenance matters is granted to the courts of the state where a creditor has his (her) residence. The Law of Ukraine “On Private International Law” stipulates several criteria for granting the jurisdiction in family maintenance matters to Ukrainian courts. Among them are: the choice of Ukrainian courts; the residence of claimant or respondent in Ukraine. However, the decisions of courts, who obtained jurisdiction as the courts of the state where the creditor has his habitual residence or as the courts which were chosen under the choice of court agreement cannot be recognized and enforced in some states because of the reservations to the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance they have made. It was explained that in this case another mechanism, provided by the Convention can be used. It is possible to apply for establishment of a decision in the state where the decision should be recognized and enforced as provided by article 10 (1) (d) of the Convention. Although the existing decision is not recognized as a document which gives an opportunity for enforcement in this case, however, it is recognized as a document which establishes the right of a child for maintenance. This mechanism cannot be used for a spouse maintenance. However, it is possible to apply to the competent body of the requested state for obtaining a spouse maintenance. It was concluded that a decision rendered by a court, whose jurisdiction arose on the ground which is not provided by the Convention can be brought to life through the mechanism of recognition and enforcement if there is another international document which stipulates such recognition and enforcement. Alternatively, in this situation an application provided by article 10 (1) (d) of the Convention can be employe