By Maria Hook (University of Otago)
As we have previously noted on this blog, many areas of private international law benefit from international cooperation and harmonisation. The recovery of child or spousal maintenance is no exception. A person who seeks to recover maintenance from a person in another country may face significant hurdles. They may find, for example, that they are entitled to maintenance in their own country of residence but that a decision to that effect is not recognised or enforceable in the debtor’s country; or they may lack the resources or expertise to bring an application in a (to them) foreign country. The worst-case scenario is that the other party avoids all liability simply because they are located in another country.
In a previous post we shared the news of New Zealand’s signing of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (concluded 23 November 2007, entered into force 1 January 2013) (the Convention). With 43 contracting States (including the European Union, the United Kingdom, Brazil and the United States), the Convention offers a well-established framework to facilitate the cross-border recovery of maintenance. New Zealand has now ratified the Convention and given effect to it by way of an Order in Council under s 215 of the Child Support Act 1991.
The purpose of this post is to provide a brief overview of the main features of this new regime. As between contracting States, it will largely replace the obligations assumed under the United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM) (signed 20 June 1956, entered into force 25 May 1957) and the Commonwealth Scheme. It does not affect the bilateral agreement with Australia on child and spousal maintenance as given effect in Child Support (Reciprocal Agreement with Australia) Order 2000.
What does the Convention do?
The Convention has three main functions. First, it provides for the recognition and enforcement of maintenance decisions of other contracting States. A decision must be recognised and enforced if it falls within one of the six bases of recognition and enforcement set out in Art 20(1). These bases are broad in scope. It is sufficient, for example, that either the respondent or the creditor was habitually resident in the contracting State at the time proceedings were instituted. The obligation to recognise and enforce maintenance decisions is subject only to the narrow exceptions listed in Art 22 (for example, that recognition and enforcement would be manifestly incompatible with public policy).
The effect of these rules is to make maintenance decisions more enforceable as between contracting States. Under New Zealand common law, the only decisions that are generally enforceable in New Zealand are judgments for a fixed sum of money (Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, 2020) at 5.C.3). Administrative decisions are unenforceable, as are decisions for the periodic payment of maintenance. The grounds for recognition and enforcement are more narrowly conceived, too, requiring the respondent’s presence or submission. Similarly, UNCRAM and the Commonwealth Scheme do not apply to administrative decisions and, in fact, UNCRAM does not directly provide for the recognition and enforcement of maintenance at all, focusing instead on cooperation in the establishment of maintenance decisions (at 9.181).
By contrast, the Convention is designed to capture maintenance in all its forms (Art 19), from countries that have a sufficiently close connection to the matter (see Art 20(1)). Not only does this mean that foreign maintenance decisions can more easily be enforced in New Zealand; New Zealand decisions, too, will enjoy more widespread recognition overseas. It is estimated that the Convention will enable recovery of about $7.7 million in outstanding child support payments (Ministry of Foreign Affairs and Trade National Interest Analysis: Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance at ).
The second main function of the Convention is to provide for administrative cooperation between contracting States in the establishment, management, enforcement and collection of maintenance (Chapters II and III). This framework builds and improves on mechanisms that were first introduced under UNCRAM (see Alegría Borrás and Jennifer Degeling Explanatory Report on Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (HccH) at , ), and it replaces UNCRAM insofar as the two Conventions coincide (Art 49). Cooperation takes place through a system of Central Authorities established under the Convention.
An important focus of cooperation is the transmission of applications for maintenance, which makes it easier for claimants to access maintenance in (to them) foreign legal systems. A claimant resident in Country A (the requesting State) can apply through the Central Authority in Country A to obtain a maintenance decision in Country B (the requested State). The Convention does not, however, provide for uniform rules of jurisdiction (see Art 10(3)). This means that it is a matter for the law of Country B whether it has jurisdiction to make a maintenance decision (for example, on the basis that the child or the debtor is resident in the country). The Convention merely restricts proceedings for maintenance where there is an existing decision from a country that is a party to the Convention and the creditor is habitually resident in that country (Art 18).
The third function of the Convention is to ensure that processes for the cross-border recovery of maintenance are accessible, efficient and simple. This means, for example, that foreign maintenance decisions are to be registered or declared enforceable “without delay” (Art 23), and that registration or enforcement does not ordinarily require an application to the court (see Art 23, cf Art 24). In New Zealand this task falls to the Inland Revenue.
Scope: child support and spousal maintenance
The primary focus of the Convention is on child support, and it is in this area that the Convention will have the greatest impact. In addition, New Zealand has opted to extend the entire Convention to spousal maintenance, with the result that all of its features will be available vis-à-vis countries that have done the same (Art 2). Some parts of the Convention are automatically applicable to spousal maintenance (all parts except for Chs II and III on cooperation and establishment of a system of Central Authorities, which, however, apply to applications for recognition and/or enforcement that form part of a claim for maintenance arising from a parent-child relationship (Art 2(1)(b)).
The Convention also gives States the option to extend the Convention to maintenance obligations arising from other family relationships (Art 2(3)). New Zealand has not entered a declaration to that effect even though, under New Zealand law, maintenance is available outside of spousal and parent-child relationships (ie civil unions and de facto relationships). This omission may in part be explained by the reluctance of other contracting States. The European Union, for example, has refrained from extending the Convention to other family relationships, undertaking instead to “examine the possibility” of doing so within seven years (compare Brazil, which has extended the Convention to obligations to provide maintenance “arising from collateral kinship, direct kinship, marriage or affinity, including, in particular, obligations in respect of vulnerable persons”). Given that any extension would only become effective in the case of matching declarations, there would have been limited immediate practical benefit in New Zealand extending the scope of the Convention to civil unions or de facto relationships. Be that as it may, it is a shame that New Zealand did not take the opportunity to lead the way by being one of the first countries to extend the Convention in this manner, which might have provided an incentive for other countries to follow suit.
Implementation of the Convention
The Convention is given effect by the Child Support (Reciprocal Agreement with Hague Convention Countries) Order 2021, made under s 215 of the Child Support Act 1991. The Order achieves this largely by providing that the definitions of “child support” and “domestic maintenance” in s 2(1) of the Act have effect as if they included “payments required to be made under administrative assessments or court orders made by a contracting State” (see Schedule 2).
It has already been pointed out that the Convention does not include uniform rules of jurisdiction. In other words, the question whether New Zealand authorities have the power to make a maintenance decision continues to be determined under New Zealand law. Sections 5(1)(d) and 6(1)(b) of the Act set out the jurisdictional requirements for making a child support assessment. In particular, a child will only qualify for child support if they are either a New Zealand citizen or ordinarily resident in New Zealand, and child support may only be sought from a parent “who is a New Zealand citizen or is ordinarily resident in New Zealand”, or from a parent who is ordinarily resident in a country with which New Zealand has entered into a reciprocal agreement for enforcement of child support”. The Order purports to extend these grounds of jurisdiction, by stating that ss 5(1)(d) and 6(1)(b) of the Act have effect as if they included a child and parent who are “habitually resident in a contracting State”. Given that the Convention itself does not provide for uniform rules of jurisdiction, the rationale for extending ss 5(1)(d) and 6(1)(b) in this way is unclear.