Navigation path

menu starting dummy link

Page navigation

menu ending dummy link

Maintenance claims - Luxembourg

TABLE OF CONTENTS

European Judicial Network in civil and commercial matters

1 What do the concepts “maintenance” and “maintenance obligation” mean in practical terms? Which persons have to pay a maintenance allowance to another person?

The rule stating that ‘maintenance is not designed to cover past claims’ means that maintenance is intended to cover present and future needs, not to reimburse past expenses. This rule has the legal value of a simple presumption; that is, the rule may be disregarded if the creditor furnishes proof either that he/she has had to incur debts to be able to support himself/herself or that he/she has not remained inactive, or has been unable to act.

Maintenance cannot be offset unless the claim it is to be offset against is also a maintenance claim.

2 Up to what age can a child benefit from a maintenance allowance? Are there different rules for maintenance concerning minors and adults?

3 Should I apply to a competent authority or a court to obtain maintenance? What are the main elements of this procedure?

The applicant must in principle submit a claim for maintenance to the Justice of the Peace Court (Justice de Paix). If the maintenance claim is connected with divorce or legal separation proceedings, the District Court (Tribunal d'arrondissement) deciding on the application for divorce or legal separation also decides on the claim for maintenance.

4 Can a request be made on behalf of a relative (if yes, what grade), or a child?

In cases of tutelle (guardianship) or curatelle (curatorship), the guardian (tuteur) or curator (curateur) may make an application on behalf of a parent or an under-age child.

Parent(s) with custody of an under-age child may make an application on behalf of that child.

The under-age child does not have legal personality and does not have the capacity to make an application himself/herself.

5 If I plan to bring the case to court, how do I know which court has jurisdiction?

For claims for the payment or revision of the maintenance allowance, the applicant can at his/her discretion apply to either the court of the place of his/her own domicile or the court of the place of domicile of the defendant.

6 As an applicant, do I have to go through an intermediary to bring the case to court (e.g. a lawyer, central or local authority, etc.)? If not, which procedures apply?

If the case does not involve proceedings for divorce or legal separation, the applicant can apply to the Justice of the Peace Court by means of a summons, which must be served upon the opposing party by a bailiff. The parties to the dispute are exempted from the need to go through a lawyer.

If the maintenance allowance is claimed in the course of proceedings for divorce or legal separation, the District Court is applied to by means of a summons, which must be served on the opposing party by a bailiff. The parties to the dispute must go through a lawyer.

In any case, the applicant must submit to the judge all the documents that give evidence of his/her needs, such as salary statements, a non-taxability declaration, an unemployment certificate or a certificate attesting to a long illness, proof of rent, dependent children, maintenance and education costs, loans, etc.

7 Do I have to pay fees to bring a case to court? If so, how much are they likely to be? If my financial means are insufficient, can I obtain legal aid to cover the costs of the procedure?

Among the costs to be taken into consideration in the event of legal proceedings, we should mention legal costs and the procedure costs which the party that loses the case can be ordered to pay (in whole or in part). Lawyers’ fees may also have to be paid.

Persons whose income is considered to be insufficient according to Luxembourg law can receive legal aid. To receive this aid, they must fill in a questionnaire that can be obtained from the central social work department and send it to the territorially competent president of the bar association, who will take the decision.

Legal aid covers all the costs relating to the court proceedings, procedures or actions for which it is granted. It covers, for example, stamp duties and registration costs, clerks’ fees, lawyers’ fees, bailiffs’ charges and fees, notaries’ expenses and fees, technicians’ expenses and fees, witness allowances, fees of translators and interpreters, fees for certificats de coutume (certificates of foreign law), travelling expenses, charges and fees relating to formalities for registration, mortgage and encumbrance and where necessary costs for publication in newspapers.

8 What kind of maintenance is likely to be granted by the court? How is the amount of maintenance calculated? Can the court's decision be revised, if living costs or family circumstances change? If yes, how (e.g. by means of an automatic indexation system)?

  • Type of maintenance

During the proceedings and following the granting of a divorce or legal separation, the maintenance allowance most often takes the form of a monthly payment. However, it can also take the form of a lump-sum payment consisting either of a sum of money or the abandonment of goods in kind.

As regards contributions towards the child’s maintenance and education, maintenance can take the form of a monthly maintenance payment or, in whole or in part, the direct payment of costs incurred for the child. Finally, it can take the form of a right of use or habitation.

If the party required to provide maintenance proves that he/she cannot afford to pay the maintenance, the court can order this party to take the party to whom he/she is required to pay maintenance into his/her home and to feed and maintain him/her.

  • Assessment of maintenance

There are no reference scales. The amount of the maintenance allowance is calculated according to the financial means of the debtor and the needs of the creditor.

  • Indexation

In order to adapt the maintenance allowance to changes in the cost of living, the judge can, even of his/her own motion, decide that the maintenance will be index-linked according to a legally stipulated variation clause.

  • Revision of the amount

In the event of any change in circumstances, the maintenance allowance can be revised upwards or downwards and even revoked. If the parties fail to reach an agreement, the revocation or reduction is imposed by the court.

The principle of variability of the maintenance allowance according to the needs of the creditor and the financial means of the debtor is a principle of public interest. This principle implies that the judge has the power to change the amount of the maintenance allowance that has been set by agreement between the parties. This right applies not only in the event of a change in the respective situations of the creditor and of the debtor, but also in the absence of any change, if the judge deems that the amount is insufficient or excessive.

9 How and to whom will the maintenance be paid?

During the proceedings and after the granting of a divorce or legal separation, the maintenance allowance is paid to the beneficiary spouse.

The contribution towards the child’s maintenance and education is paid either by one of the parents to the other or to the person to whom the child has been entrusted. If the child has reached the age of majority, the judge can decide or the parents can agree that this contribution will be paid, in whole or in part, to the child.

10 If the person concerned (debtor) doesn't pay voluntarily, what action can be taken in order to force him/her to pay?

The creditor has several means of forcing a recalcitrant debtor to pay the maintenance allowance.

Civil law:

The creditor has several possibilities:

  • Apply to the judge for authorisation to receive, to the exclusion of his/her former spouse and without prejudice to the rights of third parties, his/her earned income, including retirement pensions and annuities, and any other amounts that may be payable by a third party according to the proportions and conditions set by the judge. This decision is subject to revision in the event of a change in circumstances.
  • Apply for the ordinary enforcement measures, i.e. attachment (for example from a bank account), the attachment of movable goods (car, jewellery, etc.) and the attachment of real estate (house, land, etc.).

Criminal law:

The creditor can lodge a criminal complaint for the following offences:

  • Abandonment of family is punishable by a custodial sentence of between one month and one year and a fine of between EUR 251 and 2 500, or only one of these penalties (Article 391 bis of the Criminal Code (Code pénal)). It presupposes that the debtor is avoiding all or some of the maintenance obligations in respect of the creditor imposed on him/her by law, either by refusing to meet these obligations when able to do so or because he/she is unable to meet them through his/her own fault.

This is the case for the maintenance obligations of parents in respect of their children, between spouses and of adoptive parents in respect of adopted children. The offence also covers the order to pay damages for physical or emotional loss caused by the dissolution of the marriage.

Prosecution of the offence is preceded by an officially recorded arraignment handed over to the debtor by a police officer of the Grand Duchy of Luxembourg. If the debtor has no known residence, the arraignment is not required.

  • Fraudulent insolvency is punishable by a custodial sentence of between six months and three years and a fine of between EUR 500 and 12 500, or only one of these penalties (Article 391 ter of the Criminal Code). It presupposes that even before the court decision the debtor organised or aggravated his/her insolvency, either by increasing his/her liabilities or by reducing his/her assets or by concealing some of his/her goods in order to avoid the enforcement of an order issued by a civil court in matters of maintenance.

Under Article 391 ter of the Criminal Code, court decisions and agreements approved by the court on the obligation to provide payments, subsidies or contributions towards the matrimonial costs and the setting of maintenance allowances contained in agreements prior to divorce by mutual consent are considered equivalent to such an order.

The third paragraph does not apply to the offence set out in Article 391 ter of the Criminal Code.

11 Please describe briefly any limitations on enforcement, in particular debtor protection rules and limitation or prescription periods in your enforcement system

Actions to collect arrears of perpetual and life annuities and maintenance allowances are barred by limitation after five years.

12 Is there an organisation or an authority which can help me to recover maintenance?

On the application of the creditor, the National Solidarity Fund (Fonds national de solidarité) can recover any maintenance that is payable to a spouse, an ascendant or a descendant. For the amounts that it must recover, the Fund is subrogated to the rights and guarantees of the creditor for the recovery of his/her maintenance. Once the debtor has been notified of the amounts to be recovered, he/she must hand over these amounts to the President of the National Solidarity Fund.

13 Can organisations (government or private) advance the payment of maintenance wholly or partly in the debtor's place?

The National Solidarity Fund can, subject to certain conditions, pay the maintenance allowance in place of the debtor. The request for payment must be submitted by the creditor or by his/her legal representative to the President of the National Solidarity Fund.

This request is accepted by the President or his delegate if the creditor proves that:

  1. he/she has his/her legal domicile in the country and that he/she or his/her legal representative has lived there for five years;
  2. his/her maintenance allowance has been set by a court decision which is enforceable in the Grand Duchy of Luxembourg;
  3. the total or partial recovery of the maintenance could not be obtained by an effectively exercised enforcement measure under private law;
  4. he/she is in a difficult economic situation.

If condition c) is not met, the request is admitted if recourse to enforcement measures appears to have been unsuccessful or if the debtor resides abroad. Any disputes fall within the jurisdiction of the justice of the peace (juge de paix) of the creditor’s domicile, to whom application can be made within forty days of the notification of the President’s decision.

Creditors can ipso jure receive legal aid. From the time of admission of the request until the cessation of payments by the Fund, the creditor cannot take any action against the debtor to recover his/her maintenance.

14 If I am in this Member State and the debtor has his/her residence in another country:

14.1 Can I obtain the assistance of an authority or private organisation in this Member State?

Pursuant to the New York Convention of 20 June 1956 and 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, an applicant residing in Luxembourg can, if the debtor resides abroad, apply to the Chief Public Prosecutor (Procureur Général d'Etat) to obtain maintenance.

The Chief Public Prosecutor, in his/her capacity as the central authority, will forward the application and the annexed documents to the central authority of the country in which the debtor resides so that the said central authority can help the applicant to obtain payment of the maintenance due.

14.2 If so, how can that authority or private organisation be contacted?

The person entitled to maintenance submits the request to the transmitting authority, i.e. the Chief Public Prosecutor, using the various forms provided under Regulation (EC) No 4/2009.

Procureur Général d’Etat

Cité Judiciaire
Bâtiment CR
L-2080 Luxembourg

15 If I am in another country and the debtor is in this Member State:

15.1 Can I address a request directly to such an authority or private organisation in this Member State?

An applicant who resides in a country other than Luxembourg must apply to the central authority of the country in which he/she resides. He/she cannot directly apply to a Luxembourg organisation or government department.

15.2 If so, how can that authority or private organisation be contacted and what kind of assistance can I receive?

Not applicable.

16 Is this Member State bound by the 2007 Hague Protocol?

Yes.

17 If this Member State is not bound by the 2007 Hague Protocol, which law will be applicable to the maintenance claim according to its private international law rules? What are the corresponding private international law rules?

18 What are the rules on access to justice in cross-border cases within the EU following the structure of Chapter V of the Maintenance Regulation?

In the event of applications under the Regulation, legal aid is entirely free of charge for persons entitled to maintenance aged under 21, irrespective of the provisions of national law.

19 What are the measures adopted by this Member State in order to ensure the functioning of the activities described in Article 51 of the Maintenance Regulation?

In order to enable the central authority to provide the assistance stipulated under Article 51 of the Maintenance Regulation, Luxembourg passed a law on 3 August 2011 on the application of this Regulation, as well as a grand ducal regulation implementing Articles 2 and 3 of said law of 3 August 2011 (Mémorial A No 175 of 12 August 2011).

These legal provisions gave the Chief Public Prosecutor direct access to certain databases.

Related links

Link opens in new windowLegilux


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 09/05/2017