We are very grateful to the generous attorneys who have taken time to provide us with summaries for their countries. Please keep them in mind should you need legal assistance where they practice.
Australia
There are two different child support schemes operating in Australia. The first applies where parents separated before 1 October 1989. This scheme is governed by the Family Law Act 1975 and is based upon agreement by the parties or Court Order resulting from a hearing. Amounts payable are referred to as "child maintenance."
The second applies where parents separated or children were born after 1 October 1989. This scheme is based upon a formula under the Child Support (Assessment) Act 1989 ("the Act"). The assessment can only be varied by agreement, review or court order. Amounts payable are referred to as "child support".
The Child Support (Registration and Collection) Act 1988 established the Child Support Agency ("CSA") of the Australian Taxation Office. This enabled more efficient collection of child support and maintenance as the CSA has access to income tax returns and can sequester tax refund cheques.
Child support is calculated using the following formula:
1. Take the gross taxable income of liable parent.
2. Deduct an amount for living expenses, which is fixed by the Act, of the liable parent and any children (natural or adopted but not stepchildren) living with them. From 1 July 1999 the amount for a liable parent with no children living with them is $10,219.
3. Look at the custodial parent’s income. If it is over the average weekly earnings, which is fixed by the Act,
(from 1 July 1999 $31,351), the liable parent’s income is reduced.
4. Multiply the liable parent’s income by one of the following percentages:
1 child 18%
2 children 27%
3 children 32%
4 children 34%
5 or more children 36%
This basic formula is modified to take into account shared
parenting and low or high income earners.
Parties can negotiate and register Child Support Agreements, which partly or wholly replace the assessed amount. If the custodial parent is in receipt of an income tested pension or benefit the registration is subject to approval by Centrelink.
An example of use of the basic formula is:
Custodial parents income: $15,000 (less than average weekly earnings therefore disregarded)
Non custodial parent's income: $50,000
Less exempt income: $10,219
CHILD SUPPORT INCOME: $39,781
Children in custodial parent's care: 2 – therefore 27%
= $39,781 x 27% = $10,740.87 or $206.55 per week.
An Overseas maintenance order can be registered in Australia if it is from a reciprocating jurisdiction.
The following are reciprocating jurisdictions. AustriaTo register the Order, a certified copy must be sent to the Secretary to the Attorney General's Department.
If you have a case you need help with, please contact DCH Legal Group at dch@dch.com.au .
The most important laws regarding child support are the Constitution, the Minors’ Code and the Family Code. The Constitution states that all marriage, family and maternity are under the State’s protection, as well as the physical, mental and moral health of infancy. The Minor Code grants social priority to minority, being an obligation for the family, community and the State to ensure minors’ rights to life, health, family, identity and nationality, feeding, education, dignity, respect, liberty, recreation and work protection. It is also a priority to protect minority from any physical, social, moral and psychological risk, caused by negligence, discrimination, abuse, cruelty, oppression and aggression, in which case ordinary jurisdiction will be applied.
Any act of violence performed by parents, tutors, third people and/or institutions, through abuse, action, omission or suppression, that attempts the minors rights: violence that could cause damage or prejudice in their physical, mental or emotional health, is considered mistreatment.
A child is considered to be mistreated when:Dangerous and unhealthy jobs, as well as jobs that attempt dignity are prohibited for minors. Any person, specially school directors and teachers, who detect any sign of mistreatment, violence, exploitation, abuse, possession or consumption of alcoholic beverages or drugs, is forced to . inform immediately this situations to parents or tutors to the Childhood and Adolescence Public Defender.
The sale of the following to minors is prohibited:
1. Weapons, munitions and explosives
2. Alcoholic beverages
3. Drugs and other products of which its components constitute danger or may
cause physical or psychic dependence
4. Fireworks and similar devices that may cause physical damage
The Family Code regulates Family Support as an institution that provides all the indispensable aspects of sustention, home, clothing and medical attention.
In connection with enforcement of decisions or judgments rendered outside Bolivia, the Code of Civil Procedure states that International Treaties apply; in case of lack of a Treaty, reciprocity with the country where the decision is ruled applies. If the resolution comes from a country that does not enforce Bolivian decisions, it will not have any force in Bolivia.
If none of the three cases above mentioned is applicable, the foreign judgments
can be enforced if they comply with the following requisites:
1. That the judgment would have been dictated as a consequence of a personal action or a real
action performed over a movable property transported to Bolivia during or after the trial litigated outside.
2. That the condemned person, with domicile in Bolivia has been legally notified.
3. That the obligation object of the trial is valid according to Bolivian
law.
4. That the resolution does not contain provisions contrary to public
order.
5. That the resolution was passed in accordance with the country’s law where
it was dictated.
6. That it complies with necessary requisites to be considered
as resolution in the place where it has been dictated and with the conditions of authenticity required
by local law.
7. That it is not incompatible with other resolutions pronounced before or simultaneously by a Bolivian court.
If you have a case you need help with, please contact M. Carolina Aguirre U. at faguirre@caoba.entelnet.bo .
Several steps are required for a judgement to be entered in Italy. First, according to the Hague Convention, they must serve the defendant in both Italian and the language of the country originating the order. Also, it is not permitted for a person to represent themselves in court. They MUST hire an attorney.
According to Attorney Perrone, the following is a brief summary of the law concerning child support:
1 - The order must be a sentence from a Court of Justice or similar;
(In most states, this is the Family Courts Division;
in other countries this could be a higher court, or even a
magistrate's office.)
2 - The foreign Court must be competent to know the case;-
3 - The parties must have the possibility to defend themselves
equally;- (If the defendant did not have the proper notice
to defend himself, then the Italian courts will not recognize
the order.)
4 - The sentence/order must be in the final state, with no
possibility of changes;- (It cannot be a temporary order,
it must
be the final judgement.)
5 - The sentence must not be against another one between the same
parties and for the same situation made by Italian Courts;
- (If an order was issued in Italy, another court cannot
override it.)
6 - It is also important there is not an order between the same
parties and for the same situation made by Italian Courts;
-(In other words, you can not have an order in Italy and then
decide to go to another place of residence outside of Italy
and have another order issued.)
7 - The sentence must not be against internal Italian laws called "Ordine Pubblico Interno" (internal
public order laws), something similar general Italian laws.- (The foreign
order
must comply with the Italian laws.)
There is no difference between resident or citizen. It is only a matter to choose the Court which can hear the case (for ex: Roma or Milano). If the non custodial parent does not recognize the order, they can be brought before a Judge to establish the responsibility. This is called "execute civil process".
If you have a case which you would like to persue in Italy, please contact Attorney Perrone at marcello.perrone@libero.it .
PHILIPPINES - Provided by ATTY. MARIA CLARA B. TANKEH-ASUNCION www.asuncionlaw.com
Support is defined under the Family Code of the Philippines (1988) as follows: Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.
As enunciated in the Family Code, support is an obligation that arises from family relationship and enumerates those entitled to be supported as follows:
Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:
(1) The spouses;The properties liable for the support of children are as follows:
1. The support for the common children of both spouses shall be taken from the absolute community or conjugal property.During the proceedings for legal separation, annulment of marriage or declaration of nullity of marriage, child support pendente lite shall be taken from the absolute community property or conjugal property.
The amount of support shall be in proportion to the
a) Resources or means of the giver; and,Support can be reduced or increased proportionately, according to the reduction or increase of the necessities of recipient and the resources or means of the person obliged to furnish the same.
Therefore, an order for support is consequently subject to modification and never final. A petition for support is never terminated.
The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.
The right to receive support and any money or property obtained as such support are not subject to attachment or execution by creditors because they are essential to the life of the person entitled to support. But support in arrears is not exempt from the attachment or execution as the reason for such exemption no longer exists.
Provisional Remedy for an Action for Support Pendente Lite
A verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof.
A copy of the application and all supporting documents shall be served upon the adverse . party, who shall have five (5) days to comment thereon.
After the comment is filed, the application shall be set for hearing not more than three (3) days thereafter.
After hearing, the court shall provisionally make an order as justice and equity may require. If the application is granted, the court shall fix the amount of money to be provisionally paid taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support.
If the adverse party fails to comply with an order granting support pendent lite, the court shall issue an order of execution against him, without prejudice to his liability for contempt. (Rule 61, Rules of Court.)
Effect of Foreign Judgments or Final Orders:
The effect of a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order, is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order
is presumptive evidence of a right as between the parties and their successors in
interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistakes of law or fact. (Section 48, Rule 39, Rules of Court.)
If you have a case which you would like to persue in the Philippines, please contact Attorney Tankeh-Asuncion at asuncion@glinesnx.com.ph.
SCOTLAND - Written by Karen Bruce Lockhart, Partner, Brodies, W. S.
Since 5th April 1993 Child Support in Scotland has been dealt with by a Government Agency called the Child Support Agency (the "CSA"). It has not been a success as the criteria used are far too complicated to the extent that in order to work out the figures properly it is, for instance, necessary to know such details as the capital and interest elements of mortgage repayments for both parents. The CSA does not have the staff to deal with the volume of work. The result has been that the CSA is completely swamped and unable to cope. It is not unknown for some assessments to take over five years to be carried out. In the meantime, the parent who could have previously applied to the Court for an award of maintenance has no other means of obtaining any Child Support from the non paying parent.
It is the Government's intent to reform and simplify the criteria very shortly. It is however a difficult task to try and find a formula for calculating maintenance which is both easy to process and fair to both parents.
However, at present any application for child support where both parents are resident within the United Kingdom must be made to the Child Support Agency. It is not possible to make any binding agreement to avoid the right of either party to apply to the Agency, although clearly agreements can be made which make it unwise. There is a ceiling on the payments by any one parent of Ł123.65 per week. Above this sum it is possible to apply to the courts for "top up" in special circumstances, for instance school fees: a parent can still apply to the Court for an order that the other parent pays some or all the childs school fees and other educational costs.
A child is a qualifying child for the purpose of the CSA if under 19 and in full time education. A parent is defined as the biological parent. The CSA cannot seek payment of maintenance from a step parent. The courts have no jurisdiction if the child and its parents come within the definiton in the Act.
If the child does not come within the definition, eg: one parent is resident abroad, or the child is over 19, then the ordinary Scottish jurisdiction rules apply and any court which has jurisdiction over the pursuer (plaintiff) or defender (defendant) can deal with child support (called aliment in Scotland).
The criteria for aliment are laid down in the Family Law (Scotland) Act 1985. The court must have regard to the needs and resources of the parties, the earning capacities of the parties (NB not incomes) and generally to all the circumstances of the case. Aliment is owed to the child by a parent or a person who has accepted the child as a member of his family - bringing step parents in to the equation - while the child is under 18 or under 25 and in full time education. An application for aliment may be made by the child, a parent or guardian, or person with whom a child lives or who is seeking a residence order and an order can be made for a definite or indefinite period , can be for occasional or special payment, for education etc., and can be backdated. An agreement purporting to exclude future liability for aliment or to restrict it is of no effect unless it was fair and reasonable in all the circumstances when entered into. Any agreement in regard to aliment can be altered by the court in a change of circumstances.
If you have a case which you would like to persue in Scotland, please contact Attorney Lockhart at mailbox@brodies.co.uk .
In our country we respect a large number of legislative acts protecting children, but also the international agreements of this area. The constitution of Slovak Republic in the first article settled that the International agreements ratified and assured upon the legislative act, are generally legally binding and they are preferential before acts, when they safeguard the larger extent of fundamental rights and liberties than our laws. This legally regulation provides compatibility of the Slovak legal order with the international treaties, conventions and agreements.
It´s needfull to mention the most important international treaties accepted by SR, which are from the objective area:
Generally Declaration of the Human Rights
Treaty of the Child´s Rights
The Constitution Act No.23/1991 Coll., by which the Bill of the Fundamental Rights and Liberties is executed
Declaration of the Child´s Rights
The International Treaty of the Suppresion of the Trade with the Women and Children
The Treaty of the Education of the Children in the Ideals of Piece, Mutual Regard and Understanding Among the Nations
Of course, that other treaties about e.g. the least age of children, in which they can work in various areas of economy, about night-work of children, about collecting alimony and e.t.c. are accepted.
The bipartite agreements whithin the SR and other states about legal aid and legal relations in civil, matrimonial and criminally matters are very important too. In the first place within the domestic legislative acts there is:
and a large number of others acts, for example social ones.
According to the respecting and enforcement of the foreign judgments it is needfull to go through the provision of § 63 and followings of the Act on Private and Procedural International Law. Following to the § 63 the foreign judgments (in civil, matrimonial, labour matters and in other similar relations with international element), such as the foreign agreed judgments and the foreign notarial letters in this matters are efficient in Slovak republic only if they are genuine and valid upon the probate of competent foreign authority and if they are recognized of our bodies. Some kind of decisions, which are specified in the § 64 a) - e), cannot be recognized either enforced in SR.
The recognization of the foreign judgments in property relations is not mentioned in the special act, in actual they are respected as Slovak decisions. The foreign judgments can be enforced only if the Slovak court orders their enforcement. Genuide and valid foreign judgments in marital matters and in the matters of determination of the paternity, if only one of the parties in despute is Slovak citizen, and genuide and valid foreign judgments in adoptions of the child who is Slovak citizen, are recognized in Slovak republic if there is a specific decision of the Supreme Court of Slovak republic in this case and if this foreign judgement doesn´t set the Act on Private and Procedural International Law at defiance. This foreign judgment can be recognized only when the subject matter of the objective act was founded by the way which is consistent to the provisions of the Slovak law. The foreign judgments have the same legal effects as the Slovak genuide and valid decisions without any other needful procedure but if only all those participating were in peremptory time the citizents of the state which made the objective decision. The second condition is that this judgment doesn´t set the public order at defiance.
If you have a case which you would like to persue in the Slovak Republic, please contact Dr. Zdenka Bencíková at kovacova@aliancia.sk.
