Jäger-Maillet on the Cross-border Recovery of Family Maintenance by Public Bodies
Isabelle Jäger-Maillet, a family lawyer who also serves as the International Coordinator for the German Institute for Youth Services and Family Law in Heidelberg (DIJuF), kindly provided a presentation of her dissertation titled Fortentwicklung des grenzüberschreitenden Unterhaltsvorschussregresses, on the improvement of maintenance recovery by public bodies, recently published by Wolfgang Metzner Verlag.
In European countries, advance maintenance payments are a widespread and effective social measure to fight child poverty. As subsidiary benefits, these measures are generally not financed solely by public contributions, but also by the defaulting maintenance debtor being required to reimburse the paid benefits to the public body.
The PhD-thesis, which was submitted to Düsseldorf University in April 2024 and published in August 2025, deals with the cross-border recovery of maintenance reimbursement obligations by German public bodies.
In the first section, the thesis identifies the challenges German Maintenance Advance Agencies encounter when seeking reimbursement of the benefits they disbursed pursuant to the current legal framework.
With regard to national law, the German Advance Maintenance Payments Act (Unterhaltsvorschussgesetz, or UVG) is identified as a hurdle to the cross-border recovery of claims because it does not take enough into consideration, and address, the particularities of the international legal framework. Compared to other systems, the German UVG is relatively generous for beneficiaries but restrictive in terms of recovery. On one hand, benefits are granted without the need for an existing maintenance order for the child. On the other hand, the UVG has only weak provisions requiring beneficiaries to support the recovery efforts.
As to international law, the thesis emphasizes the restraint evident in international instruments on conflict of laws and procedural law – which is guided by concerns of debtor protection. It points out that the different connecting factors in Article 10 and Article 11(f) of the 2007 Hague Protocol on the law applicable to maintenance obligations lead to complex delimitation questions, such as“Which aspects exactly fall under the term “extent” of the reimbursement obligation?”.
This is especially the case when the law to which the public body is subjected and the law applicable to the maintenance obligation do not coincide (which is not uncommon). In terms of procedural law, the thesis notes as significant progress the equal treatment of public bodies and individuals for the purpose of declarations of enforceability and enforcement, as well as the possibility for these procedures to be supported by Central Authorities according to Article 64 of Regulation No 4/2009 on maintenance obligations and Article 36 of the 2007 Child Support Convention. However, the establishment of a maintenance order is still considered to be difficult in cases in which the legal framework of State A does not allow proceedings to be filed in the state where the public body is based, or, when the legal framework of State B, which has been requested to enforce maintenance, does not recognize creditor-based jurisdiction. These jurisdictional [stalemates, deadlocks, etc] are often characterized by high costs of proceedings, little to no support from Central Authorities, lack of experience of program personnel and uncertainty regarding the applicable substantive law.
In the second section, possible solutions to remedy the issues mentioned above and to improve the national and international legal framework are developed.
At the core of reflections regarding the national German law is the need to get beneficiaries more closely involved in the recovery process – at least as long as the international legal framework grants them a more favorable legal position than public bodies. Some of the proposed measures can immediately be realized through better application of existing legislation while other measures could be achieved through minor legislative amendments.
The adjustments suggested for the international legal framework should be considered a longer-term process. They aim to simplify the application of the law in such a way that it better meets the special needs of public bodies for the efficient processing of a large number of cases, without compromising the goal of protecting the debtor’s interests.
In the area of procedural law, it is suggested that a creditor-based jurisdiction be established at the seat of the public body, which would be in line with the privilege granted to individuals. It is simply not justified that the statutory substitution (change of creditor) should result in the maintenance debtor only being able to be sued at his place of residence or at the child’s place of residence (which is not always in Germany).
With regard to conflict of laws, the proposals seek to more clearly link the calculation of reimbursement obligations to the (maintenance) law governing the public body. Admittedly, this solution may result in a certain dissociation of the reimbursement obligation from the maintenance obligation when the maintenance obligation is subjected to foreign law. However, this should not be considered prejudicial because this solution ultimately allows the particularities of maintenance recovery by public bodies to be taken into account without jeopardizing the concern for protecting the debtor’s interests. The calculation remains pursuant to maintenance law and Article 14 of the 2007 Hague Protocol still applies.
Finally, the thesis is focused upon legal policy perspectives and is primarily addressed to academics and legislators. However, section 1 also deals in detail with challenging issues of the daily practice of German Advance Maintenance agencies, such as (a) how to deal with maintenance waivers declared abroad, (b) the binding (or non-binding) effect of foreign maintenance orders for the public bodies as legal successor of the child and (c) which law is applicable when a public body applies for the establishment of a maintenance order abroad (see, Article 4(3) of the Hague Protocol). This makes the book particularly suitable as a working aid for maintenance agency case workers.
The table of contents and an extract of the book are accessible through the publisher’s website.