Often, a court decision or an agreement that establishes alimony issued in Portugal (for children or ex-spouses) must be enforced in a foreign country where the debtor resides or is located. The first step in collecting alimony abroad should, therefore, be to determine whether the decision is recognized and declared enforceable in the foreign country. This happens automatically, for example, in most European Union countries.
For other countries, it will be necessary to have the foreign judgment or agreement reviewed and confirmed in Portugal. Only after this review can maintenance payments owed to children or ex-spouses be collected coercively.
Enforcement in European Union countries of spousal and child maintenance set in Portugal
In order to facilitate the enforcement of spousal and children’s maintenance after divorce within the European Community, Council Regulation 4/2009 implemented a series of measures to enhance cooperation among Member States. Inspired by the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, of which the European Union is a signatory. Article 49 of this Regulation requires all Member States to establish a Central Authority to promote cooperation between states in this and other matters.
These authorities are supposed to provide assistance to both creditors and debtors of alimony to enable them to invoke their right to alimony and exchange information with the purpose of locating debtors and identifying their income and assets, serving as the liaison between the competent authorities of the Member States involved.
In our country, this authority is the Directorate-General for Administration of Justice (DGAJ), and if the applicant resides in Portugal, the request must be made using a specific form, accompanied by the judgment that established the alimony obligation and other identifying documents.
The DGAJ is competent to receive requests coming from abroad (in which they must try to locate the debtor at the specified address and attempt an amicable solution) and also in cases where the debtor resides abroad. In the latter case, the creditor residing in Portugal who wishes to collect alimony in another Member State (where the debtor is a resident) must submit the request to the DGAJ.
Subsequently, the DGAJ forwards the request to the Central Authority of the country where the debtor of the alimony resides or is located, which has 30 days to provide information on the initial measures already taken.
After unsuccessful attempts to obtain voluntary payment of the alimony obligation, the Central Authority of the debtor’s country of residence will undertake the necessary actions for the coercive collection of the outstanding alimony, which will be governed by that country’s law.
Therefore, the role of the DGAJ is limited to issuing a summary of the court decision that established the alimony and instructing the request for the execution of the decision with the Central Authority of the country where the debtor resides. From this point onward, the internal law of that country will be applicable to the execution.
Enforcement in third countries of maintenance set in Portugal
When the debtor is located in a country that is not a European Union Member State, but rather in one of the countries that are signatories to the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, such as Brazil or the United States of America, the procedure for collecting alimony from Portugal is as explained earlier. The procedure is carried out through the DGAJ, which cooperates with the Central Authority of the signatory country where the debtor is located, and the enforcement process is governed by that country’s law. However, this Convention and procedure are only applicable to alimony owed to children under the age of 21. As for alimony owed to ex-spouses, only some of the rules of this Convention will apply, and it is no longer possible, for example, to use the procedure that starts with the DGAJ, as explained above.
In these cases, one can resort to the mechanisms of the 1956 New York Convention on the Recovery of Maintenance, which, however, have a substantially narrower scope. Some of the signatory countries of this Convention include Brazil, Australia, Switzerland, and Ukraine.
When the debtor of alimony is located in third countries that are not members of the European Union or signatories to the mentioned conventions, the alimony creditor will have no alternative but to find a local attorney and file a lawsuit there.