THE ENFORCEMENT OF MAINTENANCE DECISIONS IN THE EU : REQUIEM FOR PUBLIC POLICY?

The Regulation No 4/2009 abolishes the exequatur for the decisions given in a Member State bound by the 2007 Hague Protocol on the law applicable to maintenance obligations. As a consequence, the public policy exception is no longer available, in order to refuse the recognition of a decision based on family patterns which differ from the traditional ones and are unknown in the requested State. However, the claim of maintenance may sometimes be rejected under Art. 6 of the 2007 Hague Protocol, which allows for a ̔special defence̕ against maintenance claims between same sex partners. This ̔defence̕, although it is not ascribed to the mechanism of public policy, as it is obviously raised by the defendant, is meant to pursue the same goal. Conversely, an exequatur is still necessary for decisions given in a Member State not bound by the 2007 Hague Protocol (UK and Denmark), as well as for decisions given in a State party to the 1973 Hague Maintenance Enforcement Convention (and in the future to the 2007 Hague Child Support Convention). Family law has undergone a radical change over the last twenty years or so. The recent decades have seen the rise of new legal institutions affording a measure of legal protection to couples outside traditional marriage (registered partnerships, same-sex marriages, etc.) as well as to the new frontiers of the establishment of parenthood (surrogacy and adoption by an unmarried person). As a result, the landscape of family law is extremely various. There are States, such as Italy, that do not recognize those institutions as possible sources of maintenance obligations. How these countries cope the issue of the recognition of decisions founded on unknown family patterns? Public policy is actually weakening? In this respect does the application of a possible common concept of European public policy play any specific role?