Maintenance/support—also known as obligation alimentaire (maintenance obligation)—is financial compensation paid, normally as the result of a court ruling, to a person who is dependent upon the payer for subsistence. It is the legal requirement to provide for a person in absolute need of support to live.
Anyone entitled to maintenance which has not been paid (a partner, older or younger relative) may apply for an advance on maintenance to recover unpaid maintenance, and ensure they will be paid regularly in the future. However, for the application to be admissible, the maintenance creditor must be in financial difficulties and must have personally exhausted all legal options to obtain their entitlement.
The amount of maintenance set by the decision of the courts is then paid and recovered on demand, in certain conditions, by the National Solidarity Fund (Fonds national de solidarité - FNS). If an advance is granted, the FNS claims the sums paid back from the maintenance debtor, heirs, donees and legatees of creditors or debtors, plus 10 % of the costs incurred in recovering the debt. The debtor's or creditor's property is mortgaged in the name of the FNS to guarantee repayment.
Who is concerned
Spouses or direct relatives—ascending or descendants, such as a father, mother, child or grandchild—(maintenance creditors) to whom a court decision has awarded maintenance to be paid by a third party (the maintenance debtor).
For the payment application to be considered, the creditor must:
- be legally domiciled in Luxembourg, and either they or their legal representative must have been resident there for at least the past 5 years;
- be entitled to maintenance set by an enforceable judicial decision in Luxembourg;
- not have been able to obtain payment, either in full or in part, through private means of enforcement. The application is also accepted when ordinary means of enforcement appear doomed to failure, or when the debtor is a foreign resident;
- be in financial difficulty.
How to proceed
Filing the application
Applications for payment of maintenance are to be addressed to the President of the FNS using a downloadable form, which can also be obtained from the FNS or communal secretaries' offices.
The application is to be sent to the FNS by registered post with acknowledgement of receipt; alternatively, it may be submitted directly at the FNS offices.
The application is deemed to have been filed on the date of posting of the registered letter, or on the date of submission at the FNS, provided it is properly filled in and accompanied by all necessary supporting documents. If all of the necessary documents are not attached, the application will be deemed to have been filed on the date on which the last of these documents reaches the FNS.
For the application to be admissible, the applicant must send the FNS the following documents:
- a copy of the judgement setting the amount and frequency of maintenance or, where applicable, an exemplified copy thereof;
- a statement from the clerk of the court in the competent jurisdiction, or a bailiff, stating that private means of enforcement to recover the maintenance have been unsuccessful (e.g. after an attempt to enforce an attachment of earnings).
If such a statement cannot be produced, the creditor may produce any other documents proving that they have been unable to recover the debt by private means of enforcement.
As far as possible, the creditor must also mention, in the form, information regarding the debtor, including their identity, address (or last known address), occupation, name and address of their employer, and the source of their income, as well as the nature and value of their assets.
The FNS may ask the creditor to produce a certificate of existence for the debtor before each payment, attesting that the person is still alive.
If required, an investigation into the parties involved may be requested by the FNS.
Acceptance of the application
When the application is either fully or partly accepted, the President of the FNS notifies the maintenance creditor of that outcome by post, specifying the conditions and modes of payment. The advance first falls due on the 1st of the month following the date of the application.
The FNS may also cover the amounts of unpaid maintenance over the 6 months prior to the filing date of the application.
Those amounts may be no greater than the limits established by the legislation pertaining to the right to the social inclusion income (REVIS).
In the interval between the acceptance of the application and the cessation of FNS payments, the creditor may not take any action against the debtor to recover the monies owing. For this reason, and to allow the FNS to take action against the maintenance debtor to recover its disbursements, the creditor must send the FNS the execution copy of the judgement setting the maintenance (the execution copy of the judgement is a document issued by the clerk of the court that handed down the decision, containing the enforcement order; it is issued at the request of one of the parties in dispute).
The FNS notifies the debtor, by registered letter, that it has upheld the application for payment of maintenance. This notice sets out the sums relating to the payment and recovery of the money, and notifies the debtor that the maintenance payment should be made directly to the FNS, in accordance with the terms of payment outlined therein.
Cessation of FNS payments
The FNS ceases to pay the maintenance on behalf of the debtor if:
- the debtor dies;
- the maintenance creditor waives their entitlement to maintenance;
- the maintenance creditor moves abroad.
Denial of the application and appeals
Should the President of the FNS decide to deny the advance on maintenance, or to cease maintenance payments, the creditor will be notified accordingly by registered letter. In such a case, the notification must specify:
- the reasons for the denial;
- the possible avenues of appeal against the decision;
- the time period within which any appeal must be lodged;
- the authority to whom the appeal should be addressed;
- the method for presenting the appeal.
Appeals against decisions relating to the application for payment fall within the jurisdiction of the Magistrate's Court of the creditor's residence. Such appeals must be lodged within 40 days of the notification of the FNS President's decision.
Instalments of maintenance lapse after a period of 5 years. Beyond that point, the maintenance debtor may no longer be asked to pay the prescribed monthly amount.
Forms / Online services
Who to contact
Cost-of-living Benefit Service8-10, rue de la Fonderie
Phone : (+352) 49 10 81 999 (only in the morning)
Magistrate's Court of Diekirch8-10, Place Joseph Bech
Phone : (+352) 80 88 53-1Fax : (+352) 80 41 90
Magistrate's Court of Esch-sur-AlzettePlace Norbert Metz
Phone : (+352) 530-529Fax : (+352) 530 529 304
Magistrate's Court of LuxembourgCité Judiciaire - Plateau du Saint-Esprit - Building JP
Phone : (+352) 47 59 81-1Fax : (+352) 46 54 34