David Hodson on International Family Law: The EU Maintenance Regulation and transitional provision

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Transitional provisions are invariably the least exciting part of any new legislation. Most practitioners keep fingers tightly crossed that by the time they have to refer to the new legislation, events will have moved on and it will be entirely academic. So it would be hoped with the incredibly complex legislation, the EU Maintenance Regulation (MR) in force from 18 June 2011 and replacing Brussels I. Unfortunately it would seem that transitional provisions in Art 75 will be with us for very many years to come. This is because it is sometimes quite a few years after a maintenance order has been made that non-payment occurs and enforcement is required. If that enforcement is in another EU country, the lawyer for the maintenance creditor needs to know what enforcement procedure is available. The transitional provisions of MR will be with us for years.

MR introduces in essence a very simple arrangement for recognition and enforcement of EU maintenance orders and decisions. It is only in the detail that it becomes complex. It is in the procedural implementation that it becomes very complex.

Maintenance orders made in any EU country will now be recognised automatically across the EU. There are some provisions for review of orders made in the UK and Denmark however these are not expected to be dramatic. Maintenance orders made in any EU country apart from the UK and Denmark will be automatically enforceable across the EU without any intervening procedure. Maintenance orders made in the UK and Denmark will be enforceable across the EU with a registration process. The UK and Denmark are the non-applicable law jurisdictions with the slightly elaborated enforcement procedure.

MR applies to maintenance orders made after 18 June 2011 in respect of proceedings commenced after 18 June 2011. It does not automatically apply to orders made before 18 June 2011 or orders made after 18 June 2011 in respect of proceedings commenced before 18 of June 2011. So what happens to them?  They are in several categories:

• For those cases where there were on 18 June 2011 ongoing proceedings abroad for recognition and enforcement, Brussels I and its ancillary procedures still apply. This will be a real headache for practitioners although should be only a relatively limited number of cases. It might be worth stopping those proceedings and starting again if possible.
• All English outgoing maintenance orders either made before 18 June 2011 or made after 18 June 2011 in proceedings commenced before 18 June 2011 are subject to enforcement through the MR registration process. As this is the position anyway for all outgoing English maintenance orders, it does not make any material difference.
• All incoming orders from EU countries where the maintenance orders were before 18 June 2011, or after 18 June 2011 but in proceedings commenced before 18 June 2011, need a registration process before they can be enforced. In other words, the old-style enforcement process which MR was intended to eradicate. They are treated the same as orders from the UK and Denmark, and require enforcement through the registration process. This is important and actually detracts from the intended impact of the MR, simply because, as above, it can sometimes be years before a maintenance order etc is enforced. Therefore maintenance orders made in any EU state before 18 June 2011 will still require the registration of enforceability if enforcement is needed many years later.
• Foreign maintenance orders which are already being enforced at 18 June 2011 are not affected by MR.

This is set out in Art 75 and the new PD 34C, in force from 31 October 2011, although I have to say that like most of the Maintenance Regulation and domestic implementation, it is very hard to comprehend. I have been grateful to Tim Amos QC and Gavin Smith for letting me bounce various ideas around in this respect. I have been amazed at how widespread has been the domestic changes brought about by the MR and the consequential domestic rules. Reading through the Jordans Red Book annual supplement highlights how many pieces of domestic legislation have been amended to take account of the jurisdictional requirements of MR and other domestic changes.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new forthcoming major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.