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David Hodson on International Family Law: Domestic regulations for the new EU Maintenance Regulation

Date:20 JUN 2011

David HodsonThe EU Maintenance Regulation came into force on Saturday, 18 of June 2011. Only five days earlier, Monday, 13 June, 2011, the domestic regulations for its impact on domestic law was laid before Parliament. On any basis, very short notice. On any basis, the EU Regulation has required substantial changes to many pieces of primary and secondary legislation. It has been a complicated statutory instrument to draft.

It is the Civil Jurisdiction and Judgements (Maintenance) Regulations 2011 No 1484. Before turning to these new domestic regulations, a brief background to the EU Maintenance Regulation (4/2009).

This has replaced Brussels I. It covers what is known as maintenance although this has a much wider definition than pure periodical payments; spousal or child. Maintenance has been interpreted by the European Court of Justice as akin to "needs". It would therefore cover transfers of real property for the accommodation needs of one party and a lump sum constituting capitalised maintenance. Whereas Brussels I covered a wide ambit of civil litigation, the EU Maintenance Regulation is exclusively family law. It has had a troubled progress as the EU in Brussels tried to use it to impose applicable law on countries such as the UK which only ever applies its own local law. Fortunately a compromise was reached and the UK has opted in to the parts of the Maintenance Regulation which do not cover applicable law.

Like Brussels I, it facilitates the recognition and enforcement across Europe of maintenance orders made in any part of the EU. It covers child support assessments so non-paying fathers will not now be able to escape to the continent. The enforcement measures can be mostly as if the order had been made locally where the enforcement will occur. It is operated through the existing central authorities in each country. There are the normal narrow restrictions on refusal to recognise orders made. The jurisdictional arrangements are similar but in some cases crucially different in practice. In many ways it is a very welcome piece of cross-border legislation. But it has some fundamental problems.

The first to issue principle applies as in Brussels II. This will have a major impact because it will apply not only to previous court proceedings for maintenance but also to any agreements dealing with maintenance or to child support assessments. Moreover any related proceedings should be transferred to the jurisdiction dealing with maintenance. The consequence is that even though a party may have issued a divorce, with Form A, first in time, if there had been any prior maintenance orders, agreements or assessments in another country, that country should deal with the maintenance dispute. It will not be the country dealing with the divorce even though that may include the normal prayers for all financial orders. The Maintenance Regulation has immediately brought to these shores the separation of financial matters on divorce between maintenance and non-maintenance, with the real possibility that they may be dealt with in separate countries with separate procedures, separate disclosure obligations and very separate outcomes.

Just as in March 2001 Brussels II brought us the highly unexpected race to issue, the Maintenance Regulation has brought us from this past Saturday the separation of resolution of maintenance and non-maintenance.

Moreover this does not just apply when there are prior proceedings for maintenance in another EU country, separate to a divorce. It also applies when there has been an agreement between the parties, quite possibly premarital and quite probably without independent legal advice or disclosure and therefore the parties being aware of the implications for a subsequent divorce. In these circumstances it would seem England has to allow the maintenance element of the ancillary relief claims, as they were known pre-April, to take place in the other EU country in accordance with the agreement.

It goes even further. If there has been a child support assessment then that will also take priority in that country to the general claims made in a divorce in another EU country.

It may go even further. If on divorce there are "related" claims to maintenance, they should be transferred to the country dealing with the maintenance. It is therefore arguable that if there is child support agreement or assessment in another country, England would have to transfer the spousal needs claims to that country. It is even arguable that the property sharing claims ancillary to the divorce, being non-needs-based, should also be transferred because they are related. This last aspect is certain to be litigated in a test case to a very high level of English court.

This is all very new territory for English courts, English judges and English practitioners. It is however concepts very familiar to continental civil law jurisdictions.

It is against this background that these new domestic regulations have been introduced.

Schedule 1 covers the recognition and enforcement of maintenance decisions made in other EU countries. Within England they will be enforced in the magistrates court. An application for enforcement is transmitted by the Lord Chancellor. Jurisdiction for enforcement lies in the part of the UK in which the person against whom enforcement is sought is resident, assets belonging to that person or which are susceptible to enforcement are situated or held or any other matter relevant to enforcement. The court undertaking enforcement of the foreign order, agreement or assessment shall have the same powers as if the order etc had been made locally. It does not seem that the court enforcing a maintenance order would have the same powers as the court making the original order. This might otherwise have produced some very curious and interesting jurisprudential issues if our local magistrates courts were thereby given greater powers for enforcement in international cases which they did not have in national cases. Schedule 1 also deals with interest and judgements and currencies for payment. Any sums paid under a maintenance decision enforced in the UK shall be in Sterling, converted on the exchange rate when the application for enforcement or registration was received by the UK central authority. Proof of maintenance orders etc follows the now customary process found with certification of divorces across Europe.

Schedule 2 covers the provision of information through the central authority including sharing information between central authorities and certain public bodies such as CMEC, HMRC and the Secretary of State, the last being limited to information held for functions relating to social security, employment or training. It is clear that opportunities will be taken to obtain relevant information about the paying party to ensure sure cross-border enforcement is effective.

Schedule 3 facilitates enforcement of court settlements and what is known as authentic instruments. These cover non-court orders. They would certainly include notary documents and agreements, some other agreements and some mediated outcomes to which see the EU Mediation Directive.

Schedule 4 amends the Civil Jurisdiction and Judgements Act 1982, the primary piece of English legislation dealing with reciprocal enforcement of maintenance orders around the world. Schedule 5 amends the Civil Jurisdiction and Judgements Order 2001, itself covering Brussels II, so that the 2001 Order does not apply to maintenance cases to which the Maintenance Regulation applies. In essence it gives similar or greater priorities in respect of maintenance as it had to the Council Regulation, Brussels II.

Schedule 6 covers allocation of maintenance matters within the UK, being one combined EU member state and therefore requiring separate provision on these matters. There are particular duties and obligations on the courts when presented with maintenance claims more appropriate to other parts of the UK.

Schedule 7 then deals with consequential amendments to other legislation. As an indication of the extent of the changes wrought by the EU Maintenance Regulation, this part of the statutory instrument covers 21 pages and 28 separate UK primary or secondary legislation.

It has been said that we only knew Brussels I existed when Brussels II was introduced in March 2001. If we have II, then what is I, we asked! Brussels I recognition and enforcement of maintenance orders has been valuably used by some lawyers and some parties, but not extensively. Within family law it is now replaced by the Maintenance Regulation. Just as with Brussels II, we may find that it has a similarly dramatic impact for lawyers dealing with international families. Across continental Europe there are many marital agreements covering maintenance, thereby giving priority to maintenance issues being dealt with in those countries. Despite England in the past decade moving towards equality sharing, we are still primarily a needs-based jurisdiction. A great many divorce financial outcomes across the wealth spectrum are needs-based. England risks being seriously deprived of the opportunity to deal with needs-based outcomes if there are prior proceedings abroad for maintenance, any agreements covering maintenance or related proceedings. As of Saturday, the EU family law landscape has changed dramatically. The impact on English courts may be substantial. We may now find ourselves deprived of dealing with all financial issues to produce an overall fair outcome.

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 author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. 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.

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