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David Hodson on International Family Law: "Needs" claims and sole domicile jurisdiction
Sep 29, 2018, 21:30 PM
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Apr 27, 2012, 06:25 AM
Article ID :98399
The EU Maintenance Regulation is one of the most complex and bewildering pieces of legislation in English family law, having been directly imposed into our law from the EU with effect from 18 June 2011. Its highly laudable intention is to make maintenance orders automatically recognised and enforceable across Europe. This is not just the preserve of the super wealthy. This is, say, a mother in Hamburg with several young children and arrears of maintenance of €6000 which she wants to pursue against the father who has moved to Bordeaux. The EU is quite rightly seeking to make it easier for such people to pursue such claims across EU borders without having to invoke complex national processes in each country.
The problems with the EU Maintenance Regulation are very many. Within the UK we have it relatively easier. Across the EU apart from the UK and Denmark there is an added strata of complexity based on the 2007 Hague Protocol for countries using applicable law. Even continental European specialist family lawyers working with applicable law daily are reporting real difficulties in its implementation. At the IAML European Chapter meeting last week in Crete, Tim Amos QC and Sandra Verburgt of the Netherlands gave an excellent presentation of some of the many difficulties and practical problems. For myself, last autumn when writing the Grey Book (Jordan's The International Family Law Practice) the complexities of understanding the EU Maintenance Regulation as it is likely to operate in practice put back the publication by at least a month.
One element within the EU Maintenance Regulation is generally interpreted as having a much wider implication than just cross border EU cases. For many months since June 2011 it has been discussed and debated between lawyers undertaking a significant amount of international work. It needs to be more widely understood. Has the EU Maintenance Regulation created an unintended consequence affecting all non-EU divorce finance work? Or is it indeed intended? What does it mean in practice?
Put simply, the EU Maintenance Regulation seems to assert that EU member states only have jurisdiction for maintenance when either party is habitually resident in that country or when ancillary to divorce proceedings provided jurisdiction for the divorce proceedings is not based exclusively on sole domicile (Art 3). "Maintenance" is interpreted in this context as "needs", being one of the criteria for a fair financial outcome alongside sharing, compensation and marital agreements.
It should be said immediately that this has relatively limited application. The vast majority of divorce petitions in this country are on the jurisdiction of joint habitual residence. Indeed this is the default position in the printed form attached to the FPR 2010. In some other cases, the jurisdiction is the English habitual residence of one of the parties. Sole domicile without any habitual residence can only be used when the other bases of jurisdiction are unavailable either here or in any other EU country. It is the so-called "residual basis" in Brussels II. But sole domicile is still vitally relied on in a number of cases including where there are connections with countries outside of the EU. Anecdotally, the number of contested domicile cases in the family courts has risen significantly over the past few years.
In the demographics and pattern of international families across the world at the present time, there are quite a few instances of reliance on this jurisdictional basis. It is, for example, the spouse from England living abroad with her husband outside the EU then returning home on the breakdown of the marriage and, as the plane crosses the White Cliffs of Dover, her domicile of origin reverts and the spouse hotfoots from Heathrow (via 3 hours in Passport Control: welcome home!) to her local divorce County Court to issue on the basis of her sole domicile.
There is now a widespread belief that in those circumstances of a divorce based only on domicile, the English family courts will have no power to deal with needs-based claims. Certainly they will have power to deal with sharing, which might be greater than needs. But a strict wording of the Maintenance Regulation suggests that without any habitual residence, the needs-based claims are without jurisdiction.
One response of course has been that this law is only intended for the EU market, ie cases involving more than one EU jurisdiction and it doesn't affect non-EU cases. There is already much anxiety and unhappiness within England including the English judiciary about attempts by the EU to prohibit anti-suit injunctions and their more temporary cousin, the Hemain order, and to impose jurisdictional rules in non-EU cases. Only time will tell which for lawyers means only a reliable decided case will tell us the answer. In the meantime it is arguably unsafe to rely confidently on a divorce petition based on sole domicile when bringing needs claims in excess of sharing.
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.