Family Law

The Family Court of England & Wales has the power to make a financial order in respect of international assets held outside of the jurisdiction. Whilst this maximises parties’ financial claims within UK financial remedy proceedings by adopting a broad approach, it can give rise to difficulties later down the line in successfully enforcing such orders and fully implementing the settlement reached. When considering the enforcement of an English order overseas, the starting point is to consider:

1. The jurisdiction within which the asset is held together with the location of the debtor; and
   
2. What, if any, reciprocal enforcement arrangements are available within that location.
   

Location of the asset/debtor

The mere fact that an order has been made in the English Court does not guarantee that it will be enforced by the country within which the asset is held or the debtor located. The UK has several worldwide reciprocal arrangements in place (as detailed below) however there are still leading and influential areas of the world with whom the UK does not have the benefit of such arrangement, to include Russia and certain parts of the Middle East, Far East, Africa and South America.

Caution must therefore be taken by the receiving party when asking the English Court to approve or make a financial order incorporating assets held within these areas. The question as to whether or not an order of the English Court can be enforced in a foreign country, where no reciprocal arrangements are in place, is determined by the law of that particular country with no influence from the English Court.

Reciprocal arrangements

The current reciprocal arrangements that apply to the UK originate from (i) the EU; (ii) the Commonwealth; (iii) the Hague Convention; (iv) the Lugano Conventions; and (v) the UN Convention. In circumstances whereby a country has the benefit of more than one reciprocal arrangement with the UK, it is important to consider, before attempting to enforce the English order, what arrangement takes priority and what is most beneficial to the receiving party.

Maintenance orders

For cases involving the EU, the EU Maintenance Regulation (in force from June 2011) applies in respect of maintenance orders, including child support. As a result, English maintenance orders are automatically recognised and enforceable within EU member states (subject to Brexit update below). The EU Maintenance Regulation takes precedence over any other arrangement for recognition and enforcement within those countries.

For cases involving maintenance orders outside of the EU, the various reciprocal arrangements as referred to above exist for the enforcement and recognition of such orders within those countries. What arrangement to rely upon will very much depend on the nature of the order and the asset in question. In the first instance, enquiries should be made with the ‘Reciprocal Enforcement of Maintenance Orders Unit (“REMO”) via the Official Solicitor and Public Trustee in London.

It should be noted that following the UK’s withdrawal from the EU, significant changes to the reciprocal arrangements will take place. With specific regard to the EU Maintenance Regulation, during the transitional period this will continue to apply to recognition and enforcement of:

1. Decisions given in legal proceedings instituted before the end of the transitional period;
   
2. Court settlements approved or concluded before the end of the transitional period; and
   
3. To authentic instruments established before the end of the transitional period.
   

Where international conventions do not apply, the recognition and enforcement of a UK judgment will be governed by the national rules of the member state in which recognition/enforcement is sought.

Lump sum or property adjustment orders

Enforcing English orders in relation to a lump sum or property is more complex than orders relating to maintenance. That said, property adjustment and lump sum orders are likely to be capable of enforcement under the EU Maintenance Regulation if the purpose of the order is to meet a party’s needs as per the judgment in Van den Boogaard v Laumen [1997] 2 FLR 399.

Notwithstanding the above, it remains very difficult in practice to enforce an English order against a foreign property or to enforce a lump sum payment. In circumstances whereby none of the above reciprocal arrangements apply, the local Court will have the discretion to decide whether or not the English order will be enforced. This element of uncertainty should be considered carefully before proceeding with a settlement involving overseas assets or the payment of a lump sum by a party located overseas.

The difficulties of enforcing an English order overseas are highlighted in the ongoing case of Akhmedova v Akhmedov. Since December 2016 the wife has continued to fight for enforcement of her financial order in this long running case. To date, the husband has failed to voluntarily pay any funds to the wife despite being ordered to pay a lump sum of £453,576,152 in settlement of her financial claims.

In an attempt to seize the husband’s assets the wife issued enforcement proceedings in the UK. She subsequently claimed that the Dubai Court had a duty to uphold the UK ruling and seize the husband’s superyacht. The husband’s superyacht was seized in March 2018 whilst the wife’s enforcement proceedings were ongoing. However, the Dubai Court of Appeal dismissed the wife’s claim and the court ruled against the freezing order placed on the superyacht by the Dubai International Financial Centre (DIFC) in aid of the English Judgment.

More recently in August 2020 the Dubai Court of Cassation upheld the above ruling that the Wife’s English order is unenforceable in Dubai on the basis that the ruling is ‘…contrary to Islamic sharia, United Arab Emirates personal status law and public policy’.

This ongoing case demonstrates the need to give careful consideration to the structure of any financial settlement reached and the likelihood of the terms of English orders being enforced worldwide.