THE EU MAINTENANCE REGULATION

Transcription

1 THE EU MAINTENANCE REGULATION The International Family Law Group LLP Hudson House 8 Tavistock Street Covent Garden London WC2E 7PP September 2012 (Statutory material: (c) Crown Copyright) Part of these notes are taken from The International Family Law Practice (Jordans 2012) by David Hodson, with acknowledgments to Jordans These notes have been prepared by David Hodson, Partner at the International Family Law Group LLP September 2012

2 ABOUT THE SPEAKER About Lucy Loizou Lucy is a Solicitor and Associate with the International Family Law Group. Lucy is regarded as one of the country's leading young family lawyers. She undertakes complex financial and children disputes and has worked on a number of cases involving high net worth issues often involving an international element. She has also acted for a number of high profile individuals and assisted in resolving their disputes swiftly and discretely. She has experience dealing with the national media. She has worked in Surrey and in Central London. She has written family law articles for various legal journals and regularly lectures on areas of family law. She also has her own fortnightly radio show on London Greek Radio where she answers questions on all family related matters. She speaks Greek fluently. The International Family Law Group LLP is a specialist law firm providing services to the international community as well as for purely national clients. iflg has a special contract with the Legal Services Commission for child abduction work and is regularly instructed by the UK Government (Central Authority). It acts for international families, ex pats and others in respect of financial implications of relationship breakdown including forum shopping and international enforcement of orders. It receives instructions from foreign lawyers and, as accredited specialists, acts for clients of other law firms seeking their specialist experience. iflg is situated in Covent Garden near the Law Courts. Its mobile telephone accessible website includes valuable information, podcasts, a government approved child abduction questionnaire and formulae as a starting point for calculating fair financial settlements. It has emergency 24 hour contact arrangements. Contact at September 2012

3 THE EU MAINTENANCE REGULATION CONTENT OF LECTURE NOTES 1. Introduction & Background 2. When does the EU Maintenance Regulation Apply and how is Maintenance defined? 3. Jurisdiction under the Regulation 4. First to Issue Priority The Key Facts of the Regulation 5. Implications of priorities under the Maintenance Regulation 6. Recognition and Enforcement- How does the Regulation work in practice? 7. Procedure 8. The future 3 September 2012

4 An Introduction- Brussels I and the EU Maintenance Regulation 1. Brussels I was the Brussels Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, in force for all EU states from 1 January It was superseded from 1 March 2002 by Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and still often referred to as Brussels I. It laid down rules for jurisdiction, recognition and enforcement in some family matters. It is referred to in these notes as (BI) but it is also known as the Judgment Regulation. 2. However, BI covered both civil and commercial matters along with family law issues of maintenance, as so defined. It was felt in Brussels, quite rightly in the opinion of many family lawyers, that there should be a distinctive Regulation in respect of family law maintenance and the situations when cross-border maintenance orders and agreements are to be enforced. Hence BI was replaced for family law maintenance on 18 June 2011 by the Maintenance Regulation being EU Council Regulation No 4/2009 of 18 December 2008 on Jurisdiction, Applicable Law, Recognition and Decisions and Co-operation in Matters relating to Maintenance Obligations, including as applied in relation to Denmark by virtue of the agreement1 made on 19 October 2005 between the EC and the Kingdom of Denmark. It applies directly into English law. It is known as the Maintenance Regulation and is referred to here as MR.2 3. The intention is that a maintenance creditor (payee) in a member state with a court order, including administrative decisions such as child support, will have it 1 OJ No L There is a supplementing instrument Council Regulation (EC) No 664/2009 establishing a procedure for the negotiation and conclusion of agreements between member states and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations, and adopted on 7 July September 2012

5 automatically recognized and easily enforced in another member state without further formalities, recognition and procedural steps. This has required bringing together provisions on jurisdiction, conflict of laws, recognition and enforceability, enforcement, legal aid and co-operation between Central Authorities. The implementation process has not been easy. It is on any basis a complicated piece of legislation. 4. Moreover, it has extended BI jurisdiction by giving jurisdictional priorities to certain agreements which are far outside the Radmacher criteria, for example without independent advice and disclosure. The first to issue principle of BII is likely to bite more deeply than under BI. It anticipates maintenance aspects, often understood as representing needs, being decided in one jurisdiction and property sharing division being decided in another jurisdiction. This is very alien to English expectations of one overall process dealing with all resources of the family on one set of criteria. It is however thoroughly conventional across most of continental Europe. It is not yet known how the English courts will deal with this recent legislative development. 5. Although it directly replaces BI in the family law maintenance context, and the old law and interpretations still apply, the EU tried additionally in MR to impose applicable law on all of the EU, particularly the UK which across Europe primarily operates only local law. The UK government refused to accept this, as they were entitled, so the applicable law elements are referred to the Hague Protocol on the Law Applicable to Maintenance Obligations of 23 November The UK and Denmark are not bound by the Hague Protocol. 5 September 2012

6 When does the Maintenance Regulation Apply and how is it defined under the Regulation 6. The MR applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity,3. Family relationship are not defined and will cover obligations arising from marriage, and should cover registered civil partnerships. It covers parent/child relationships and some wider family relationships. Therefore it does not cover status or legal capacity, rights in property arising out of family relationships or wills or succession. Specifically it only covers maintenance, which is more widely defined than just periodical payments, but narrower than all Family Court financial orders or financial remedies. 7. It includes court decisions as to maintenance obligations and court settlements, howsoever called, including where approved by a court, for example consent orders, court orders as to costs and expenses, authentic instruments which anticipates arrangements with or registered with administrative authorities of member states but probably includes notarized agreements. The definition of court includes administrative authorities of member states with competence in matters relating to maintenance obligations, thereby including child support organizations. 8. It applies to maintenance orders and decisions etc made on or after 18 June 2011 in proceedings commenced on or after 18 June MR, Art 1(1). 4 MR, Art September 2012

7 Definition of maintenance 9. With the fundamental importance given in the MR to maintenance, its definition is fundamental. MR only applies to maintenance obligations.5 This was the same, in essence, under BI. 10. So what does MR cover? All finances on divorce? Pure periodic payments? Or any other? Maintenance has been defined as not just covering maintenance for adults and children. It has been given a much wider interpretation. It has been seen as being akin to needs. It therefore also covers transfers of property for the accommodation needs of one party and lump sums constituting capitalized maintenance. 11. The leading ECJ case Van de Boogaard v Laumen 6 arose from a full and final capital order including property transfers made by the English High Court and being enforced abroad.7 The ECJ looked at the conundrum presented in England by the BI (now MR) reference to maintenance: The English court was under an obligation to consider whether it had to impose a clean break between the spouses and to order payment of a lump sum instead of periodical payments. The fact that the decision in the present case also ordered ownership on certain property to be transferred between the former spouses could not call in question the nature of that decision as an order for the provision of maintenance. The aim was still to make provision, by means of a capital sum, for the maintenance of one of the former spouses. Consequently, a decision in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her 5 MR, Art 1. 6 [1997] 2 FLR 399 ECJ. 7 It should be noted that this was a pre-white case when the objective was not sharing or equality division but the reasonable requirements of the applicant, here the wife, and therefore more easily distinguishable as needs. Curiously, the financial claims in England followed a Dutch separation agreement which the English court refused to follow. 7 September 2012

8 former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Brussels Convention if its purpose was to ensure the former spouse s maintenance... Because on divorce an English court can regulate both the matrimonial relationships of the parties and matters of maintenance, the court from which leave to enforce was sought must distinguish between those aspects of the decision which related to rights in property arising out of the matrimonial relationship and those relating to maintenance, having regard in each case to the specific aspect of the decision rendered. It should be possible to deduce that from the reasoning of the decision in question. 12. In Al Khatib v Masry 8 the order was framed specifically to assist in enforcement under BI (now MR). 13. In Moore,9, the husband said his application in Spain was for maintenance under BI and therefore took priority over the later Part III of the Matrimonial and Family Proceedings Act 1984 proceedings of the wife in England. The Spanish proceedings were first in time. The Spanish proceedings were still pending so, he alleged, the English court should have stayed its Part III proceedings until they were finished. 14. The Court of Appeal judgment in Moore looked in considerable detail at the meaning of maintenance and should be read by all practitioners seeking to enforce under MR. It found six propositions from the ECJ in Van de Boogaard v Laumen (1) whether a claim is for maintenance depends on the interpretation of the term: the label given by a national law, for example maintenance order, is not decisive; (2) payment of a lump sum or transfer of a property may be in the nature of 8 [2002] 1 FLR [2007] 2 FLR September 2012

9 maintenance if intended to support the spouse; (3) if the only purpose is a division of property or compensation, then it is not maintenance; (4) a lump sum payment or transfer of property intended as a division of assets will concern rights in property and is not maintenance; (5) whether a claim relates to maintenance will depend on its purpose including whether to enable one spouse to provide for themselves; (6) where the provision is concerned solely with dividing property between spouses, it will be regarding rights arising out of property and not enforceable under BI. 15. The Court of Appeal found that the proceedings in Spain were specifically for the adjustment of wealth between the spouses, and not maintenance. It was an intention to share the assets. Therefore, as the proceedings before the Spanish court were not under MR, as it now is, they did not give any priority in time. 16. Given that maintenance for the purposes of MR has such a wide meaning, mainly equivalent to needs, and given that the vast majority of English divorce financial disputes are still resolved in part or often in whole, and sometimes in parallel with sharing, on a needs basis, it means that very many English financial orders will be in whole or part maintenance. This may be even if the settlement was a capital lump sum or a property transfer: a lump sum might be capitalized maintenance and therefore covered as maintenance, property adjustment might be to provide needs for accommodation and therefore covered as maintenance.10 It would only be non-needs pure sharing elements which would not be covered by this Regulation. So for enforcement of English orders abroad, it is good news. The English divorce court makes an order dealing with all financial issues which is in 10 it is also worth noting that in K v L (Non-Matrimonial Property: Special Contribution) 2011 EWCA Civ 550 at para 22, the Court of Appeal indicated that they were not aware of any reported decision in which non-marital assets had been shared, as distinct from being divided on the basis of needs. So, curiously, enforcement abroad under MR against non-marital assets will be maintenance as the order would have been on a needs basis. 9 September 2012

10 whole or significant part needs-based and which part can therefore be recognized and enforced abroad. 17. The problem is the reverse scenario. England is dealing with a divorce and has an application for all forms of financial order. However, another EU country has prior jurisdiction to deal with maintenance and does so. This jurisdiction may be based on an agreement including a pre-marriage agreement or based on prior standalone self-contained maintenance provisions, perhaps several years earlier. In these circumstances the English family court finds itself prevented from dealing with the maintenance (i.e. needs) aspects because of the priority of the jurisdiction of the other country. Jurisdiction 18. Jurisdiction arises on connectedness in traditional fashion in Art 3, from agreements in Art 4 and in some other forms in Arts 5, 6 and 7, and is limited through Art 8. Article 3 of MR states that: In matters relating to maintenance obligations in member states, jurisdiction shall lie with: (a) (b) (c) (d) the court for the place where the defendant is habitually resident, or the court for the place where the creditor is habitually resident, or the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on nationality of one of the parties, or the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to 10 September 2012

11 maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties. It will be seen that this is not a hierarchy and, like the jurisdictional bases in BII, any can be chosen. 20. However, if the divorce (or any other claim for financial remedies) is based on the residual ground of sole domicile England simply now has no jurisdiction, i.e. power, by Art 3(c) entertain maintenance claims. This is not just in EU cases. It applies worldwide. (It will not arise in most cases where any form of residence is present.) The Maintenance Regulation has totally taken away the power to make maintenance, i.e. needs based, claims where reliance is only on sole domicile. Sharing claims remain alive, but not needs. It is causing real injustice for English people abroad wanting to pursue claims here. There was no publicity when this was introduced in June 2011 although the Ministry of Justice was aware. It is now reluctantly accepted by specialists although a test case may appear soon. It may be possible to reply on an Art 7 exception but it is not known if this will get a narrow or wide interpretation in England. But until further authority, position seems that England cannot entertain a family court claim for maintenance, needs, if based on sole domicile. Great care is needed. 21. Reference in Arts 3, 4, and 6 of MR to sole nationality, the residual basis from BII, should be construed as domicile in the UK and the Republic of Ireland In Farreh v Long12 a mother in Ireland was held to be able to bring proceedings in the Irish courts against a father living in Belgium on the basis that she was a maintenance creditor for the purpose of the BI equivalent of Art 3 even though she did not yet have a maintenance order. 11 MR, Art 2(3). 12 [1998] 1 FLR September 2012

12 24. Significantly Art 4 extends the jurisdiction to allow the parties, within reason i.e. to avoid so-called exotic choices, to agree and select a court to deal with maintenance issues. The parties may agree that the following courts of a member state shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them:13 (a) a court or the courts of a member state in which one of the parties is habitually resident; (b) (c) a court or the courts of the member states of which one of the parties has the nationality;14 in the case of maintenance obligations between spouses or former spouses (i) the court which has jurisdiction to settle their dispute in matrimonial matters or (ii) a court or the courts of the member state which was the member state of the spouses last common habitual residence for a period of at least one year. 25. The conditions referred to have to be met at that time the agreement is concluded or at the time the court is seized with the maintenance application.15 Crucially, the jurisdiction conferred by Art 4 agreement is exclusive unless the parties have agreed otherwise,16 i.e. there would appear to be no option to use the other provisions as to jurisdiction, for example Art 3, and Arts 5, 6 and 7 below. This is highly relevant for jurisdiction on maintenance in English divorce financial claims. The agreement has to be in writing although this can include any communication by electronic means which provides a durable record of the agreement.17 Moreover, this Art 4 does not apply to a dispute relating to maintenance obligations for a child 13 MR, Art 4(1). 14 Or domicile for the UK and the Republic of Ireland, see above. 15 MR, Art 4(1). 16 MR, Art 4(1). 17 MR, Art 4(2) September 2012

13 under If the parties have agreed to attribute exclusive jurisdiction to a court or courts which are signatories to the Lugano Convention, where that state is not an EU member state, the Lugano Convention applies unless relating to maintenance obligations towards a child under This Art 4 would therefore seem to cover jurisdiction clauses in, at least, premarriage agreements, marital and separation agreements, possibly agreements found in lawyers correspondence20 or even agreements during the actual proceedings,21. In D v P (Forum Conveniens),22 use of this article in BI failed, as the original separation agreement did not contain a jurisdiction clause. Naturally it covers premarital and marital agreements after independent legal advice and extensive disclosure, in the English and common law tradition. More worrying in the perception of English practitioners, it covers agreements entered into through a notary, without independent legal advice and without separate representation23. In Traversa, the agreement was little more than a tick box of one of several options on the marriage certificate itself, without any legal advice.. Some marital maintenance agreements may not contain a jurisdiction clause regarding choice of courts, so are not covered by this jurisdiction provision. 27. Care is needed to ensure solicitors correspondence does not unintentionally create a Art 4 jurisdiction agreement in itself. Quantum and other terms do not need to be agreed for a jurisdiction agreement giving Art 4 priority. There is no doubt this point will be taken in litigation in cases where one party s solicitor did not appreciate he may have been agreeing or accepting jurisdiction. It is to be hoped the courts will be realistic about professional practice and pressures on solicitors work and only allow fully intended jurisdiction agreements. 18 MR, Art 4(3). 19 MR, Art 4(4). 20 And see below in the text with concerns about unintended jurisdiction agreements being construed in correspondence between lawyers 21 And see caution about possible duress in this scenario 22 [1998] 2 FLR It is very far from the Supreme Court expectation in Radmacher September 2012

14 28. Next, jurisdiction arises for a member state before which a defendant enters an appearance provided it is not (just) to contest jurisdiction There is jurisdiction raised on common nationality of the parties, common domicile in the case of the UK, where no member state has jurisdiction based on Arts 3, 4 and 5, above, and no Lugano Convention signatory country has jurisdiction Finally, as a mopping up provision, there is jurisdiction on the basis of forum necessitatis : where no member state has jurisdiction based on the above provisions in Arts 3, 4, 5 and 6 the courts of a member state may on an exceptional basis hear a case if proceedings cannot reasonably be brought or concluded or would be impossible in a third state with which the dispute is closely connected. Nevertheless, the dispute must have a sufficient connection (not defined) with the member state of the court intended to be seized Then Art 8 limits the above jurisdiction. Where a decision has been given in any EU member state or a 2007 Hague Convention Contracting State (on the International Recovery of Child Support and Other Forms of Family Maintenance) where the creditor is habitually resident, proceedings to modify that decision or to create a new decision cannot be brought by the debtor in any other member state as long as the creditor remains habitually resident in the state in which the decision was given.27 So, for example, where France has made a maintenance order for a French recipient wife habitually resident in France with the paying party in Germany, neither Germany nor any other state can modify or vary the French maintenance decision or make any new decision whilst she resides in France. 24 MR, Art MR, Art MR, Art MR, Art 8(1) September 2012

15 Variation has to be in the state which made the original order whilst the maintenance creditor is habitually resident there. This is a very important priority and would apply if, in this example, the German courts then had divorce proceedings with, in English equivalent terms, ancillary financial claims with the maintenance creditor still habitually resident in France. M v V (Child Maintenance: Jurisdiction: Brussels I),28 a 2010 case, is no longer good law. 32. This Art 8 limitation does not apply in four situations: where the parties have agreed jurisdiction in accordance with Art 4, the paying party has submitted to the jurisdiction in any other member state following Art 5, the competent authority in the 2007 Hague Convention Contracting State of origin cannot or refuses to exercise jurisdiction to modify the decision or make a new maintenance decision or where the decision given in a 2007 Hague Convention Contracting State cannot be recognized or declared enforceable in the member state where the proceedings to modify or have a new decision have been contemplated A court is seized with a jurisdiction in exactly the same circumstances as BII,30. Similarly to BII, where a court of a member state is seized of a case over which it has no jurisdiction under MR, it should declare of its own motion that it has no jurisdiction.31 Furthermore, there are safeguarding provisions when a defendant who is habitually resident in a state other than the member state where the action is brought does not enter an appearance.32 The country must stay the proceedings until satisfied that he has received the documents. Reference in this context is also made to the EU Service Regulation. 28 [2011] 1 FLR MR, Art 8(2). 30 MR, Art MR, Art MR, Art September 2012

16 34. The MR covers decisions by a public body acting in place of an individual to whom maintenance is owed or to whom reimbursement is owed for state benefits.33 It would therefore include child support assessments. Although within England and Wales C-MEC has no jurisdiction when a parent is resident abroad etc there are circumstances where an existing child support assessment, made when it did have jurisdiction, could be enforced abroad in another member state. Equally, administrative assessments by equivalent child support agencies across Europe can be enforced directly in England. First to issue priority under the Maintenance Regulation 35. Just as with BII, the first to issue, lis pendens, provision applies. 36. First as a preliminary, see Art 8 above regarding proceedings to vary or modify an existing maintenance financial order and the limitation on the Art 3 jurisdiction, for example on divorce ancillary relief claims34 if there is a previous maintenance order in another EU state. 37. Primarily on priority of jurisdiction, where proceedings involving the same cause of action and between the same parties are brought in the courts in different member states, any court other than the court first seized must of its own motion stay proceedings until such time as the jurisdiction of the court first seized is established.35 Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of the court MR, Art Under MR, Art 3(c). 35 MR, Art 12(1). 36 MR, Art 12(2) September 2012

17 38. Further, crucially and fundamentally to England which views needs (maintenance), sharing and compensation as all part of the overall fairness objective of the law, MR extends the above first to issue to related actions :37 1. Where related actions are pending in the courts of different Member States, any court other than the court first seized may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. 39. Note this is discretionary stay, not mandatory. It will be for the English courts to work out the appropriate circumstances of going ahead with or staying related actions. 40. In D v P 38 (above), Connell J held that as the Italian court was first seized of the issue of child maintenance at the time of the original separation rather than later divorce, the English divorce court had to decline jurisdiction on the matter of child maintenance. Moreover, as the wife s own claim for spousal maintenance was a related matter and it would be most unsatisfactory to have proceedings between the parties in two jurisdictions, the English court could grant a stay of all financial ancillary issues. 37 MR, Art [1998] 2 FLR September 2012

18 41. Circumstances when another EU member state has priority on maintenance despite English first in time divorce: an agreement giving jurisdiction to another EU state: Art 4 a prior court order in another EU state for maintenance: Art 12 prior proceedings in another EU state for maintenance: Art 12 a related action ( so closely connected etc) in another EU state, although only discretionary stay: Art 13 maintenance claims on English divorce are intended to vary or modify existing maintenance obligation in another EU state: Art 8 no jurisdiction under Art 3 (c ), although very narrow circumstances Implications of priorities under MR 42. Practitioners in England have fundamental anxieties about this impact of the first to issue and the consequence of the related actions. This is in addition to the overriding concerns generally about the principle of first to issue, lis pendens. It has several implications. (1) The first to issue principle existed in BI but is anticipated to have much broader impact in MR. There is the prospect of very many marital agreements, the cultural norm across many parts of continental Europe, having choice of jurisdiction provisions and therefore giving exclusive jurisdiction, equivalent of being first in time, to issues of maintenance. This would seem to mean that the English divorce court could not then deal with the maintenance issues which would have to be dealt with in the country chosen by the parties in the agreement, perhaps chosen very many years earlier and without any legal advice or disclosure etc, and with which there may now be only minor connections or even no ongoing connections September 2012

19 (2) As a corollary, although less frequent because marital agreements are not a cultural norm in England, the English courts could find themselves dealing with maintenance as a consequence of the forum choice in a qualifying agreement made many years earlier, notwithstanding a foreign divorce or foreign financial claims. Procedural rules have been changed to allow this jurisdiction. (3) Even if there is no marital agreement giving prior exclusive jurisdiction, there may have been maintenance proceedings including child support arrangements or short-term spousal support39 but without any intention to deal with overall financial circumstances on relationship breakdown. Nevertheless these prior maintenance proceedings are likely to be regarded as first in time and therefore any subsequent proceedings for maintenance (4) The reference to related actions also being possibly stayed so that they can go ahead in the jurisdiction already dealing (seized) with maintenance raises the real possibility that England may have prior jurisdiction for divorce and ordinarily be seized with jurisdiction for all financial orders. If, however, another EU member state is seized with maintenance issues, because first in time or a maintenance agreement, then it would seem clear that if England has to decline to deal with maintenance aspects. But what about the remaining financial aspects, particularly sharing, one of the elements of fairness division as set out by the House of Lords in Miller? There would seem to be three possible scenarios after the mandatory transfer of maintenance: (a) the English courts would find it hard to retain entitlement to deal with the residual sharing aspects, and therefore remaining financial aspects, outstanding claims for financial orders, would also be transferred across as a related action ( so closely connected etc); (b) the English courts adjourn generally the remaining, sharing, elements of the 39 for example such as the historic failure to maintain freestanding maintenance proceedings in the English family proceedings court, which are still quite current and prevalent across parts of Europe and therefore likely to lead to freestanding maintenance obligations with priority in time 19 September 2012

20 financial settlement until maintenance has been resolved abroad, even though that may be several years,40 and then subsequently work out what is a fair settlement as a consequence, i.e. deciding the overall fairness exercise after the foreign maintenance had been resolved; or (c) the English court simply gets on with the fairness sharing exercise even though that will include provision for elements of needs, in circumstances where sharing is likely to be in excess of needs, and in the expectation that the first seized court then dealing with maintenance would take account of the division already undertaken which had met reasonable maintenance needs, i.e. no needs claims then remain to be resolved. The third is to English perception the far more satisfactory and better solution. It may not find favour in Brussels or in some EU countries. This issue will be litigated very quickly following the MR coming into force. (5) Unlike BII revised with its power to transfer children cases when in the best interests of the child, MR has no power or expectation that the court first seized with maintenance, (6) The parties could seemingly agree to a transfer to another country by an Art 4 agreement made at the time of the proceedings but few will do so if they may then have a less good overall order. (7) The MR applies to some other family relationships, less litigated as an issue in England but a significant area of family law in some EU countries 51. One consequence is that post-june 2011, specialist practitioners are now issuing Form A immediately with the divorce petition to ensure their client is not only first in time with the divorce under BII but also first in time with the maintenance 40 Especially as some countries are exceedingly slow in that, for example, maintenance may have been ordered at the time of separation proceedings and years must pass before the opportunity for divorce proceedings with final maintenance resolution, yet the country would have priority during this period September 2012

21 application under MR. The mediation imperative of Part 3 cannot apply in these circumstances because of the urgency imposed by the EU legislation. Just like BII, this legislation increases the speed of the issue of court proceedings when instead good practice would normally be to devote every effort to maximise opportunity for resolution without urgent court proceedings. Applicable law 43. Predictably with the strong EU policy agenda of trying to impose applicable law across Europe, contrary to the wishes of several countries, the initial draft of MR anticipated the adoption of applicable law in considering maintenance issues. For a time, the UK did not opt in. A sensible resolution was eventually reached based on the Hague Protocol on 23 November 2007 on the Law Applicable to Maintenance Obligations. The EU Maintenance Regulation now provides one procedure for maintenance obligations from those countries when there is the application of conflicts of laws and a parallel system of enforcement for those local law countries who have not opted into the Hague Protocol, namely the UK and Denmark. The former, the applicable law jurisdictions, have a more immediate, automatic enforcement process. For the latter countries, UK and Denmark, it is slightly more cumbersome, however a sensible compromise. 44. English outgoing orders will require a declaration of enforceability in the foreign jurisdiction as will incoming orders from Denmark. Incoming orders from the other member states will be enforceable directly and therefore not require a declaration of enforceability, the registration process. All incoming and outgoing orders between EU member states apart from the UK and Denmark will always be automatic without any registration or other intervening process. 45. It is understood from continental European practitioners that the conflict of law, applicable law, provisions in the 2007 Hague Protocol from Art 15 of MR are perceived as very complex in practice as well as in law. Far from creating 21 September 2012

22 simplified laws and procedures, the EU has created massive uncertainties and contradictions and inevitably increased litigation. Provisional and protective measures 46. The usual provisional including protective measures are available41 even if the courts of another member state have jurisdiction as to the substance of the matter. They are available even without a Art 30 declaration of enforceability42. In M v M (maintenance pending suit: enforcement on dismissal of a suit),43 when a divorce is dismissed for want of jurisdiction, whatever has been paid under a maintenance pending suit order is irrecoverable and outstanding arrears can still be enforced. How does it work in practice? Recognition and enforcement 47. This is the heart and purpose of the Maintenance Regulation. In summary, it is relatively simple. In the detail, it is complicated. In essence there is automatic recognition of maintenance orders around the EU. Moreover there is automatic enforcement across the EU of all orders made in EU states apart from those made in the UK and Denmark.44 For these countries, there is additional registration process before enforcement. As stated above a Declaration of Enforceability needs to be obtained. 48. Article 56 sets out the available applications. 41 MR, Art Art [2009] 1 FLR As the non Hague Applicable Law Protocol countries September 2012

23 A creditor seeking to recover maintenance under MR may make applications for the following:45 (a) recognition or recognition and declaration of enforceability of a decision; (b) (c) (d) (e) (f) enforcement of a decision given or recognised in the requested Member State; establishment of a decision in the requested Member State where there is no existing decision, including where necessary the establishment of parentage; establishment of a decision in the requested Member State where the recognition and declaration of enforceability of a decision given in a State other than the requested Member State is not possible; modification of a decision given in the requested Member State; modification of a decision given in a State other than the requested Member State. 49. A debtor against whom there is an existing maintenance decision may make applications for the following:46 (a) recognition of a decision leading to the suspension, or limiting the enforcement, of a previous decision in the requested Member State; (b) (c) modification of a decision given in the requested Member State; modification of a decision given in a State other than the requested Member State. Save as otherwise provided in MR, the applications referred to above should be determined under the law of the requested member state and shall be subject to 45 MR, Art 56(1). 46 MR, Art 56(2) September 2012

24 the rules of jurisdiction applicable in that member state.47 This may be local law or applicable law. 50. Orders made after 18th of June 2011 in proceedings commenced after 18th of June are automatically recognized across the EU Orders made after 18 June 2011 in proceedings commenced after 18 June are automatically enforceable across the EU unless made in the UK and Denmark. Because of the separation between those member states adopting applicable law from the 2007 Hague Applicable Law Convention and those not being bound, namely the UK and Denmark, different provisions on enforcement apply. There are therefore two parallel procedures for recognition and enforcement. Maintenance orders etc made in those countries with applicable law follow Arts 17 22, the primary, default position under MR. Arts apply where the maintenance order etc has been made in the UK and Denmark which will need the process of registration. There are some common provisions for both sets of jurisdictions in Arts In respect of the primary position, i.e. all maintenance orders except those made in the UK and Denmark, maintenance orders are enforced without any other registration-type procedures required,51 without the possibility of opposition to recognition and enforceability of another member state and without the need for a declaration of enforceability.52 In other words, they can be directly enforced, a long-term laudable goal of the EU across European family law. Incoming orders 47 MR, Art 56(4). 48 See transitional provisions below. 49 MR, Arts 17(1) and 23(1) with some review provisions on recognition for orders from the UK and Denmark 50 See transitional provisions below. 51 MR, Art 17(2). 52 MR, Art September 2012

25 from EU member states with applicable law,53 i.e. all member states except Denmark, are not subject to registration and benefit from direct enforceability in magistrates courts in the same manner as an order for maintenance which had been made in proceedings in England and Wales,54 see below and para 3.1 of PD 34C The domestic procedure is set out below, MR states that a maintenance order with automatic enforcement, i.e. all incoming orders apart from Denmark, carries with it by operation of law the power to proceed to any protective measures which exist in England.56 Therefore all available English powers and remedies for enforcement exist for the foreign maintenance order. There are limited provisions for the right to apply for a review.57 Certain documents are required for enforcement purposes,58 and this has been amplified within England by domestic rules. 54. In conclusion, and apart from transitional provisions, this automatic enforcement applies to all incoming maintenance orders etc from the EU apart from Denmark and applies to all maintenance orders etc passing between EU member states apart from orders made in the UK and Denmark. 55. The second parallel procedure is for orders made in the UK, and also Denmark. All UK outgoing orders still need registration through declarations of enforceability in other EU states59 as will incoming orders from Denmark Ie which apply the 2007 Hague Protocol on the Law Applicable to Maintenance Orders. 54 Magistrates Courts Rules 1981 (as amended), rr 59A and 59B apply. 55 In force on 31 October MR, Art MR, Art MR, Art FPR PD 34C, para FPR PD 34C, para September 2012

26 56. A maintenance decision given by the UK (or other member state not bound by the Hague Protocol, i.e. Denmark) is to be recognised in other member states without any special procedure being required.61 Any interested party who raises recognition as the principal issue in a dispute may apply for a order that the maintenance decision is recognised.62 If the outcome of proceedings in a court of member state depends on the determination of an incidental question of recognition, that court has jurisdiction over the question There are grounds for refusal of recognition, similar to BII:64 A decision shall not be recognised: (a) (b) (c) (d) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought. The test of public policy may not be applied to the rules relating to jurisdiction; where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence unless the defendant failed to commence proceedings to challenge the decision when it was possible to him to do so; if it is irreconcilable with a decision given in a dispute between the same parties in the Member State in which recognition is sought if it is irreconcilable with an earlier decision given in another Member State or in a third party State in a dispute involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. 61 MR, Art 23(1). 62 MR, Art 23(2). 63 MR, Art 23(3). 64 MR, Art September 2012

27 58. However, a decision which has the effect of modifying an earlier decision on maintenance on the basis of changed circumstances should not be considered an irreconcilable decision within the meanings of (c) or (d). 59. As far as enforcement, as distinct from recognition, is concerned, an English maintenance decision is enforceable in another member state when on the application of any interested party it has been declared enforceable there.65 Unlike the automatic procedure for the enforcement of maintenance orders made in applicable law countries, it is necessary to have a separate procedural step of obtaining a declaration of enforceability. The application for this declaration is submitted to the court or competent authority of the member state of enforcement. Local jurisdiction is the place of habitual residence of the party against whom enforcement is sought or to the place of enforcement The outcome of the application can be appealed by either party in accordance with Arts 32 and 33. There is a restriction on the grounds of appeal with a required timetable. Proceedings are stayed during an appeal.67 Provisional including protective measures are available without a Art 30 declaration of enforceability The declaration of enforceability allows the power to proceed to any protective measures by operation of the law.69 No enforcement measures can be taken apart from protective measures during the period of an appeal.70 There is the availability of a declaration of enforceability against some aspects of a maintenance decision and enforcement upon other aspects. The whole of the maintenance decision does 65 MR, Art MR, Art MR, Art 35 and see Art 25 above. 68 MR, Art 36(1). 69 MR, Art 36(2). 70 MR, Art 36(3) September 2012

28 not require a declaration of enforceability before enforcement can proceed on some parts The above applies to maintenance orders etc made in the non-applicable law countries being the UK and Denmark. The following applies to maintenance orders etc made in all EU states, whether adopting applicable law or local law. 63. The country making the maintenance order can declare the decision provisionally enforceable notwithstanding any appeal, even if national law does not provide for enforceability by operation of law.72 There are provisions for invoking a recognised decision,73 although this may not be frequently utilised in England. 64. Crucially, the procedure for enforcement of decisions made in another member state is governed by the law of the member state of enforcement.74 Enforcement has to be the same as if it were an order originally made by the country where enforcement is taking place, rather than by another country. Therefore an English maintenance order being enforced in, for example, Portugal uses Portuguese enforcement provisions and law. If Portugal were to have greater enforcement powers than England where the maintenance order was made, then those greater enforcement powers can be used. If Portugal has lesser enforcement powers than England, the greater English powers cannot be exported to Portugal. An English maintenance order being enforced in Portugal has via MR exactly the same enforcement powers and opportunities as a Portuguese maintenance order being enforced in Portugal. 71 MR, Art MR, Art 39 and contrast r MR, Art MR, Art September 2012

29 65. Conventionally for EU legislation, under no circumstances may a decision given in a member state be reviewed as to its substance in the member state in which recognition, enforceability or enforcement is sought.75 This preserves the integrity of the member state making the original decision. 66. Articles cover access to justice, legal aid. Parties involved in a dispute covered by MR are entitled to what is referred to as effective access to justice 76 to an applicant who is resident in the requesting member state. To install such effective access, member states have to provide legal aid. 67. The Central Authorities have a much expanded role under MR, including transmitting and receiving applications and initiating or facilitating proceedings.77 Transitional provisions between BI and MR are set out in Art Transitional arrangements therefore come into several categories: BI itself78 continues to apply to proceedings for recognition and enforcement already underway on 18 June All English outgoing maintenance orders etc made before 18 June 2011, or made after but in proceedings commenced before 18 June 2011 are subject to the secondary process, enforcement through registration. As this is the position anyway for all outgoing maintenance orders, it does not make any material difference. All incoming orders from EU countries where the orders etc are before 18 June 2011, or after 18 June 2011 but in proceedings commenced before 18 June 2011, are treated as if they had been made in the non-applicable law countries, i.e. the UK and Denmark, and require enforcement through the registration process. 75 MR, Art MR, Art MR, Art 51(1) 78 Chapter III of BI and App September 2012