Enforcement And Variation Of Maintenance Across Europe - CJEU Response

On 18 June 2011, Council Regulation 4/2009, more generally known as the "Maintenance Regulation" took effect across EU Member States. The underlying objectives include: to accelerate and simplify enforcement of maintenance decisions across EU Member States; to guarantee the effective recovery of maintenance; and to remove all obstacles to recovery.

As a result of the Regulation, maintenance decisions given in one Member State must be recognised and capable of being enforced in another Member State without any special procedure being required.

The purpose of the Maintenance Regulation One of the key benefits of the Maintenance Regulation is that it allows a creditor spouse, who has a maintenance order in their favour, to enforce that order against a debtor who has moved to a different Member State, without having to obtain a new order there. Furthermore, if the debtor spouse seeks to vary the order, and the creditor has remained habitually resident in the Member State where the original order was made, then (save for limited exceptions) any application to vary must be made in that original Member State. These provisions ensure much needed protection for international families.

As the Maintenance Regulation is directly applicable, Member States are permitted to enact local laws in order to implement its terms, but cannot introduce legislation which conflicts with it.

EU Maintenance Regulation and domestic law On 18 June 2011, the Civil Jurisdictions and Judgments (Maintenance) Regulations (2011) ("CJJMR") were implemented as part of domestic English law, in part to provide a mechanism for the implementation of the Maintenance Regulation. However, since its introduction, there has been uncertainty as to the correct procedure to be used when trying to enforce foreign maintenance orders in England.

The issue (arising from seemingly conflicting domestic law) is whether a maintenance creditor is permitted to make an application for enforcement directly to the Central Family Court (if the application is to be made in London), or whether it is necessary for such applications to be transmitted via the Central Authority (which in England and Wales is the Reciprocal Enforcement of Maintenance Order Unit (REMO) as designated by the Lord Chancellor).

Transmitting applications through the Central Authorities almost certainly leads to delay and further cost, which is contrary to the objectives of the Maintenance Regulation.

MS v PS In the recent case of MS...