Family Law News - July 2011

HARMONY IN EUROPE? AN ENGLISH PERSPECTIVE

By Vanessa Mitchell and Victoria Nottage

On 18 June 2011, the EU Maintenance Regulation1 (EC No 4/2009) came into force, replacing what has colloquially been known as 'Brussels I' (Council Regulation No 44/2001) for all issues arising in the family context which relate to maintenance.

The primary aim of the Maintenance Regulation is to simplify the enforcement of maintenance orders between EU Member States by abolishing the requirement of a declaration of enforceability as between signatories to the Hague Protocol.2 However, the effects of this Regulation are not quite that simple, and it is worth noting that the Regulation contains provisions relating to jurisdiction and applicable law which are more wide reaching.

Jurisdiction

A Member State will have jurisdiction to make a maintenance order if the maintenance creditor and debtor are both 'habitually resident' in that country or in the event that they have related proceedings for divorce or parental responsibility in that country already. It is also possible for spouses/parents to elect the country which should have jurisdiction to deal with maintenance issues, in writing (even by email), as long as there is a connecting link (set out in the Regulation) with the country chosen, whether at the time the pre-nuptial agreement was signed (if they have one) or at the time the proceedings are brought.

Hague Protocol and Applicable Law

In addition to the choice of court, by adopting the Hague Protocol, which has been signed by all the Member States apart from the UK and Denmark, the Maintenance Regulation also contains rules which will determine the law that will be applied when maintenance is sought pursuant to the Regulation. Again, it is possible for parties to elect the applicable law in a similar way to jurisdiction, as outlined previously. However, it is important to note that, as the UK is not a signatory, the English Court will continue to apply its own law to any dispute before it.

Recognition and Enforcement

A key feature of the new Regulation is the automatic recognition and enforcement of maintenance orders in EU Member States which, in theory at least, should make it easier to enforce orders against a reluctant payer. There is no longer a requirement for a party with the benefit of a maintenance order to obtain a declaration of enforceability, nor is it possible for another signatory State to oppose recognition. However, because the UK decided not to opt into the Hague Protocol (which has far-reaching effects concerning the introduction of rules of applicable law), maintenance orders of the English Court will not be directly enforceable elsewhere. The practical application is that Member States will be able to refuse to recognise an English order, for example, in circumstances where it is seen to be contrary to their public policy or where the maintenance order has been made in default of appearance by the paying party.

What the Regulation does not address

Regrettably, the Regulation misses the opportunity to address the vexed question of what 'maintenance' encapsulates. As a general principle, the English Court adopts a holistic approach to the resolution of financial issues relating to a divorce; considering the assets, income and all other circumstances of the case in the...