The EU Maintenance Regulation – A Simplification

Where are we a year and a bit on?  Since 18^th June 2011 we have been living, along with 26 other EU Member States, with a new Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions relating to maintenance obligations.  Although its proper name is the Council Regulation (EC) 4/2009, we know it better as the EU Maintenance Regulation.

The UK and Denmark are not signatories to the Regulation and therefore in relation to applicable law, England will decide on all maintenance obligations in accordance with English Law.  Otherwise the other Member States in general have to apply the applicable law as determined by the 2007 Hague Protocol which normally states that the law relating to the dispute shall be the state of the creditor’s habitual residence. However a controversial part of the Regulation is that the parties themselves may decide on jurisdiction and the determining state must apply that. This is controversial as this decision may be reached without any legal advice, and therefore the ‘stronger’ party financially may secure potentially a more favourable jurisdiction for themselves.

The Maintenance Regulation was brought in in order for a Maintenance Creditor to automatically enforce in one Member State a decision made in another Member State without having to go through any formal registration process.

What are the jurisdictional requirements?

These are set out in Articles 3-7.

Article 3 says the court has jurisdiction if the maintenance creditor or defendant is habitually resident there, or where the court would have the power to deal with matters of parental responsibility or marital status. Therefore the court can only make orders for maintenance if the habitual residence test is satisfied, or where there are current divorce proceedings in train. The exception is where the divorce jurisdiction is based upon sole domicile.

Article 4 allows the parties to choose their jurisdiction except in matters concerning a child.

Article 5 provides that a court where the defendant makes a submission has jurisdiction except where that submission is merely an objection to that jurisdiction.

Article 6 supplies a sort of ‘mop up’ jurisdiction on the basis of nationality, where no other Member State would have power to hear the case under Articles 3-5.

Article 7 deals with the extremely unusual situation, called ‘forum necessitatis’ where a third state with whom the parties have some connection must hear the matter, because it is impossible for them to be heard or concluded in the most obvious Member State.

What is ‘Maintenance’?

In Article 1 maintenance itself is not defined but it is states that the Regulation applies to: “maintenance obligations arising from a family relationship, parentage, marriage or infinity”, which would cover spouses, civil partners, parents and children but also could cover other wider relationships which are not necessarily recognised in English Law however we must automatically enforce them in our Courts.

Maintenance can also encompass lump sum payments if they intended as support, but not if they are merely effecting a division of matrimonial property.

A particular area of concern for divorce lawyers is the different interpretation across Europe as to what actually constitutes maintenance. Remember that if a maintenance decision has already been made in one Member State, it cannot not be dealt with again in another, save for enforcement purposes. Is a pension sharing order (PSO) ‘maintenance’? I think there is a high likelihood that it could be construed as such, therefore precluding a maintenance creditor from issuing an application for a PSO in a different Member State, even where, as In England, only an English order is capable of being implemented by an English pension trustees. In general, foreign PSO cannot be enforced against an English pension fund, without more.

An additional worry must be how Part III MFPA 1984 applications could be affected. If an order is made in another Member State following a foreign divorce there, it seems rational that an economically weaker and disadvantaged spouse may find themselves unable to avail themselves of the English court’s power to redress the balance.

What counts as an Enforceable Decision?

Under Article 2 a decision capable of enforcement can be called a decree, order or judgment (including cost judgments).  However it also covers “authentic instruments”, what we would call notarised documents.  This is the reason therefore why this Maintenance Regulation could cover a Pre-Nuptial Agreement made between two parties, one of whom without any legal advice, notarised in the usual way in many European countries.  This could have been signed on the eve of a wedding and there could have been no disclosure. Despite all this, that agreement is (probably) automatically recognised and enforced by the English Courts.  This seems to be the real danger under the Regulation.  Also automatically enforceable would appear to be decisions of the Child Support Agency.

How would a decision be recognised & enforced?

For signatories to the 2007 Hague Protocol on Applicable Law, Article 20 sets out that a decision made in one Member State is automatically recognised and enforceable in another without the need for registration. There are limited exceptions.

For non-Protocol States (UK & Denmark), again there is no registration requirement, but a decision need not be recognised if it is manifestly contrary to public policy in that State, with some other limitations. To enforce an English order in another EU State our court must provide a Declaration of Enforceability before the creditor can proceed to direct enforcement. All other EU States apart from England and Denmark can proceed without taking that step. This is set out in Article 25.

Enforcement is dealt with under local laws. Importantly, each State’s Central Authority will cover the costs of implementing the Regulation, and legal aid is available.

Conclusion

The EU Maintenance Regulation presents a challenge to divorce solicitors, even though its very laudable aim of simplifying recognition and enforcement may have been achieved. This is because an unintended consequence is the quite dramatic effect on maintenance. In particular any prior agreement between the parties could end up preventing either of them applying for maintenance in another Member State, which could be very hard on the less well-off spouse. The restriction on applying for maintenance where a divorce petition is based upon sole domicile is inevitably going to catch some family solicitors out.

At the time of writing this, I am aware of several decisions pending in Member States which will give us greater clarification as to how the Regulation will work in practice. I will put further updates on my website when these are reported.

© Punam Denley, August 2012

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers. Please contact us on 0845 658 6639 or by email at pd@blanchards.co.uk