By Kane Deitsch
NOTE: the United Kingdom, at the time of this article’s writing in June 2023, has had its bid to re-join the 2007 Lugano Convention rejected by the European Commission. If and when the UK’s application is successful, the legal framework surrounding the enforcement of maintenance orders will change substantially from the position discussed below. Care should therefore be taken by practitioners in clarifying the current status of the UK’s treaty obligations when advising their clients.
Introduction
The United Kingdom (UK) formally left the European Union (EU) on 31 January 2020. This was followed by a transition or ‘implementation’ period whereby the UK remained subject to certain EU rules and regulations. This period concluded on 31 December 2020. Following this date, the legal apparatus for cross-border claims in a wide variety of areas has changed significantly. This article does not consider the law affecting what are sometimes known as ‘transition cases’ i.e. claims which were brought prior to 31 December 2020
For family practitioners, the effect of the foregoing is that the law and procedure governing enforcement of maintenance orders internationally has shifted ground. This article focuses on enforcement between the UK and EU member states post Brexit.
The legal framework as it was
Experienced family law practitioners will need no reminder of the Brussels II Regulation 1347/2000 (B2R) and the associated Maintenance Regulation 4/2009 (MR) which provided the framework for the reciprocal enforcement of family law orders within the EU (and beyond in certain aspects). These provided a relatively straightforward method of enforcement between EU member states. Issues of applicable law and jurisdiction were also encompassed by these regulations and B2R, generally speaking, operated on a lis alibi pendens basis i.e. a court is permitted to refuse jurisdiction where a parallel claim is pending in another state. This is also expressed within the Brussels Regime as the court ‘first seized’ obtaining jurisdiction.
The present
The B2R and MR are no longer applicable to new claims brought after the transition period expired on 31 December 2020. The new regime governing enforcement of maintenance orders between the UK and the EU is now found within the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Convention). The Hague Convention was given direct force of law in the UK following Brexit via the Private International Law (Implementation of Agreements) Act 2020 (PILA 2020) which in turn amended the Civil Jurisdiction and Judgments Act 1982. The full text of the Hague Convention is reproduced in Schedule 4 PILA 2020.
The UK had been a signatory to the treaty by virtue of its EU membership. Following Brexit, the UK on 28 September 2020 became a signatory in its own right.
Much of the substance of the MR was modelled on the contents of the earlier Hague Convention and there are broad similarities between them. A key difference, however, is that the issue of applicable law is not addressed in the Hague Convention (rather it is addressed in the adjunct Hague Protocol ratified at the same time). Moreover, the Hague Convention does not contain any direct jurisdiction provisions (save for the limited criteria in Article 20). In that sense, the MR took a step further in providing closer integration.
Procedure for enforcing a maintenance order abroad
The first port of call when seeking to enforce a maintenance order made in England & Wales abroad is r34.39, r34.40 and PD34A FPR 2010. These rules mirror the procedure found in Articles 11 and 25 of the Hague Convention. In summary: individuals must contact the Maintenance Enforcement Business Centre (MEBC) and apply in writing providing the details listed under Article 11. Once that is done, a certified copy of the maintenance order will then be sent to the receiving state along with a certificate that contains statements confirming enforceability and proper notice as well as an abstract of the relevant decision.
The MEBC will help guide applicants through the process and have various positive obligations to do so under Articles 6(2), 14 and 15.
For ‘inward’ enforcement i.e. applications made by parties in other Hague Convention countries to enforce foreign maintenance orders in the UK, the process is similar in that the relevant application procedure set out by the designated central authority in the state of origin should be followed and a certified copy of the maintenance order with a certificate (if required) will be sent to the designated authority in the UK.
It should be noted by respondents that an order, if the requested state does not invoke any of the grounds found under Article 22, cannot be varied or revoked. The receiving court cannot therefore question the merits of the certified order.
The definition of ‘maintenance’ and its effect on enforcement
For UK practitioners, ‘maintenance’ generally evokes the concept of periodic payments payable to a spouse or child (the latter of which is typically administered by the Child Maintenance Service). One would therefore naturally assume that enforcement of ‘maintenance orders’ under the Hague Convention would be restricted to orders, or parts thereof, that grant periodic payments. Not necessarily so. Paragraph [65] of the explanatory report accompanying the Hague Convention explains that:
‘The possibility of including a definition of “maintenance” was considered but, in the end, rejected. In addition to periodic payments, maintenance may in different systems for example include capital (lump sum) payments or property transfers. It was not suggested that maintenance should be restricted to periodic payments. Indeed it was accepted that any monetary or property order may constitute a maintenance order where its purpose is to enable the creditor to provide for himself or herself and where the needs and resources of the creditor and debtor are taken into account in determining what order is appropriate’.
Accordingly, it is possible that an order which directs the transfer of property or payment of a lump sum may constitute ‘maintenance’ and therefore become enforceable under the Hague Convention. The leading case on this point in English law is Moore v Moore [2007] EWCA Civ 361. Thorpe LJ, commenting on a CJEU judgment, summarised at [80]:
… Payment of a lump sum or transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse … payment of a lump sum or transfer of property which serves only the purpose of a division of property or compensation for non-material damage is not in the nature of maintenance … whether a claim relates to maintenance will depend on its purpose, and in particular whether it is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, or where the capital sum set is designed to ensure a predetermined level of income … where the provision is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under Brussels I’.
‘Maintenance’ might therefore be said to include orders for lump sum payments or transfers of property when provided on a ‘needs’ basis. Exactly how ‘needs’ have been quantified by the English courts has been surprising to say the least – particularly in big money cases. An example of this is found in FRB v DCA (No 2) [2020] EWHC 754 where Cohen J at [224] – [227] said:
‘As the order was being finalised I have been asked to provide a figure for the value of the “needs” of W and C for the purposes of enforcement under the Maintenance Regulations and the Lugano Convention … together these total £41,046,388. I assess for the purposes of enforcement under the Convention this figure to be the minimum to meet the “maintenance” of W and C’.
This should be contrasted to Sir Jonathan Cohen’s decision in JM v KK [2021] EWFC 54 at [42]where he declined to interpret a ‘needs’ based redistribution of assets as ‘maintenance’:
‘I must arrive at a fair division of the matrimonial assets. Payment of a lump sum or transfer of property is not necessarily in the nature of maintenance as set out in the third proposition extracted by the Court of Appeal in Moore at paragraph 80’.
The perceptive reader will have noticed that the above decisions all concern ‘maintenance’ within the context of the Brussels Regime. It remains to be seen how the English courts will interpret the scope of ‘maintenance’ within the framework of the Hague Convention. At the time of writing, this author is not aware of any reported case law that has dealt with this point and provided definitive guidance. This is perhaps unsurprising given the short period of time that has elapsed since the transition period ended.
Conclusion
Ambiguities surrounding the precise interpretation of legal words and phrases is certainly an anathema to practitioners striving to provide clear and certain advice to clients. What is clear, however, is that maintenance orders involving child or spousal support in the form of periodical payments are enforceable between the UK and EU member states as signatories to the Hague Convention. What is less clear is the extent of enforceability of orders for lump sum payments or transfers of property. The position is likely to become clearer with the passage of time as cases come before the English courts that provide the opportunity for ambiguities to be resolved.
If you require advice, or representation, you can contacting the clerks on 01483 539131 or emailing them at clerks@guildfordchambers.com
Disclaimer
This article has been provided free of charge for information purposes only. Although care is taken to ensure the information is accurate no responsibility is assumed by the author or any member of Guildford Chambers for reliance on the content or the accuracy of such content. The information, and/or commentary, does not constitute legal advice and if you have a legal dispute you should seek advice from a solicitor or barrister about your case. Accordingly, no member of Chambers shall be responsible for any action you take or refrain from taking in reliance of anything in this article or case summary.
