This is not straightforward. The first point to establish is whether you are seeking to enforce a maintenance order in a European Member State or in what EU regulators call “third states.”
Although we can advise on both situations, this blog will deal only with the enforcement of a UK maintenance Order in an EU Member State using the provisions of the EU Maintenance Regulation.
The EU Maintenance Regulation is a directly applicable EU Council regulation which came into effect in June 2011 replacing provisions concerning maintenance obligations in another EU Regulation known as Brussels I.
The aim of the EU Maintenance Regulation is to provide common rules within Europe for the recovery of maintenance across EU Member States by way of a simple yet effective procedure.
The EU Maintenance Regulation applies to maintenance obligations that arise from a “family relationship, parentage, marriage or affinity” but does not define what such terms mean. The English courts have taken a very generous approach to what they consider to be “maintenance” to make maximum use of the Regulation – giving it a wider scope for enforcement purposes than English law. In Kremen v Agrest Mostyn J held that the final award was “maintenance” for the purposes of the Regulation although it included not only maintenance monthly payments, but also lump sum orders to discharge debts, and school fees orders.
This approach fits with Recital 11 of the EU Maintenance Regulation which states that a maintenance obligation should be “interpreted autonomously.” From Brussels I case law we know that “maintenance” can be interpreted widely, and:
- the label applied to it in domestic law is not decisive;
- it does not matter if “maintenance” is in fact ordered in the form of a lump sum payment, or property transfers – the purpose of the payment is more important than its form.
The EU Maintenance Regulation divides its provisions into two parts: Articles 17 to 22 which are relevant to Member States bound by the 2007 Hague Protocol, which is all States except the UK and Denmark; and Articles 23 to 38 which are relevant to decisions made by Member States not bound by the 2007 Hague Protocol, being the UK and Denmark.
Articles 23 to 38 are therefore the pertinent provisions to follow if you are seeking to enforce a UK maintenance order in another EU Member State. These provisions provide that the maintenance order will be recognised and enforced by the Member State open to enforcing such an order. This is usually the Member State in which the party obliged to pay under the maintenance order is habitually resident. However, that party can make an objection in the enforcing courts on the basis that the decision is:
Manifestly contrary to public policy in the Member State where recognition is sought; or
The paying party was not present when the relevant order was made; or
The relevant Order is irreconcilable with another order between the same parties another jurisdiction.
However, as the UK is not a party to the provisions of the 2007 Hague Protocol an order originating from it (or from Denmark) has to be declared to be enforceable in the Member State in which enforcement is sought before it can be enforced. To obtain a declaration of enforceability, the application must comply with Articles 28 and 29 of the EU Maintenance Regulation, which are not very burdensome. Provided these formalities are complied with, pursuant to Article 30, the order will be declared enforceable within 30 days. Note, however, that the Regulation also has provisions setting out how the declaration of enforceability can be appealed.
After a declaration of enforceability is granted, the order will then be enforced as any order usually would be in the enforcing Member State. Procedurally, the law of the enforcing Member State will apply, and any substantive issues of law will be determined in accordance with the law of the payee’s habitual residence.
An EU Member State enforcing an England maintenance order will therefore usually apply English law. However, many Member States consider enforcement to be a purely procedural matter and not involve substantive issues of law – in which case the law of the enforcing Member State will apply.
Helpfully, it is not necessary for the party who benefits from the maintenance order being enforced to have a base, address or lawyer in the state of enforcement.
Finally, if your issue is enforcing a EU maintenance order in the UK, despite the UK not being a Member State bound by the 2007 Hague Protocol, English law provides that a maintenance decision made in any Member State other than Denmark is directly enforceable in England and Wales in exactly the same way as an English order. This effectively aligns the UK with the 2007 Hague Protocol bound States which have with an absolute obligation to recognise and enforce a maintenance decision from other 2007 Hague Protocol bound States.
Although these provisions are clear, enforcement in other EU Member States is not always straightforward. Clarion can help you with this.
If you have any queries or questions please do not hesitate to contact Justine Osmotherley on 0113 336 3323 or firstname.lastname@example.org
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.