Support from afar

From 18 June 2011, the provisions of Council Regulation (EC) No 4/2009 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Co-operation in Matters relating to Maintenance Obligations (“the Maintenance Regulation”) will apply.

What is it?

In essence, the Maintenance Regulation replaces Brussels I (Council Regulation (EC) No 44/2001) in respect of family law maintenance obligations.

Its aim, per recital 9, is to permit a maintenance creditor “to obtain easily, in a member state, a decision which will be automatically enforceable in another member state without further formalities”.

While not defining the term “maintenance obligation”, the Regulation covers “all maintenance obligations arising from a family relationship, parentage, marriage or affinity”. It applies to child support orders, but not to assessments of domestic child support agencies. It does not apply to divorce and nullity proceedings, jurisdiction in which continues to be governed by Brussels II (Council Regulation 2201/2003).

The Regulation contains provisions on jurisdiction, conflict of laws, recognition and enforceability, enforcement, provision of legal aid, and co-operation between central authorities. The UK has not opted into all of its provisions.

Grounds of jurisdiction

The Maintenance Regulation extends the grounds of jurisdiction contained in Brussels I. Under Brussels I, the court with jurisdiction was the court of the member state in which the maintenance debtor or creditor resided. If the various grounds of jurisdiction did not result in any member state having jurisdiction, national law applied.

The Regulation introduces a new, subsidiary ground of jurisdiction, permitting the creditor to raise in “the court that has jurisdiction for proceedings regarding the status of a person or parental responsibility provided that the matter concerning maintenance is related thereto”.

In a situation where none of the parties resides in the EU and no divorce or parental responsibility proceedings are pending in a member state, an application for maintenance may be brought before the court of a member state of which both parties are nationals (or domiciled, in the case of the UK and Ireland).

The Regulation goes even further, however, providing that if no other member state has jurisdiction and proceedings cannot reasonably be brought or conducted in a third (non-EU) state, the dispute may be heard in a member state which has “sufficient connection” with the dispute.

It also contains provisions defining the seising of jurisdiction, lis pendens, and related actions.

Prorogation in agreements

In terms of Brussels I, parties to a pre- or post-nuptial agreement concerning maintenance could designate any court with which there was a connection as the court having jurisdiction to deal with a maintenance dispute arising under the agreement.

The Maintenance Regulation, however, deals with the matter of prorogation in greater depth and bears careful reading for anyone engaged in drafting such agreements.

Any attempt to prorogate jurisdiction where the obligation concerns a child under 18 is invalid. Otherwise, parties may designate that the courts of a particular member state shall deal with a maintenance dispute, provided it is:

• the court of a member state in which one party is either habitually resident or a national; or
• the court which has jurisdiction to settle the parties’ dispute in matrimonial matters; or
• the court of the member state in which the parties last had a common place of residence for at least one year.

These conditions have to be met either at the time the agreement is concluded or the time the court is seised.

Choice of applicable law

This is the bit of the Regulation to which the UK did not subscribe. In other member states it is possible not only to nominate the courts of a particular member state as having jurisdiction to deal with a maintenance dispute, but also to choose which member state’s law shall be applicable. There are member states that already adopt the doctrine of applicable law to a considerable extent, for example in relation to financial provision on divorce. However, this was felt to be inimical to the approach of the UK courts, which apply only local law. Accordingly, article 15 of the Regulation shall not apply in the UK.

Easier enforcement

The most significant achievement of the Maintenance Regulation is the abolition in most member states of exequatur, i.e. the requirement for a declaration of enforceability before an order can be enforced in another member state. However, this is closely bound up with the issue of applicable law, with the result that exequatur has now been abolished in all member states other than the UK and Denmark. Consequently, any maintenance order emanating from the UK will require a declaration of enforceability before it can be enforced in a different member state. However, a decision issued in another member state will be enforceable without the need for a declaration from a UK court.

Rhona Adams, Partner, Morton Fraser LLP