Part V Family Law, 24 Financial Relief
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara WalkerEdited By: Paul Torremans, James J. Fawcett
- Choice of law clauses — Marriage — Matrimonial causes — Jurisdiction under the Brussels-Lugano Regime
In many petitions for financial relief, the parties are not only, or indeed primarily, concerned with the determination of their personal status, but are also concerned with the powers of the court to make orders as to financial support, rights to the family home and property, and the like.1 These forms of relief, often ancillary to that obtained in the main proceedings, give rise to three main questions of private international law—the jurisdiction of the English court; the power to order relief after a foreign divorce/dissolution, annulment or legal separation; and the recognition and enforcement of foreign decrees or orders in relation to financial relief.2
As the types of relief available to the parties to a marriage or civil partnership are varied, the jurisdictional issues raised thereby must be considered separately. The position is complicated by the fact that general jurisdiction over claims for maintenance is conferred by the Maintenance Regulation,3 the Lugano Convention and indirectly by the 2007 References(p. 1060) Hague Convention.4 There are also special rules for married couples under Part III of the Matrimonial and Family Proceedings Act 1984, and corresponding rules for civil partners in terms of section 72(4) and Schedule 7 to the Civil Partnership Act 2004,5 as to the powers and jurisdiction of the English courts to grant financial relief following the obtaining of a foreign divorce/dissolution, annulment or legal separation. It is necessary, therefore, to examine separately the jurisdictional rules governing the various heads of English financial relief, those which are uniform within the European Union and the EFTA States under the Maintenance Regulation and Lugano Convention, before considering the position under Part III of the 1984 Act.
(a) General jurisdictional rules
(i) Relief ancillary to an English decree of divorce, nullity or judicial separation
On granting a decree of divorce, nullity or judicial separation,6 or at any time thereafter, the English court may make a variety of financial provision orders,7 eg an order for the payment of periodical payments, which may be ordered to be secured, or that a lump sum shall be paid by one spouse to the other, or that similar payments may be made by one spouse to or for the benefit of a child of the family,8 or that a spouse shall transfer to or settle property on the other spouse or a child or for the benefit of a child,9 or the court may order the variation of any settlement made on the parties to the marriage or order the extinction or reduction of the interest of either party thereunder.10 The court also has power11 to restrain or set aside transactions intended to prevent or reduce relief and will, in appropriate circumstances, exercise this power in relation to immovables abroad.12
The court has jurisdiction to make such orders and grant such ancillary relief whenever it has jurisdiction in the main proceedings for divorce, nullity or judicial separation.13 This means, primarily, when the court has jurisdiction under Article 3 of the Brussels II bis Regulation,14 ie where:
(a) both parties are habitually resident in England and Wales;
(b) both parties were last habitually resident in England and Wales and one of them still resides there;
(c) the respondent is habitually resident in England and Wales;
(d) in the event of a joint application, either party is habitually resident in England and Wales;References(p. 1061)
(e) the applicant is habitually resident in England and Wales if s/he resided there for at least a year immediately before the application was made;
(f) the applicant is habitually resident in England and Wales if s/he resided there for at least six months immediately before the application was made and s/he has his/her domicile there; or
(g) both parties are domiciled in England and Wales.15
On the basis of jurisdiction in the main suit, an order for periodical payments has been made against a husband domiciled and resident in France and with no assets in England but where there was a real probability of his appearing before the English courts.16 As the power to make orders for ancillary relief is discretionary,17 the court will decline to make such an order where to do so would be quite ineffective.18 The fact that there has been a legal separation abroad which is recognised in England does not prevent the English court from granting relief ancillary to a later English divorce petition.19
The power to make orders for ancillary relief may be exercised at any time after the granting of the main decree,20 and there is authority for the opinion that, so long as there was jurisdiction in the main suit, ancillary relief may still be granted notwithstanding that the jurisdictional ground in the main suit no longer exists.21
It will be recalled that the jurisdiction of the English courts to grant decrees of divorce, nullity and judicial separation is subject to a discretionary power in the court to stay the proceedings if similar proceedings are continuing in another, non-European Union jurisdiction.22 If English proceedings are stayed because similar proceedings are continuing in another jurisdiction in the British Isles,23 the English court does not have power to make, inter alia, orders for periodical payments or the payment of lump sums, except in circumstances of urgency.24 Furthermore, any order, other than a lump sum order, already made in connection with the stayed proceedings ceases to have effect three months after the proceedings were stayed.25 If an order for periodical payments or any provision relating to a child has been made in the other British proceedings, then any English order made in connection with the stayed English proceedings in relation to the same matters shall cease to have effect and no such order may be made.26
References(p. 1062) (ii) Failure to provide reasonable maintenance
The court has power to order periodical payments, which may be ordered to be secured, or lump sum payments to be made to a spouse or to or for the benefit of a child if the other spouse has failed to provide reasonable maintenance.27 This relief may be sought during the continuance of the marriage, during the joint lives of the spouses,28 and is not ancillary to a petition for divorce, nullity or judicial separation. Indeed it assumes that the spouses are still married, though such relief may be granted after there has been a decree of judicial separation.29 The court can only consider applications under this section if it has jurisdiction under the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.30
The court has power to order alterations, by variation or revocation, to a maintenance agreement on application by either of the parties thereto.31 The court must be satisfied that the financial circumstances of the parties have changed or that the agreement fails to make proper arrangements for a child of the family. Jurisdiction is generally based on the domicile or residence in England of each party to the agreement at the time of the application.32 However if an application, or part of an application, relates to a matter where jurisdiction falls to be determined by the requirements under the Maintenance Regulation then the requirement as to domicile or residence does not apply to that matter.33 Where the Maintenance Regulation applies the court may not hear an application unless it has jurisdiction to do so under that Regulation.34
(a) Under the Domestic Proceedings and Magistrates’ Courts Act 1978
The family court has power under Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 to order either party to a marriage to make financial provision for the other spouse or for a child of the family.35 The domicile of the parties is irrelevant to the jurisdiction of the family court.36 All other issues remain to be determined, as they were with the forerunners of this Act, by the common law, subject to the Maintenance Regulation where applicable.
References(p. 1063) (b) Under the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972
If the defendant resides in a country outside the United Kingdom, the English courts may have jurisdiction to make a maintenance order against him if the circumstances are such that either the Maintenance Orders (Facilities for Enforcement) Act 192037 or the Maintenance Orders (Reciprocal Enforcement) Act 197238 is applicable.39 Both these statutes deal with the problem of reciprocal enforcement of maintenance orders. As the basis of the operation of both statutes is reciprocity, they both deal with the recognition of foreign maintenance orders as well as the jurisdiction of the English court, but only the latter aspect is considered here.40
The 1920 Act applies only to those Commonwealth countries to which it has been extended by Order in Council. If a defendant is resident in such a country, then the English family court may make a provisional order against him in his absence,41 as if that person had been habitually resident in England and he had received reasonable notice of the date of the hearing of the application, even though the applicant’s basis of complaint did not arise in England.42 A copy of such an order is then sent by diplomatic channels to the Commonwealth country where the defendant resides with a view to its being confirmed by the courts of that country. In other words, there are proceedings in England for a provisional order, followed by proceedings in the foreign country for confirmation thereof.
Part I of the 1972 Act establishes a similar procedure but it is wider in scope. It applies to all countries with whom reciprocal agreements have been reached and not just Commonwealth countries,43 and it contains a wider definition of the type of orders to which it applies than does the 1920 Act.44 Furthermore, the “shuttlecock” procedure of provisional order in one country followed by confirmation in the other also applies to variation and revocation of maintenance orders.45 Such variation or revocation may be made either by the court which made the original provisional order or the court which confirmed it.
Part II of the 1972 Act gives effect in the United Kingdom to the United Nations Convention on the Recovery Abroad of Maintenance (1956). If a person, usually the wife, in the United Kingdom claims maintenance from a person “subject to the jurisdiction” of a convention country,46 she makes an application through an officer of the family court.47 This application References(p. 1064) is forwarded through diplomatic channels to that foreign country and there are no judicial proceedings in England. In the converse case, where a foreign application is received in England by the family court,48 the court proceeds just as if the complainant was before the English court.49
Under section 40 of the 1972 Act,50 special recognition arrangements may be made with countries designated by Order in Council, applying modified versions of either Part I or Part II to such countries. Under this provision, there are, for example, reciprocal arrangements applying an amended version of Part I51 to the Republic of Ireland,52 to a majority of the states in the USA,53 and to countries which are parties to the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.54 A modified version of Part II has also been applied to certain states in the USA.55
(b) Jurisdiction under the Maintenance Regulation
Prior to June 2011 the recovery of maintenance within the EU was regulated by the Brussels/ Lugano system.56 The jurisdictional rules under the Maintenance Regulation differ from those under the previous system, therefore the Regulation and the Lugano Convention will be dealt with separately. Denmark is not officially party to the Maintenance Regulation but has agreed to implement the Regulation to the extent that it amends Brussels I.57
(i) What are maintenance orders?
Article 1 of the Maintenance Regulation declares that: “This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity.” In order to determine whether a ‘family relationship’ exists English courts should apply the common law, which may include private international law rules.58 The concept of maintenance is not defined in the Regulation, nor was it defined in Brussels I.59 Whether an application is to be regarded as a “maintenance obligation” depends on an autonomous interpretation of the term,60 derived from the judgments of the CJEU: “the label given to the claim by national law is not decisive”.61 “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 References(p. 1065) the needs and resources of each spouse 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.”62 Some assistance may be derived from De Cavel v De Cavel63 which illustrates that financial relief in its common form of periodical payments falls within the meaning of maintenance. There an order was made in the course of divorce proceedings for interim payments to be paid on a monthly basis. This was held to be within the Brussels Convention, but the court stressed that the payments were designed to support the spouse and were based on need. It has also been authoritatively stated that maintenance can include lump sum orders or transfers of property, if these are intended to ensure the support of a spouse.64 The fact that a financial relief order is ancillary to a divorce order or decree or other judgment (such as parental responsibility) outside the Maintenance Regulation65 does not mean that the financial relief order is excluded. Indeed, specific mention is made of such a case in Articles 3(c) and (d), and 4(c)(i).
Applying these criteria to the various financial orders that can be made by English courts, it is clear that financial orders (periodical or lump sum) made during the subsistence of a marriage, both for a spouse and for children being designed for support, must rank as maintenance orders within the Maintenance Regulation. The position where there is a divorce, or annulment, is more difficult. Financial orders for periodical payments to be made to a child or spouse are designed to support that person and must, therefore, be within the Regulation. The position in respect of lump sum payments is more problematical. Sometimes these are undoubtedly concerned with the support of a spouse, and will constitute “maintenance”;66 whereas other lump sum payments may be more in the nature of compensation for non-material damage or a division of matrimonial property67 and will fall outside the meaning of maintenance.68 Consequently, the latter will fall outside the special jurisdictional rules for “maintenance”.69 In Kremen v Agrest, where a lump sum payment was awarded, the High Court stated that £8.3 million of that sum was to be “certified as “constituting maintenance”.70 The remainder of the award was left undefined. Such non-maintenance lump sum payments are likely to fall outside the scope of the Maintenance Regulation altogether because they might not be considered to be “maintenance” for the purposes of the Regulation.
(ii) Jurisdictional rules
(a) General rules
A person who is seeking an order for financial relief which falls within the Maintenance Regulation has a number of jurisdictional options open to him. First, he can sue under References(p. 1066) any of the general jurisdiction provisions provided by the Regulation.71 This means that the English courts can have jurisdiction if the defendant,72 or the creditor is habitually resident in England.73 These provisions are pro-claimant, as the creditor can sue in either the state of their habitual residence or the state of the defendant’s habitual residence, whereas the defendant can only sue in the state of the creditor’s habitual residence.74 This is designed to protect the weaker party the maintenance creditor. The claimant’s habitual residence is an appropriate forum for trial, since a court situated there is best able to gauge the claimant’s needs.
There are two other general provisions and these relate to ancillary proceedings. Firstly, the court, which according to its own law, has jurisdiction to hear proceedings on the status of the person has jurisdiction for maintenance proceedings if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the domicile or nationality of one of the parties.75 This provision is important because, as we have seen, many applications for financial relief are made in conjunction with divorce proceedings, and there is a recognised practice of combining maintenance claims (which on their own are within the scope of the Maintenance Regulation) with main proceedings for divorce (which on their own are outside the scope of that Regulation). Whilst no definition is provided in the Maintenance Regulation of proceedings concerning status, there seems little doubt that the term will cover proceedings for divorce, nullity or judicial separation. So, an English court will be able to make a maintenance order in such proceedings against a respondent habitually resident in another Member State if the court has jurisdiction over the main proceedings on the basis of, inter alia, both spouses being domiciled in England.76 Secondly, the court, which according to its own law, has jurisdiction to hear proceedings on parental responsibility also has jurisdiction for maintenance proceedings if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the domicile or nationality of one of the parties.77 In most, if not all, cases this ancillary jurisdiction will be determined by the jurisdiction rules in Brussels II bis, which focus on the habitual residence of the child.78
A question that has been raised is whether the two ancillary provisions are mutually exclusive, in disputes where spouses are divorcing and making applications for child maintenance and spousal maintenance, or whether they are two separate and independent ancillary claims. This problem arose in an English-Italian case, where the spouses were Italian nationals who had lived in England for the majority of their married life and the children had been born and raised in England.79 The father initiated divorce proceedings in Italy on the basis of the parties’ common nationality,80 but it was clear that questions relating to parental responsibility had to be decided by the English courts.81 The question therefore was which court should deal with the maintenance dispute.82 The CJEU considered that the scope of the References(p. 1067) concept of ancillary matter could not be left to the discretion of national courts, and instead an autonomous and uniform application was required.83 The court pointed out that a literal interpretation of the Maintenance Regulation indicated that proceedings on status and parental responsibility were to be distinguished from one another,84 and that Brussels II bis also separates parental responsibility proceedings from divorce proceedings.85 The purpose of this separation was to ensure the protection of the best interests of the child on the basis of proximity.86 The court also considered that the valuation of child maintenance was intrinsically linked to parental responsibility,87 therefore decisions on child maintenance could only be ancillary to parental responsibility proceedings and not divorce proceedings where the two provisions resulted in conflicting jurisdictions.88
(b) Special rules
In addition to the general provisions, there are several special jurisdictional rules found in the Maintenance Regulation. Article 4 provides a choice of court clause, but the provision limits the parties’ choice. Under Article 4 the parties can select a court, or courts, in a Member State where one of the parties is habitually resident,89 or court(s) in a Member State where one of the parties is domiciled or a national.90 Where the maintenance obligation relates to spouses or former spouses, they can also designate the court which has jurisdiction to determine their matrimonial disputes, or the court of the Member State where they had their last common habitual residence, provided that that residence lasted for at least a year.91 Any agreement must be in writing,92 however in B v B Parker J held that a choice of court agreement does not have to be explicitly stated and it can be inferred.93 In B it was held that the agreement was clearly inferred from the prayers in the divorce petition.94 A choice of court clause does not apply to maintenance proceedings concerning children under the age of eighteen.95 Article 4 departs from the previous system where the provisions on prorogation of jurisdiction permitted the parties to select any court and covered child maintenance.96 Where the parties have attributed exclusive jurisdiction under the Lugano Convention, to a court of a Lugano Contracting State that is not an EU Member State, such as Switzerland, then the Lugano Convention will apply, except in cases where the maintenance obligation concerns a child under the age of eighteen years.97
Jurisdiction can also be based on the defendant’s submission. Article 5 provides that if “the defendant enters an appearance before a court, and the appearance is not to contest jurisdiction, then that court will be considered to have jurisdiction for the purposes of the Regulation”.98 The provision prevents the defendant from contesting jurisdiction at a later References(p. 1068) date, thus preventing delays, in cases where it appears that the defendant has already accepted the jurisdiction. In B v B the husband acceded to a maintenance pending suite order which required him to file a record of his means for the purpose of a maintenance hearing. This was deemed sufficient to meet the requirements in Article 5.99 The policy behind this basis of jurisdiction is party autonomy, as it is effectively “consent based jurisdiction”.100 Unfortunately this can disadvantage weaker parties, such as litigants in person, who do not consult a legal professional before entering an appearance.101 Where courts in more than one Member State have jurisdiction to hear the dispute under the rules in Articles 3 to 5, and multiple courts are seised, then the court first seised will have jurisdiction.102
The remaining two provisions extend the scope of the Regulation so it can apply to parties not habitually resident in the EU, and there is no geographic limitation in the Maintenance Regulation. Where no court has jurisdiction under Articles 3, 4 and 5 (so neither the defendant nor the creditor is habitually resident in the EU, and there is no ancillary jurisdiction) and no court of a Lugano Contracting State, that is not a Member State, such as Switzerland, has jurisdiction under the Lugano Convention the courts of the Member State of the common domicile of the parties shall have jurisdiction.103 There is also a forum necessitatis rule, which applies, on an exceptional basis, where there is no jurisdiction under Articles 3, 4, 5 and 6, and if proceedings cannot be brought in a third state with which the dispute has a closer connection.104 The provision is only applicable where the dispute has a sufficient connection with the Member State of the court seised.105
In B v B the court considered Article 7 as an alternative jurisdiction and held that it would be applicable if Articles 4 and 5 were not applicable.106 The English court was seised for divorce on the basis of the husband’s domicile which was considered to be a “sufficient connection”.107 The husband also intended to seek a residence order, in relation to his child,108 in England which would create an even closer connection.109 Parker J suggested that “exceptional” means by way of exception, rather than extraordinary.110 She concluded that proceedings could not be brought in Dubai, as Mrs B no longer had a residence visa, and could not obtain entry without one,111 and there was not a sufficient connection with Indonesia so proceedings could not be brought there.112 There was a connection with Ethiopia, but the connection was no closer than the connection with England, and as the wife had already committed herself to the proceedings in England it would not have been reasonable for her References(p. 1069) to be compelled to re-litigate in another jurisdiction.113 Parker J held that jurisdiction was established under Article 7 because proceedings could not reasonably be brought in a third State for the reasons outlined above. So the interpretation was based on the expectations of the parties in light of the husband’s behaviour, at least in relation to Ethiopia,114 rather than whether or not it was possible to bring proceedings. However even if Mrs B gained an order from the English Courts, she would have difficulty enforcing that order in the State where the husband is living (Indonesia at the time of the hearing) as the recognition and enforcement provisions in the Regulation will not apply.115
Maintenance orders are often varied and sometimes revoked. A court which made the original order may only vary or revoke it, at a later date, if it still has jurisdiction under the Maintenance Regulation. The Maintenance Regulation seeks to limit the jurisdiction of debtors when they bring proceedings to modify a decision.116 The general rule, when a maintenance decision has been given by the Courts in the state of the habitual residence of the creditor, is that modification proceedings cannot be brought in another state by the debtor for as long as the creditor remains habitually resident in the state where the decision was given.117 This rule does not apply where: the parties have designated a court in accordance with Article 4,118 or the creditor submits to an alternative jurisdiction meeting the requirements in Article 5.119 There are two further exceptions to the general rule and these apply where the state of origin is a Contracting State to the Hague 2007 Convention, but not an EU Member State. Jurisdiction will not be limited where the competent authority in the 2007 Hague Convention Contracting State of origin cannot, or refuses to, exercise jurisdiction to modify the decision.120 The final exception is where the decision given in the Hague Contracting State cannot be recognised or declared enforceable in the Member State where proceedings to modify the decision or have a new decision given are contemplated.121 However an English court will be unable to vary or revoke its own order if the maintenance creditor is not habitually resident in England at the time of the later proceedings, assuming that the maintenance debtor is still habitually resident in a Member State.122
(c) Jurisdiction under the Lugano Convention
As far as jurisdiction under the Lugano Convention is concerned,123 there are some differences between the Maintenance Regulation and the Lugano Convention. Jurisdiction under the Lugano Convention can be based on the domicile of the defendant if that person is domiciled in a Lugano Contracting State.124 Jurisdiction can also be based on the domicile or the habitual residence of the maintenance creditor.125 The Convention also has two provisions on ancillary proceedings, equivalent to those in the Maintenance Regulation.126 The References(p. 1070) choice of court provision applies where one of the parties to the agreement is domiciled in a Contracting State and the court designated is in one of the Contracting States bound by the Convention.127 The parties can select a court in any Contracting State, so the provision is broader than the equivalent provision in the Maintenance Regulation, as long as the maintenance dispute does not concern a child under eighteen years old.128
(d) Inter-relation of the Maintenance Regulation and the Lugano Convention with other bases of jurisdiction
Finally, there is the question of the inter-relation of jurisdiction under the Maintenance Regulation and the Lugano Convention with the other jurisdictional bases already discussed. Difficulty arises from the fact that, for example, the jurisdictional rules of the Maintenance Regulation provide that only the courts given jurisdiction under the Maintenance Regulation or the Lugano Convention, as appropriate, may exercise it. This means that, in the case of a defendant who is habitually resident in another part of the United Kingdom or in another Member State and the proceedings concern “maintenance” in the Regulation sense, there may be circumstances in which an English court is deprived of jurisdiction.
Where the Maintenance Regulation applies then the jurisdictional grounds provided by the Regulation will generally have precedence.129 If the creditor, or the debtor, is habitually resident in a Member State then the Regulation will almost always apply, apart from where there is a valid choice of court agreement under the Lugano Convention.130 However, if the creditor seises the court in the state of their habitual residence under Article 3(a) of the Maintenance Regulation and the debtor submits to the jurisdiction, then the court in the state of the creditors habitual residence will still have jurisdiction regardless of the choice of court agreement by virtue of Articles 3 and 5.
The Regulation also provides that it “shall not affect the application of bilateral or multilateral conventions and agreements to which one or more Member States are party at the time of adoption of this Regulation, without prejudice to the obligations of Member States under Article 307 of the Treaty”.131 Despite this, in all applications between Member States the Regulation shall take precedence over other conventions and agreements.132 Article 69(1) is relevant in disputes where one party is habitually resident in England and the other party is habitually resident in a 2007 Hague Contracting State (that is not an EU nor Lugano State) such as Ukraine. The 2007 Hague Convention provides that it shall not affect any international agreement, particularly those created by a Regional Economic Integration Organisation (REIO) and it cannot affect the recognition and enforcement provisions of the REIO, whether they were adopted before or after the conclusion of the instrument.133 However the Convention also states that it “shall not prevent the application of an agreement, arrangement or international instrument in force between the requesting State and the requested State, or a reciprocity arrangement in force in the requested State”.134 As this refers References(p. 1071) specifically to agreements or instruments in force between the two states in question then this would not provide for the application of the Maintenance Regulation, rather than the Hague Convention, where one party is habitually resident in England and the other the Ukraine. In light of the broad approach taken by the Maintenance Regulation the best option is to select the most effective rule available. If the maintenance debtor is habitually resident in England and the creditor is habitually resident in a 2007 Hague Contacting State, such as the USA, the most effective method would be for the creditor to sue in England, under the rules of the Maintenance Regulation,135 because the decision would also be enforced in England. Where the facts are reversed the creditor would be better to sue on the basis of one of the indirect grounds in the 2007 Hague Convention136 because that person would have to get the decision recognised and enforced in the non-EU state under the relevant recognition and enforcement rules in the Convention which permit a review of the jurisdictional bases.137
There are two issues to be examined in this context: the effect of a foreign divorce, annulment or legal separation on a pre-existing English order for financial relief, and the powers of the English court to grant such relief notwithstanding a prior foreign divorce, etc.
(a) Effect of foreign divorce, etc on financial relief already granted in England
Under English domestic law, a maintenance order granted by the family court could be continued in the discretion of the family court even after the marriage had been dissolved in England.138 The Court of Appeal has decided that the position is the same if the marriage is dissolved by a foreign divorce recognised in England;139 and the same principle has been applied to an interim order for maintenance made by a divorce county court, notwithstanding a later foreign divorce recognised in England.140 The English court retains its discretion to continue, vary or discharge the English maintenance order, but the changed marital circumstances of the parties may well affect their financial position and the view taken thereof by the court, as where dower became payable on the termination of a marriage by talak.141
(b) Powers of English court to grant financial relief, despite an earlier foreign divorce/dissolution, annulment or legal separation
Until Part III of the Matrimonial and Family Proceedings Act 1984 came into force, the general rule was that, once a marriage had been dissolved or annulled, the English court’s power to grant financial relief came to an end.142 No ancillary relief could be granted on the basis of a foreign divorce. The more liberal the English rules for the recognition of foreign divorces, etc, the greater the problem for spouses who wished to seek financial relief in England.143 Various devices were utilised by the courts to minimise the difficulties of those References(p. 1072) who sought financial relief in England, such as expediting English proceedings if there were parallel foreign ones,144 or granting relief in favour of a child though none could be granted to a parent.145 Useful though these devices were, the law was undoubtedly unsatisfactory in that, if the foreign proceedings had included no, or inadequate, financial provision for an English spouse (usually the wife) she could find herself destitute in England with social security as her only source of financial support. This could be so even though her husband lived in England and had substantial assets in England. Furthermore, the inability of the English courts to grant relief if a foreign divorce was recognised in England led regularly to challenges to the validity of such divorces for recognition purposes. This problem146 led to proposals for reform being made by the Law Commission147 which were carried into effect by Part III of the Matrimonial and Family Proceedings Act 1984; and this applies whether the foreign divorce was obtained before or after Part III came into effect.148
(ii) Part III of the Matrimonial and Family Proceedings Act 1984149
In considering the powers of the English court150 to grant matrimonial relief after a foreign divorce, etc, it is necessary to consider the orders which the court may make, the bases of jurisdiction available for the making of such orders and certain limitations or controls on the courts’ powers.
Powers equivalent to those set out in Part III of the 1984 Act operate in respect of civil partners by virtue of section 72(4) of the Civil Partnership Act 2004. Schedule 7 to the 2004 Act makes provision for financial relief in England after a civil partnership has been dissolved or annulled, or civil partners have been legally separated, in a country outside the British Islands. The following commentary on Part III of the 1984 Act should be read as applying, mutatis mutandis, to the grant of financial relief in respect of civil partnerships, in terms of the 2004 Act.
(a) Orders which the court can make
The powers conferred by Part III of the 1984 Act apply to the High Court and the family court.151 The general approach is that the court can make any of the orders which it could make on granting an English decree of divorce, annulment or judicial separation,152 including consent orders,153 orders for the transfer of tenancies154 and orders relating to children.155 So, notwithstanding a foreign divorce, the English court will, for example, be able to make periodical payments orders lump sum orders, property adjustment orders, and pension sharing orders.156 In deciding whether to make any of the orders which it could make on granting References(p. 1073) a decree, the court must have regard to a range of matters157 which are essentially the same as if it were granting a decree itself.158 In addition, section 18(6) provides as follows:
Where an order has been made by a court outside England and Wales for the making of payments or the transfer of property by a party to the marriage, the court in considering in accordance with this section the financial resources of the other party to the marriage or a child of the family shall have regard to the extent to which that order has been complied with or is likely to be complied with.
The purpose of this provision is to enable the court to take account of any foreign order which has been made and of its likely effectiveness.159 Furthermore, the English court may, if it thinks it appropriate, make an order in relation to matrimonial assets which are abroad, just as would seem to be the case in normal English matrimonial proceedings.160
(b) Jurisdiction of the English courts
There are three main bases of jurisdiction laid down by section 15(1) of the 1984 Act,161 ie:
(a) the domicile in England and Wales of either party to the marriage—this can be at one of two dates: either the start of the English proceedings for relief162 or the date when the foreign divorce, etc took effect in the foreign country;163
(b) the habitual residence in England and Wales of either party to the marriage for one year ending on either of the two dates relevant to domicile, ie the date of application for leave to bring the English proceedings or the date on which the foreign divorce, etc took effect in the country in which it was obtained;
(c) either or both of the parties to the marriage had at the date of application for leave to bring the English proceedings a beneficial interest in possession in a dwelling-house164 in England and Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.
These grounds are now subject to those under the Maintenance Regulation, where applicable.165 In the Law Commission’s view, the use of the same jurisdictional criteria of domicile and habitual residence as then166 applied to divorce petitions struck the proper balance of formulating “jurisdictional rules strict enough to prevent persons, whose marriage is insufficiently connected with this country to make it appropriate for the English court to adjudicate on financial matters, from invoking the court’s powers; but not so strict as to exclude meritorious cases”.167 The third head of jurisdiction, that there had been a matrimonial home References(p. 1074) in England, might be thought to cause more problems in terms of striking the correct balance and, indeed, was provisionally rejected by the Law Commission at one stage.168 It was, however, felt necessary169 to give the court power to deal with the quite common situation where the parties, though living abroad at the date of the divorce, had lived previously in England and where their only substantial asset was the former matrimonial home. The danger perceived by the Law Commission170 that this head of jurisdiction could be too wide, in giving the court power to make orders in relation to all the property of persons who had left England long ago, has been met by limiting the orders which the court may make, when exercising this head of jurisdiction alone, to orders relating to the former matrimonial home.171
Part III of the Matrimonial and Family Proceedings Act 1984 also provides for dovetailing these rules of jurisdiction into the structure of the Maintenance Regulation, Lugano Convention and Hague Convention.172 It will be recalled that the Maintenance Regulation extends the jurisdiction to grant all maintenance obligations, arising out of a family relationship, parentage, marriage or affinity. There is no definition of maintenance obligation, but the Regulation requires an autonomous interpretation.173 Therefore the CJEU might hold that an order made under Part III of the 1984 Act is not within that Regulation because it is first granted after the spouses’ marriage has come to an end, however this seems unlikely. The Maintenance Regulation provides a variety of jurisdictional bases, one of these is the court that has jurisdiction to deal with status, which includes divorce.174 There is no requirement to apply for maintenance in the state in which the divorce was granted, this is just a possibility, suggesting that the Regulation envisages a scenario where a divorce is granted in one Member State and maintenance is then granted in another state following the divorce, particularly where the parties are habitually resident in the latter State and divorce jurisdiction was based on common domicile or nationality.175 The English courts have found that the 1984 Act can apply,176 and held that creditor in Article 3 of the Regulation includes potential creditor.177 Where the Regulation is applicable, it will not apply to those orders under the 1984 Act which concern “rights in property arising out of a matrimonial relationship”.178 In order to deal with the possibility of clashes between the jurisdictional rules of the European system and of the 1984 Act, section 15(2) of the 1984 Act provides that where the jurisdiction of the court to entertain proceedings under Part III of the 1984 Act would fall to be determined by reference to the jurisdictional requirements imposed by virtue of Part I of the Civil Jurisdiction and Judgments Act 1982, then (a) satisfaction of the jurisdiction provisions laid References(p. 1075) down in section 15(1) of the 1984 Act shall not obviate the need to satisfy the requirements imposed by the Regulation or the 1982 Act; and (b) satisfaction of the requirements imposed by virtue of Part I of the 1982 Act shall obviate the need to satisfy the requirements of section 15(1) of the 1984 Act.179 Assuming that some orders, at least, made under Part III of the 1984 Act fall within the Maintenance Regulation, the jurisdictional rules in the Regulation shall apply to such orders.180
(c) “Filter” mechanisms
In making proposals for giving the courts power to make financial relief orders after foreign divorces, etc the Law Commission was much concerned that the relief should be “confined to those cases in which it is appropriate for the English court to intervene”.181 In addition to rules as to jurisdiction, Part III of the 1984 Act contains two further means182 for limiting relief to appropriate cases.183 The first is a filter mechanism for applications to the court. Under section 13 of the 1984 Act no application for a financial relief order can be made unless the leave of the court has been obtained, and “the court shall not grant leave unless it considers that there is substantial ground for the making of an application”.184 The paradigm case creating the need for the legislation is one where the foreign court offered no rights to financial provision,185 but the existence of a foreign financial provision order is no bar as such to the English application.186 This is because the foreign order may be inadequate or inappropriate.187 A mere disparity between the foreign award and what would be awarded by the English court would be insufficient in itself to trigger Part III.188 However where there is a large disparity between the two jurisdictions and also a very large disparity between what each party received then that will create a real hardship and serious injustice, so Part III will be triggered.189 It is important to note, however, that in intra-EU cases where a court in another EU Member State has also been seised for the “maintenance dispute” only the court first validly seised will have jurisdiction.190 Where a party is unhappy with a maintenance order made by a court in another Member State, it might be possible to seek modification of that order in England, subject to Articles 3 to 8. Where the proceedings in the court of the Member State first seised were withdrawn, or expired, then an applicant can bring proceedings in England for maintenance following an overseas divorce. In AA v BB,191 the wife successfully applied References(p. 1076) for maintenance in England after the proceedings in Slovenia were withdrawn. In cases where the English courts and the courts in a non-EU/ Lugano State are seised of the same proceedings, the English court can hear the case because the lis pendens provisions do not apply.192 Leave may also be granted subject to such conditions as the court thinks fit,193 such as an undertaking not to enforce a foreign order. If, however, the court concludes that it would not be appropriate (under the second filter mechanism) for an order to be made because, for example, the matter of financial relief is properly before or has been appropriately decided by a foreign court, it should refuse leave.194 It will be unusual for Part III to apply “where the wife had a right to apply for financial relief under the foreign law, and an award was made in a foreign country.”195 It is not necessary196 in order to obtain the court’s leave for the applicant to prove some hardship or injustice: “A case in which the applicant crosses the barriers contained in sections 13 and 16 without proving some specific hardship or injustice is perfectly conceivable.”197 If leave is to be granted, the jurisdiction should be tailored to the individual needs of the case “so that the grant of leave does not inevitably trigger a full blown claim for all forms of ancillary relief”.198
The second control or filter mechanism operates at the time of the actual hearing of the application, ie once leave to apply has been given199 and even if the jurisdictional rules are satisfied. Under section 16 the court has to be satisfied that in all the circumstances of the case it is appropriate for a court in England and Wales to make the order and the court is directed to consider a wide range of matters in determining the appropriateness of the venue.200 These include201 the connection of the parties with England, with the country where the divorce, etc was obtained or with any other country, the relief ordered in a foreign country and the likely effectiveness of that order,202 whether there is a right to apply for relief abroad, the existence of property in England in respect of which an order under Part III could be made, References(p. 1077) the likelihood of any order made under Part III of the 1984 Act being enforceable, and the length of time which has elapsed since the date of the foreign decree.203 In determining the appropriateness of the English court granting relief,204 the court will have regard, where there are proceedings in a foreign country, to questions of comity.205
(d) Other matters
Part III of the 1984 Act gives the English court power to make orders for financial relief not only when a foreign divorce, but also when a foreign annulment or legal separation,206 is recognised in England.207 The case for having the same powers in the case of divorce and annulment is strong. In both cases the marriage is at an end208 and the rules for the recognition of foreign divorces and annulments are now the same.209 They are also the same in the case of legal separations but in that case the marriage still subsists and there would be no bar to taking divorce proceedings in England and seeking the usual ancillary relief in England.210 If, however, a divorce decree was not sought, proceedings could be brought on the ground of failure to provide maintenance.211 The powers of the English court are less extensive in such a case than those provided in Part III of the 1984 Act, and so it was felt desirable212 to make the latter powers available also in the case of legal separations.
The powers of the court under Part III of the 1984 Act depend not only on there having been a foreign divorce, annulment or legal separation but also on its being entitled to recognition in England.213 However, the powers are limited to divorces, etc obtained in an “overseas country” which is defined as a country or territory outside the British Islands.214 This means that the English court has no power to make an order under Part III following, for example, a Scottish divorce or Northern Ireland annulment. It was thought more appropriate, and not too inconvenient, in such a case for the party seeking relief to return to the court which granted the original decree.215 Furthermore, the powers are limited to divorces obtained “by means of judicial or other proceedings”,216 thus excluding informal divorces despite the fact that they will be recognised in England by virtue of section 46(2) of the Family Law Act 1986.217
References(p. 1078) 3. Choice of Law
There is little doubt that, when an English court is considering an application for maintenance or similar relief, it applies English domestic law,218 irrespective of the domicile of the parties or any other factors connecting them with some other jurisdiction.219 The English court also applies domestic law when considering an application under the Maintenance Regulation. It should be noted however that the courts in all other EU Member States, excluding Denmark, now apply the Hague Protocol on Applicable Law (Hague Protocol)220 to maintenance obligations. This distinction is important because any decision given in accordance with the Hague Protocol is automatically enforceable in another Member State irrespective of public policy considerations.221 Where the 2007 Hague Convention applies the English court will also apply domestic law.
In cases to which the Maintenance Orders (Facilities for Enforcement) Act 1920 or the Maintenance Orders (Reciprocal Enforcement) Act 1972 apply, there may be a limited number of circumstances where foreign law is relevant by reason of the reciprocal provisions.222
All forms of financial relief, such as orders for periodical payments, the payment of lump sums or maintenance orders granted by a foreign court, may be regarded as foreign judgments in personam.223 Usually, the foreign court has a power to vary the amount of such payments, in which event the order will not be recognised in England as it is not “final or conclusive”.224 Where the power to vary is only prospective, any arrears of past payments may be recovered in England.225 This is an atypical situation and the rules for the recognition and enforcement of foreign orders have not been left to the common law but are essentially statutory in formulation.
The main legislative provisions in this area are negative in effect. Article 1(3)(e) of the Brussels II bis Regulation states that it shall not apply to maintenance proceedings.226 However the Maintenance Regulation does now provide for the enforcement of maintenance obligations References(p. 1079) ancillary to a foreign divorce, where jurisdiction is based on Article 3(c). The Family Law Act 1986 provides that nothing in that Act shall be construed as requiring the recognition in England of any maintenance, custody or other ancillary order made in any foreign proceedings for divorce, annulment or legal separation.227 In such cases, recognition depends on the common law rules for the recognition of foreign judgments,228 unless covered by any of the statutory provisions considered below. An English court will not recognise a foreign maintenance order ancillary to a foreign divorce, etc where it considers, under the English rules for the recognition of foreign divorces, etc, that the foreign court lacked jurisdiction.229 For “if the main order goes, then any order which is merely ancillary to that order should go with it”.230
A maintenance order made elsewhere in the United Kingdom may, under Part II of the Maintenance Orders Act 1950,231 be registered in an English court if the person liable to make the payments resides in England and it is regarded as convenient that the order should be enforceable in England.232
This procedure applies to a wide range of orders, including those for periodical payments ancillary to decrees of divorce, nullity or judicial separation, or for failure to provide reasonable maintenance. Registration is in the discretion of the court making the original order and not the court which is asked to register it, as is also normally the case with variation or discharge of a registered order; but once registered, the order may be enforced as if an order of the registering court.233
Under the Maintenance Orders (Facilities for Enforcement) Act 1920, provision is made for the reciprocal enforcement of maintenance orders between England, on the one hand, and, on the other, those Commonwealth countries to which the Act has been extended by Order in Council. The “shuttlecock” procedure applicable to English proceedings is equally applicable to foreign proceedings, so that if a provisional order is made in a Commonwealth country in the absence of the defendant, it may be confirmed by the English magistrates’ court in the References(p. 1080) area where the defendant resides.234 The defendant may raise any defence which he might have raised in the foreign proceedings and the English court has a discretion whether or not to confirm the foreign provisional order.
There are further reciprocal provisions in the 1920 Act whereby an English maintenance order may be registered in the Commonwealth country235 or a Commonwealth order may be registered in England.236 These provisions assume that the court making the original order had jurisdiction to make it but that there is difficulty in enforcing it in that jurisdiction, as where the defendant was resident in the Commonwealth country when the order was made, but is resident in England when enforcement is sought. Registration is mandatory if a certified copy of the maintenance order is sent from the Commonwealth court to the designated officers of the English court. The order also has the same effect as if it were an English order, though there is no power to rescind or vary such an order.237
There is reciprocal machinery in the 1972 Act, similar to that contained in the 1920 Act, for the recognition of maintenance orders made in any foreign reciprocating country.238 A foreign provisional order made in the absence of the defendant may be sent to the English court within whose jurisdiction the defendant resides and that court has a discretion as to whether or not to confirm the order.239 The defendant may raise any defences open to him in the original proceedings; but, once confirmed, the order is registered and has effect as if made by the English court. Variation or revocation of such orders may normally be made by either the English or the foreign court.240
As with the 1920 Act, there is also provision for the registration of a foreign order in an English court241 and vice versa.242 Again, it is assumed that the original court had jurisdiction to make the order, but it is more convenient for it to be enforced in the other country. If a certified copy of a foreign order is sent to the designated officer of the magistrates’ court where the defendant resides, registration is mandatory and the order has effect as if made by the English court.
We have seen that section 40 of the 1972 Act allows Part I of the Act to be applied, by Order in Council, in amended form to specified countries. These amended versions extend to recognition as well as to jurisdiction.243 The variations can be illustrated by the fact that, although registration (and thus recognition) of a certified foreign order is mandatory under the 1972 Act itself,244 there are a number of grounds on which it can be refused under the version References(p. 1081) implementing the 1973 Hague Convention on the recognition of maintenance orders,245 including that “registration is manifestly contrary to public policy”.246
The Maintenance Regulation requires that maintenance orders, provided they fall within the meaning of “maintenance” under the Regulation,247 given in one Member State are recognised in another Member State without any special procedure being required.248 There are two systems for enforceability, depending on whether the decision originated in Member State bound by the Hague Protocol or not. Where the decision originated in a Member State bound by the Hague Protocol, such as France, it is not possible to oppose the recognition of the decision,249 and the decision is automatically enforceable,250 in the same manner as a national order given in the state of enforcement.251 There is a very limited right to apply for a review, “in order to guarantee compliance with the requirements of a fair trial”.252 A defendant who did not enter into an appearance in the Member State of origin can apply for a review, in that state, where it was not possible for him to challenge the decision, because either he did not have sufficient time to arrange a defence or he was prevented from contesting the claim due to extraordinary circumstances without any fault on his part.253 If it was possible for the defendant to challenge the decision and he did not do so, then the defence is unavailable.254 The ground for review is time barred,255 represents a minimum standard and may not guarantee a fair trial in all circumstances.256
The authorities in the Member State of enforcement can refuse to enforce a maintenance decision, or suspend enforcement, on the grounds of refusal of enforcement under the law of that Member State.257 Enforcement can also be refused if the right to enforce the decision is extinguished by the effect of prescription or limitation, under either the law of the Member State of origin or enforcement. The law which provides the longer limitation period should be applied.258 On the application of the debtor, the Member State can refuse enforcement where the decision is irreconcilable with a decision given in that state, another Member State or a third state (if it is enforceable in the state where enforcement is requested),259 and where the competent court in the state of origin has been seised for an application for review under Article 19.260 The English courts will have to apply this procedure to all maintenance orders made in another Member State, apart from those originating in Denmark. However the English implementing legislation has created some uncertainty in this area.261 The References(p. 1082) implementing legislation states that an application should be made to the family court,262 but this is subject to para 4(2), which indicates that the application should be transferred to the family court by the Lord Chancellor.263 It has been argued that the effect of this provision is that “all applications for enforcement under the Maintenance Regulation have to be presented to the Family Court by REMO”.264 It is unlikely that this procedure constitutes a simplified mechanism for enforcement as envisaged by the Maintenance Regulation, nor does it mean that intra-EU orders are treated in the same way as national orders.265 In EDG Mostyn J considered that the provision was ambiguous and argued that there was a mistake in the provisions and individuals should have a right to direct enforcement.266 In MS Roberts J decided to request a ruling from the CJEU in order to determine in which circumstances a direct right to enforcement is necessary, and if each Member State must provide a direct right to enforcement.267 It seemed inconceivable that the CJEU would not insist on a direct right to enforcement, and in February 2017 the CJEU confirmed that a direct right to enforcement was required.268 However, this step should provide more certainty for applicants seeking to enforce a decision in England.269 It is important to note that enforcement of a decision made in accordance with the Maintenance Regulation and the Hague Protocol does not imply the recognition of the family relationship that gave rise to the order.270 As there is no review on grounds of public policy at the enforcement stage the maintenance decision will have to be enforced regardless of whether the Member State of enforcement recognises the relationship that the obligation arose from.
In contrast, all outgoing orders from England are subject to a different procedure in the receiving Member State. Maintenance orders established by a court in England, or Denmark, can be refused recognition if an interested party makes an application for recognition.271 Recognition shall be refused where the recognition would be manifestly contrary to the public policy of the state addressed,272 where it was given in default of appearance and it was not possible for the defendant to challenge the decision,273 if the decision is irreconcilable with a decision given in a dispute between the same parties in the state where the recognition is sought,274 or if the dispute is irreconcilable with a decision given in another Member State or a third state, involving the same cause of action and the same parties.275 Irreconcilable References(p. 1083) judgments could be problematic in this area mainly because there is no clear definition of “maintenance”. This could be particularly problematic in the context of spousal maintenance on divorce where there are a number of alternative bases of jurisdiction available and parties could select different courts to deal with divorce,276 maintenance and matrimonial property.277 It could also be the case that different courts are dealing with spousal maintenance and child maintenance.278 Irreconcilable judgments could arise where one court characterises a payment as maintenance and another as matrimonial property, particularly in relation to lump sum payments. If money has already been allocated in relation to property, in one state, then it could be difficult to enforce a lump sum maintenance order made in a different Member State. A decision awarding an interim payment on divorce could also conflict with a final maintenance order. Irreconcilable judgments could also arise in relation to maintenance decisions given in third states, because the lis pendens and related actions provisions only cover proceedings in another Member State.279 In Hoffmann v Kreig it was held that a German award for spousal maintenance was irreconcilable with a later decision on divorce, between the same parties, given in the Netherlands.280
Under this non-Hague Protocol track it is essential that a declaration of enforceability is granted before the decision can be enforced. In England this is known as registration for enforcement.281 The application for registration, in respect of judgments originating in Denmark, is to be made to the family court.282 The application is to be transmitted to the family court by the Lord Chancellor.283 Once it is registered, the order is treated for enforcement purposes as if it were an English order made by the court and the methods of enforcement are the same as for an English order.284
Although the main enforcement route is by way of the Maintenance Regulation, there is scope also for enforcing a claim for maintenance payment using the European Enforcement Order for Uncontested Claims.285 Like the route for maintenance decisions originating in References(p. 1084) a Hague Protocol State, this procedure permits the free circulation of judgments,286 court settlements and authentic instruments287 throughout the Member States without the need for intermediate proceedings being brought in the Member State of enforcement288 prior to recognition and enforcement.289
Orders made under the Lugano Convention can be refused recognition and enforceability on the same grounds as a judgment from a non-Hague Protocol State, under the Maintenance Regulation.290 In England and Wales the application for recognition or enforceability shall be transmitted to the appropriate court by the Lord Chancellor.291 Once the order has been registered, for the purposes of enforcement, it will have the same force and effect as a national decision and the same enforcement powers are available.292
A Maintenance decision given in one Contracting State, the UK, can only be recognised and enforced in another Contracting State, such as Bosnia and Herzegovina, if certain jurisdictional requirements are complied with.293 There are six bases listed, but Contracting States are permitted to make a reservation in respect of three of these.294 The jurisdictional bases for recognition and enforcement in the Maintenance Convention are that the respondent was habitually resident in the state of origin at the time the proceedings were instituted;295 the respondent submitted to the jurisdiction, either expressly or by defending the case on the merits without contesting the jurisdiction at the first available opportunity;296 the creditor was habitually resident in the state of origin at the time the proceedings were instituted;297 or the child for whom maintenance was ordered was habitually resident in the state of origin at the time the proceedings were instituted, provided that the respondent has lived with the child in that state and provided support for the child there.298 The Convention also provides for indirect jurisdiction on the basis of a choice of court agreement, where the dispute does not relate to children,299 and the final bases are where the decision was made by an authority exercising jurisdiction on either a matter of personal status or parental responsibility, as long as that jurisdiction was not based on the nationality of one of the parties.300
Contracting States can make reservations in regard to Article 20(1)(c), the habitual residence of the creditor, (e) jurisdiction agreements and (f) jurisdiction linked to personal status or References(p. 1085) parental responsibility.301 However even where a Contracting State, such as the USA, has made a reservation, the court in the USA may be required to recognise a decision that was based on that ground of jurisdiction in certain circumstances. The Contracting State should still recognise the decision if under its own law, in similar factual circumstances, an order would have been made.302 Where it is not possible to recognise the order, the court should take all appropriate measures to establish a decision for the creditor, if the debtor is habitually resident in that state.303 Finally where a decision in respect of a child cannot be recognised only because of a reservation in regards to (c), (e) or (f), the decision must be accepted as establishing that the child is eligible for maintenance in the state addressed.304
Where jurisdiction is based on one of the grounds listed above then the order should be recognised and enforced. However the court may still refuse recognition, or registration in England, if the order is manifestly contrary to public policy.305 The Convention allows for ex officio review of public policy, so a court can review this ground regardless of whether an objection is raised by the parties. After the order has been registered by the authorities the parties can challenge this on either the grounds for refusal of recognition under Article 22, the bases of jurisdiction in Article 20 or the authenticity or the integrity of the document.306
The grounds for refusal of recognition and enforcement are: that the recognition and enforcement of the decision would be manifestly contrary to the public policy of the state addressed;307 the decision was obtained by fraud in connection with a matter of procedure;308 proceedings between the same parties and having the same purpose are pending before an authority of the state addressed and those proceedings were the first to be instituted;309 the decision is incompatible with a decision rendered between the same parties and having the same purpose, either in the state addressed or in another state, provided that the latter decision fulfills the conditions necessary for its recognition and enforcement in the state addressed;310 where the decision was given in default of appearance and the defendant was not served with sufficient notice, or was not given an opportunity to challenge or appeal the decision;311 or the decision was made in violation of Article 18.312 Article 18 places constraints on the jurisdiction of debtors when they are attempting to modify a decision. If the debtor attempts to modify a decision in a different Contracting State from the one designated by Article 18, then the creditor can challenge the recognition and enforcement of the modification decision.
The courts of England and Wales will have jurisdiction for the recognition and enforcement of judgments made under the Hague Convention if the person against whom enforcement is sought is habitually resident in England and Wales, or that person has assets in England References(p. 1086) and Wales.313 An application for registration should be made to the family court by the Lord Chancellor.314 An application for registration should be determined at first instance by the prescribed officer of the registering court.315 This decision can be appealed to the registering court in accordance with the rules of court.316 Once the decision has been registered it shall have the same force and effect as a national decision and shall be enforceable in the family court in the same way as an order made by that court.317 Maintenance arrangements shall be recognised and enforced in the same way as maintenance decisions.318 Interest is payable in accordance with the law of the Contracting State, in which the decision was given, only if the date from which interest as payable and the rate at which it is payable is registered with the judgment.319 Sums payable under a maintenance decision registered in England and Wales, including any arrears, are payable in sterling.320
3 Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations  OJ L7/1. The Regulation entered into force on 18 June 2011, replacing the system under Brussels I. It applies in all Member States, but in Denmark it is only implemented to the extent that it amends Brussels I (OJ L 149/80).
4 Hague Convention of 23 November 2007 on the International Recovery of Child Support and other Forms of Family Maintenance. The Convention entered into force on 1 January 2013 and the EU approved the Convention as a regional economic integration organisation (REIO) on 9 April 2014.
5 The rules which apply to civil partners under the 2004 Act are based upon those which apply to married couples, and so all references in this chapter to “marriage” and “married persons” should be construed as including civil partnership and civil partners.
14 Domicile and Matrimonial Proceedings Act 1973, s 5(2)(a) and (3)(a). Residual national rules of jurisdiction apply if no court of a Member State has jurisdiction under the Regulation (s 5(2)(b) and (3)(b)). See p 962, supra.
15 Notably, the Brussels II bis Regulation (Recital (8)), like its predecessor, the Brussels II Regulation (Recital (10)), applies only to the dissolution of matrimonial ties; it does not deal with issues such as the property consequences of marriage or any other ancillary measures.
16 Cammell v Cammell, supra (preceding the Brussels II bis Regulation); and see the power to vary a marriage settlement exercised over foreign settlements in Nunneley v Nunneley (1890) 15 PD 186; Forsyth v Forsyth  P 363; and see Hunter v Hunter and Waddington  P 1, infra, pp 1394–6. See now Matrimonial Causes Act 1973, s 23.
27 Matrimonial Causes Act 1973, s 27. The differing obligations of maintenance on a husband and a wife are laid down in s 27(1), as substituted by s 63 of the Domestic Proceedings and Magistrates’ Courts Act 1978; and see the Matrimonial and Family Proceedings Act 1984, s 4; Family Law Reform Act 1987, Sch 2, para 52.
30 Matrimonial Causes Act 1973, s 27(2), as substituted by the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, Sch 7, para 6(2). For the jurisdictional requirements under the Maintenance Regulation, see infra, p 1064 et seq.
32 Ibid, s 35(1). For the meaning of “residence”, see Sinclair v Sinclair  P 189 and cases there cited. Also Harb v Aziz (No 1)  EWCA Civ 632,  2 FLR 1108; and Harb v Aziz (No 2)  EWCA Civ 1324,  1 FLR 825. If an agreement provides for the continuation of payment after the death of one party, and that party died domiciled in England, the court has jurisdiction over any application by the survivor or the personal representatives of the deceased: s 36.
37 As amended by the Maintenance Orders (Reciprocal Enforcement) Act 1992, Sch 1, Part I; SI 1992/709, Art 4; Access to Justice Act 1999, Sch 15, Pt V; and the Courts Act 2003, Sch 8, para 68 and Sch 10. See McClean, Recognition of Family Judgments in the Commonwealth (1983), Chapter 5.
38 As amended by the Domestic Proceedings and Magistrates’ Courts Act 1978, ss 54–61, and by the Maintenance Orders (Reciprocal Enforcement) Act 1992, Sch 1, Part II. See McClean, op cit, Chapters 6 and 7.
45 1972 Act, ss 5, 9, as amended by the Domestic Proceedings and Magistrates’ Courts Act 1978, s 54; the Civil Jurisdiction and Judgments Act 1982, Sch 11, para 12; the Maintenance Enforcement Act 1991, Sch 1, para 14; the Maintenance Orders (Reciprocal Enforcement) Act 1992, Sch I, Part II; Access to Justice Act 1999, Sch 13, para 71; and the Courts Act 2003, Sch 8, para 153. For an example, see Killen v Killen 1981 SLT (Sh Ct) 77.
46 By s 25(1) the Crown, by Order in Council, may declare that any country or territory specified in the Order, being a country or territory outside the United Kingdom to which the 1956 Maintenance Convention extends, is a Convention country for the purposes of Part II of the 1972 Act. See SIs 1975/423, 1978/279, 1982/1530, 1996/1925, and 2002/2839.
47 S 26(3) and (6), as substituted by the Access to Justice Act 1999, Sch 13, paras 71, 76, the Crime and Courts Act 2013, Sch 11(1) para 42, and as amended by the Courts Act 2003, Sch 8, para 158. In Scotland, the application is submitted to the sheriff clerk for the sheriffdom in which the applicant resides.
49 Under s 28A of the 1972 Act (as substituted by the Maintenance Orders (Reciprocal Enforcement) Act 1992, Sch 1, Part II, para 13 and the Crime and Courts Act 2013, Sch 11(1) para 46(a)) the English family court can entertain an application for maintenance from a person who is residing in England, even though the spouses’ marriage had been dissolved or annulled by an overseas decree which is recognised as valid in England.
52 SI 1993/594; see Macaulay v Macaulay  1 WLR 179; R v West London Magistrates’ Court, ex p Emmett  2 FLR 663; and see Sachs v Standard Chartered Bank (Ireland) Ltd  ILRM 297. Since June 2011 the Maintenance Regulation applies to all disputes involving England and the Republic of Ireland, infra p 1070.
58 The English courts will apply the law of the forum for all elements of the maintenance case, because England is not party to the Hague Protocol, see infra at p 1078. The Hague Protocol States should also apply national law to determine whether a family relationship exists, Rec 21 Maintenance Regulation.
67 Moore v Moore  EWCA Civ 361,  IL Pr 36, (Thorpe LJ) : “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.”
68 Eg Moore v Moore  EWCA Civ 361,  IL Pr 36, (Thorpe LJ)  and . The essential object of H’s application was to achieve sharing of the property on his terms (cf Miller v Miller, McFarlane v McFarlane  UKHL 24,  2 AC 618,  and ), rather than an order based on financial needs, and so there was no scope for application of Art 5(2) of the Brussels I Regulation.
69 The English courts have a wide range of orders available to them, and the discretionary powers conferred on the court by ss 23–25 of the Matrimonial Causes Act 1973 have been described as limitless, see NR v AB  EWHC 277 (Fam) .
81 Brussels II bis Regulation, Art 8. Parental responsibility is the generic term used by the Regulation, for proceedings relating to the care and / or upbringing of the child. Under English law the father automatically had parental responsibility, so any proceedings would be for a child arrangements order under s 8 of the Children Act 1989.
101 This is in contrast to the general approach of the Regulation which is designed to protect the weaker party, allowing for creditor based jurisdiction under Art 3. See Art 26(2) Brussels I recast, which is a more nuanced submission provision designed to protect weaker parties and requires that the defendant is informed of the consequences of entering an appearance.
102 Arts 12 and 13, and see Art 9. The rules on lis pendens and related actions are the same as the main rules (excluding the exceptions for choice of court agreements and exclusive jurisdiction) in Brussels I in Arts 29 and 30 discussed supra Chapter 11(3)(f) and Chapter 13(4)(a). See also supra, pp 968–71.
107 However, because this was based on the husband’s domicile only (Domicile and Matrimonial Proceedings Act 1973, s 5(2)(b)), Art 3(c) could not apply as the wife was not domiciled in England and Wales.
114 Ibid, –. The husband chose to seise the English court for divorce and child arrangements. He should not be able to avoid that jurisdiction for maintenance, given that it was not possible to bring proceedings in Dubai the country with the closest connection to the marriage.
129 Particularly where jurisdiction is found on Arts 3, 5 and in most cases Art 4. Arts 4 and 6 give precedence to the Lugano Convention in certain circumstances, and because Art 7 is an exceptional ground it should really only apply where jurisdiction cannot be found via a different mechanism.
132 Art 69(2). So in a dispute where one party is habitually resident in Ireland and the other party is habitually resident in England the Maintenance Regulation would apply rather than the Maintenance Orders (Reciprocal Enforcement) Act 1972.
150 Part IV of the 1984 Act confers similar, but more limited, powers on the Scottish courts, following the report of the Scottish Law Commission in Scot Law Com No 72 (1982). See Crawford and Carruthers, para 13–43.
154 Ss 17, 19, 21–2. There are also provisions similar to those in the Matrimonial Causes Act 1973 for avoiding transactions designed to defeat applications for financial relief (s 23) and, for preventing transactions intended to defeat prospective applications (s 24). The court’s powers are limited to orders relating to the matrimonial home (s 20) in cases when jurisdiction is taken solely on the basis of the presence of that home in England.
165 S 15(1A), as amended by the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484 Sch7 para 10(2)(b). Where the dispute is considered to be a “maintenance” dispute for the purposes of the Maintenance Regulation, then the jurisdictional bases in the Regulation are always applicable, regardless of the parties’ residence and domicile, because there is no residual jurisdiction. (Cf Brussels II bis Art 7). However, although the bases in (a) and (c) of the 1984 Act are technically not available under the Maintenance Regulation, if one party seises the English court on either basis and the other party submits to the jurisdiction, then the English court will have jurisdiction by virtue of Art 5.
175 The grounds for jurisdiction in the Maintenance Regulation do not align with those in Brussels II bis Art 3, and see L Walker, Maintenance and Child Support in Private International Law (2015) 55–65.
178 In Van den Boogaard the CJEU referred to maintenance as an award that is designed to enable one spouse to provide for them self and should take account of the needs and resources of each of the spouses. A right in property on the other hand should be solely concerned with dividing property (C-220/95 Van den Boogard v Laumen  I-01147 ). This definition creates some grey areas and the label given to a payment by national law will not necessarily be definitive. See Moore v Moore  EWCA Civ 361 .
179 S 15(2), as amended by Sch 1(1), para 13 of the Civil Jurisdiction and Judgments Regulations, SI 2007/1655 and repealed by Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484 Sch.7 para 10(2)(c).
182 To be read in conjunction: Holmes v Holmes  Fam 47, (Purchas LJ), 53; Jordan v Jordan  1 WLR 210, (Thorpe LJ), 218; Moore v Moore  EWCA Civ 361,  IL Pr 36, (Thorpe LJ),  and Agbaje v Akinnoye-Agbaje  UKSC 13.
184 Jordan v Jordan  1 WLR 210, (Thorpe LJ), 220; and Ella v Ella  EWCA Civ 99, (Charles J) . It is necessary for the applicant to place all the material facts before the court: W v W  1 FLR 22; M v M (Financial Provision After Foreign Divorce)  1 FLR 399. Cf, for civil partnerships, Civil Partnership Act 2004, Sch 7, para 4.
186 S 13(2). Jordan v Jordan  1 WLR 210, (Thorpe LJ), 219: “after Parliament had provided the remedies for the paradigm case, attempts were repeatedly made to extend the statutory provisions to obtain for the applicant some specific outcome or target which she had failed to achieve in the jurisdiction where the marriage had been dissolved”.
194 Holmes v Holmes  Fam 47; M v M (Financial Provision After Foreign Divorce)  1 FLR 399; Hewitson v Hewitson  Fam 100, CA; N v N (Foreign Divorce: Financial Relief)  1 FLR 900. Jordan v Jordan  1 WLR 210, (Thorpe LJ), 219: “Holmes v Holmes and the subsequent cases are in the main restrictive and negative in conclusion, defining and policing the boundary between relieving hardship in the paradigm case and disqualifying the forum shopper for the applicant seeking a second bite of the cherry”. Cf A v S (Financial Relief after Overseas US Divorce)  EWHC 1157,  1 FLR 431, (Bodey J) ; and M v L (Financial Relief after Overseas Divorce)  EWHC 328,  2 FLR 425, (Coleridge J)  and .
196 Jordan v Jordan  1 WLR 210, (Thorpe LJ), 221: “Parliament might have so legislated, but it did not. The statutory criteria are fully expressed.” Also Moore v Moore  EWCA Civ 361,  IL Pr 36, (Thorpe LJ) ; and A v S (Financial Relief after Overseas US Divorce)  EWHC 1157,  1 FLR 431, (Bodey J) : it is not necessary to look for financial hardship or injustice “although an applicant’s case is stronger if such exist”.
200 Jordan v Jordan  1 WLR 210, (Thorpe LJ), 221–8; and A v S (Financial Relief after Overseas US Divorce)  EWHC 1157,  1 FLR 431, (Bodey J) –. Cf, for civil partnerships, Civil Partnership Act 2004, Sch 7, para 8.
201 S 16(2); see Z v Z (Financial Provision: Overseas Divorce)  2 FLR 291; A v S (Financial Relief after Overseas US Divorce)  EWHC 1157,  1 FLR 431; and M v L (Financial Relief after Overseas Divorce)  EWHC 328,  2 FLR 425, (Coleridge J) .
202 Jordan v Jordan  1 WLR 210, (Thorpe LJ), 220: “Prima facie, the primary jurisdiction offering comparable rights of equitable redistribution will also offer comparable powers of implementation and enforcement.”
204 It is inappropriate to apply the traditional forum non conveniens test, because the Court is not necessarily determining which of the two jurisdictions is the most appropriate, Agbaje v Akinnoye-Agbaje  UKSC 13 –.
207 For an application under Part III, not only does there have to be a valid divorce, or legal separation, but the divorce has to be based upon a marriage which was recognised under English law as a valid or at least a void marriage, Shagroon v Shabartly  EWCA Civ 1507.
213 S 12(1)(b); B v B (Divorce: Northern Cyrus)  2 FLR 707; and Emin v Yeldag  1 FLR 956—application for leave granted on the basis of recognition of divorce granted by Turkish Republic of Northern Cyprus, notwithstanding non-recognition by the United Kingdom Government of Northern Cyprus as a country. See Law Commission Working Paper No 77 (1980), para 59. The rules for recognition are discussed supra, p 1000 et seq.
218 1984 Act, s 18. Eg A v S (Financial Relief after Overseas US Divorce)  EWHC 1157,  1 FLR 431, (Bodey J) –; and M v L (Financial Relief after Overseas Divorce)  EWHC 328,  2 FLR 425, (Coleridge J)  et seq.
220 Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The EU signed and ratified the agreement as an REIO on 8 April 2010. The Protocol applied provisionally within the EU from the date of application of the Maintenance Regulation, 18 June 2011. The Protocol entered into force officially, on 1 August 2013. See also A Bonomi, ‘The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations’ (2008) 10 Yearbook of Private International Law 333.
223 Discussed supra, p 528 et seq, and see especially the critical discussion of Phillips v Batho  3 KB 25, supra, p 545. See McClean, Recognition of Family Judgments in the Commonwealth (1983), Chapter 4.
229 Simons v Simons  1 KB 490,  4 All ER 436; and see Papadopoulos v Papadopoulos  P 55. This is subject to the rules in the Maintenance Regulation and the 2007 Hague Convention. Where the Maintenance Regulation applies, jurisdiction cannot be reviewed. Minimal review is permitted under the 2007 Hague Convention, infra p 1084 et seq.
231 By virtue of the Civil Jurisdiction and Judgments Act 1982, s 18(5)(a), the enforcement of a maintenance order made elsewhere in the United Kingdom continues to be governed by the Maintenance Orders Act 1950.
232 S 18(1), as amended by the Courts Act 2003, Sch 8, para 88(2). Such orders are brought within the provisions of the Maintenance Orders Act 1958 as to registration and enforcement by reason of the amendments to that Act contained in the Administration of Justice Act 1977, s 3, Sch 3; Civil Jurisdiction and Judgments Act 1982, Sch 11, para 2; and the Matrimonial and Family Proceedings Act 1984, s 46(1), Sch 1, paras 4 and 5.
233 Recognition of liability orders, made elsewhere in the United Kingdom under the Child Support Act 1991, is governed by regulations made by the Secretary of State: Child Support Act 1991, s 39. The jurisdiction of a child support officer to make an original maintenance assessment is based on the relevant person’s habitual residence in the United Kingdom: 1991 Act, s 44, as amended by the Child Support, Pensions and Social Security Act 2000, Sch 3, para 11(2).
234 S 4 of the 1920 Act, amended by the Maintenance Enforcement Act 1991, Sch 1, para 1; the Maintenance Orders (Reciprocal Enforcement) Act 1992, Sch 1, Part I, para 2; and the Courts Act 2003, Sch 8, para 69(3)(b).
248 Ch IV Maintenance Regulation. This applies to all maintenance orders given after 18 June 2011. Orders established before that date can, in some circumstances, be recognised and enforced in accordance with Brussels I (Art 75 Maintenance Regulation).
262 Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484, Sch 1, para 4(1)(a), as substituted by Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 128(a).
263 Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484, Sch 1, para 4(2)(a), as inserted by Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 128(b).
272 Art 24(a) and see (C-7/98) Krombach v Bamberski ECLI:EU:C:2000:164, for the application of this provision under Brussels I. Certain Member States may refuse recognition of, or refuse to grant a declaration of enforceability to, a maintenance obligation arising from a same-sex marriage or civil partnership on grounds of public policy.
277 The proposal on Matrimonial Property was rejected by Council on 3 December 2015. On 2 March 2016 the European Commission adopted a proposal for a Council decision authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (COM (2016) 108 final). Seventeen Member States wish to participate in the enhanced cooperation regime, if it is authorised.
279 Maintenance Regulation, Arts 12 and 13. If the proceedings are caught by Art 12, lis pendens, (both proceedings have the same cause of action) the Court second seised must stay proceedings. Where the actions are related actions, caught by Art 13, the court second seised has discretion to stay proceedings.
280 C-145/86 Hoffmann v Kreig  ECR 645, this decision has been criticised by Martiny D Martiny, ‘Maintenance Obligations in the Conflicts of Laws’ (1994) 247 Recueil des Cours 131, 270–1). See also R v West London Magistrates’ Court  1 FCR 421 and Macaulay v Macaulay  1 WLR 179.
282 Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484, Sch 1, para 6(1)(a), as substituted by the Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 129(a).
283 Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484, Sch 1, para 6(2)(a) as inserted by Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 129(b).
284 Civil Jurisdiction and Judgments (Maintenance) Regulations 2011/1484, Sch 1, para 7, as substituted and revoked by the Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 129(c)(i)(aa) and (bb). Interest is payable on the order according to the law of the country making the order (Maintenance Regulations, Sch 1, para 8). Sums payable in England under the foreign order are to be paid in sterling, converted as at the date of registration (Sch 1, para 9).
292 Ibid, s 5A(3). Interest is recoverable in accordance of the law of the Contracting State in which the order was given (s 7(1)) and sums payable in England under the foreign order are to be paid in sterling, converted as at the date of registration (s 8).
293 Hague 2007 Convention, Art 20. The Contracting States to the 2007 Convention are: the EU Member States (bound as a result of an approval by the EU), Albania, Bosnia and Herzegovina, Montenegro, Norway, Turkey, Ukraine and the USA.
301 Art 20(2). The UK is bound by the Convention as a result of an approval by the EU as a REIO, and no reservations were made in relation to jurisdiction. However where English courts are making an order on the basis of one of these grounds of indirect jurisdiction, and that order is to be enforced in another Hague 2007 Contracting State, such as the USA, the judge should be aware of any reservations made by that state when making their order.
314 International Recovery of Maintenance (Hague Convention 2007 etc) Regulations 2012/2814, Sch 1, para 2(1) and (2), as substituted by Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 138(a) and (b).
317 International Recovery of Maintenance (Hague Convention 2007 etc) Regulations 2012/2814, Sch, 1 para 2(6)-(8), as substituted and revoked by Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014/879 Pt 2, Art 138(c)(i) and (ii).