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Family law goes European

Family lawyers now have clear procedural guidance about varying an Order under the EU Maintenance Regulation, says Pennington Manches partner James Stewart.

Family lawyers now have clarity over variation of maintenance costs Kunal Mehta

Sir Peter Singer has provided practitioners with clear procedural guidance about varying a financial order ancillary to divorce under the EU Maintenance Regulations following successful strike out of variation application. Penningtons Manches family law partner James Stewart and associate Gill O’Connor, instructed on behalf of the former wife, succeeded in the High Court in striking out a former husband’s application to modify a German financial order.

In the first reported judgment concerning an “incoming” variation application (i.e. applications from another member state to England and Wales), the judge, Sir Peter Singer, found that the only route for such an application is via Chapter VII of the Maintenance Regulation (Council Regulation EC No 4/2009) and that no direct approach to a court without involvement of the relevant Central Authority is permissible.

The applicant in this case was aged 70 and the respondent, her former husband, aged 78. They married in the United States in 1966 and divorced in England in 1974. They remarried in America in 1979. In 2000 they divorced in Germany, where they were then living. Following the second divorce, the husband quickly remarried whilst the wife moved to England and began a new relationship. 

The case concerned an application by a German national to vary a German order. The parties had divorced in Germany in 2000, following which the wife moved to England to live. On 2 April 2014, the wife received, out of the blue, a letter from her former husband’s solicitors, serving court papers which included a direction requiring her to file a compendious financial statement by 2 June 2014. 

On 29 April, Penningtons Manches sent a considered letter inviting the former husband to withdraw his application, failing which he would himself apply to dispose of the application by striking it out or to dismiss it for want of jurisdiction or as an abuse of the court’s process. When the former husband did not withdraw his application, James Stewart proceeded with a strike out application on behalf of the former wife.

In essence, the former husband had filed an application for a financial order in Form A in the Slough County Court in the belief that this was sufficient to confer jurisdiction onto the English court under Chapter VII of the Maintenance Regulation. More concerning was the fact that the Slough County Court - apparently oblivious to the workings of the Maintenance Regulation - had issued the application and had given standard directions which included the filing of a detailed financial statement, referred to above.

The strike out application sought by the wife was brought on a number of grounds including: 

  • Form A is wholly inapplicable to a Maintenance Regulation case as ‘financial order’ is defined in rule 2.3 FPR 2010 and an application may only be made in or after an application for a matrimonial or civil partnership order (i.e. divorce, nullity, dissolution etc.) – FPR 9.4 i.e. the husband’s free-standing application had no substantive underlying jurisdiction. 
  • Chapter VII of the Maintenance Regulation is the only conceivable route by which the English court could have the jurisdiction to vary a foreign maintenance order (N.B. Chapter VII is entitled ‘Cooperation between Central Authorities’ and sets out a very specific process, including a specific form, by which an application may be made). 
  • Sir Peter Singer disagreed with Mostyn J’s interpretation in EDG v RR [2014] EWHC 816 (Fam) where he identified that there were two available routes for enforcement – directly under Chapter IV of the Maintenance Regulation and through the Central Authority under Chapter VII. 
  • The former wife also argued, as an alternative, that the application should be struck out for abuse of process (as it was an undisguised exercise in ‘forum shopping’) and/or by virtue of FPR 4.4. This particular argument was not considered in any detail in the judgment as Penningtons Manches succeeded on points 1 and 2 above. The judge also felt it inappropriate to deal with these fall-back submissions given the pending Supreme Court decision in an appeal from Vince v Wyatt [2014] 1 FLR 246.

It is hoped that this judgment will provide some clarity in the operation of the Maintenance Regulation and, in particular, how to issue an application appropriately. The only route laid down by the Maintenance Regulation is via the Central Authorities and there is no permissible short-circuit option.

The case in a European context

While substantive family law ostensibly remains under the sole competence of EU countries, the EU is empowered to take measures concerning family law with cross-border implications on the basis of a special legislative procedure which make European rules directly applicable in member states. This jurisprudence has given rise to a variety of EU Regulations on family matters which have forever altered UK domestic family law. These regulations include: 

  • Brussels II R (Council Regulation (EC) No 2201/2003) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters;
  • the Rome III Regulation (Council Regulation (EU) No 1259/2010), implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (which, if the United Kingdom decides to opt into, would lead to judges throughout the UK applying foreign law);
  • perhaps the most controversial, the Maintenance Regulation, which is intended to ensure a consistent approach to the jurisdiction for and enforcement of maintenance orders which was the subject of AB v JJB. 

AB v JJB is a case which starkly illustrates the complexities of European family law in general and the Maintenance Regulation in particular. It is indicative of how international family law has become a minefield for practitioners. EU Regulations on family law matters are becoming ever more complex and difficult. 

These changes have led to a feeling among many family law professionals that the “Europeanisation” of domestic family law may have already gone too far and is, generally, not a positive development - other than creating interesting legal conundrums. If the goal of the EU regulations on family matters is to encourage integration by simplifying procedures, ensuring predictability of outcome and reducing costs, it has arguably failed.

Regulations which were designed to encourage predictable and cost-effective outcomes have achieved the opposite because of drafting which is, in part, poor, overly complex and arguably ambiguous. The problem is exacerbated by the fact that the Regulations have to cater for legal systems and procedures which may be completely incompatible with our own. While European cooperation on enforcement and protective measures is a good thing, one has to ask whether the Europeanisation of our domestic law is a positive development.

Source:AB V JJB (EU MAINTENANCE REGULATION: MODIFICATION APPLICATION PROCEDURE) [2015] EWHC 192 (FAM)  http://www.bailii.org/ew/cases/EWHC/Fam/2015/192.html

James Stewart is a partner in Penningtons Manches’ top ranked family team, a fellow of the International Academy of Matrimonial Lawyers (IAML) and General Editor of Family Law Jurisdictional Comparisons (Thomson Reuters). 

Gill O’Connor is a family lawyer with Penningtons Manches with a particular expertise in complex international cases.

Posted by:

James
Stewart

10 February 2015

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