Italian Londoner fails in claim for maintenance under UK law

Children|Divorce|News|September 24th 2013

Italian flagAn Italian mother living in London has failed in her attempt to apply for child maintenance in this country, after a judge ruled that the English courts lacked jurisdiction.

In EA v AP she and her husband, also Italian, enjoyed a wealthy lifestyle in London. He worked as a hedge fund manager, and the couple owned several properties in the city, making them habitually resident in the capital. They have two children, now aged nine and four.

After the couple split, the husband filed a petition for separation in the Italian courts in February last year, beginning the divorce process under Italian law. Meanwhile the wife launched her own proceedings for financial support in the English courts, on the basis of their habitual residence in the UK. She was apparently unaware of her husband’s action in Italy at the time.

However, since the husband’s application for separation had already been filed in Italy, it took legal precedence under Brussels II Revised, an EU regulation which governs conflict of laws in international family cases. The wife’s application was therefore stayed (suspended).

A complex series of proceedings continued, characterised by Mrs Justice Parker as “considerable jockeying for position”.

In October, the wife applied to the Child Support Agency, and then filed for child maintenance, under Schedule 1 of the Children Act 1989, which governs financial provision for children. She applied for a lump sum, periodical payments, and the transfer of property “for the benefit of the children”.

At a hearing in Italy in November, a judge declared that “there is no doubt as to the jurisdiction of the Italian court to examine the filed petition for separation as both parents are Italian”.

However, it also held that the court would not “issue any ruling on the custody of the minor children or the related maintenance payments, holding that this court does not have jurisdiction to do so.”

The husband disputed this claim, saying that the original Italian phrasing had been an expression of opinion only and that the courts could have jurisdiction in child maintenance. He filed a petition with the Italian Supreme Court, which the wife’s lawyer disputed. The case is continuing.

Meanwhile, the husband also disputed a Child Support Agency ruling that he should pay £400 per week in maintenance for the couple’s two children. He claimed the Italian courts were already ‘seised’ (responsible for) child maintenance, as he had filed his original petition before the wife.

At the High Court, Lady Justice Black considered whether or not the English courts could deal with the wife’s application under Schedule 1 of the Children Act, given the provisions of EU regulation (EC) No 4/2009. This deals with the legal issues surrounding the payment of maintenance.

Article 12 refers to legal precedence in questions of jurisdiction:

“Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised [the court in which proceedings were first filed] shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”

Lady Justice Black concluded that the jurisdiction of the English courts had not been established, but noted:

I recognise that this may cause hardship and injustice to the wife, but it is, in my view, the only principled way in which the dispute can be determined.”

 Photo by Floris M. Oosterveld via Flickr under a Creative Commons licence

Author: Stowe Family Law

Comments(3)

  1. Jonathan says:

    A Little Story about the unjust and ludicrous world in which we live.
    I am a normal sort of bloke, 56years old, born on a British military base in Germany. Parents from Lancashire and Yorkshire.
    Lived a very pleasant childhood, growing up in London, Newcastle and Sweden. Managed to go to University in Hull and then started a working life in Retail.
    All was what we would classify, a normal life, and eventually I decided it was time to settle down at 31years of age. I married a Finnish woman who had a daughter aged 4.
    My son arrived on the scene, and then the usual domestic routines set in. Me, working hard and long hours in retail, commuting, buying house, selling house, moving.
    Many ‘nice’ holidays in various parts of Europe and even South Africa.
    Two cars, two children and of course a Flymo lawnmower, ‘domestic bliss’.
    Moved to Sweden for a few years with the family, then on to Belgium where things started to go wrong, although the marriage was really never very fantastic.
    So the inevitable happened, I met a younger woman and had what is so beautifully called an ‘affair’, the first indiscretion in twenty years of being a well behaved husband and a dedicated father, And me being an ‘honest’ sort of bloke, decided to leave my wife.
    After all the traditional dramas and emotional stuff, including clothes in bin liners chucked out on the street, shouting, hate mail, stealing all the domestic appliances, hiding even my guitar … I moved in with my new partner, even though this was not the original intention, I had nowhere else to go.
    Over the next few months decided it was time to ‘have a depression’, which actually I think I had. Received many wonderful letters from a solicitor demanding I attended court in England (even though living in Belgium) and asking for money and costs. As I was not really in contact with the real world, I ignored most of the correspondence.
    Just to add to life’s rich tapestry, my partner was diagnosed with ALS, which meant she would not be around for long, (normal life expectancy after diagnosis around three years). So I took time off work to take care of her through this debilitating illness. She had three young kids that also were part of my life at that time.
    Meanwhile the British solicitor belonging to my wife continued to threaten and send letters and demands which I tried to deal with without much success, but unable to afford any legal representation I tried and tried.
    December 2011 my partner died, and of course life stopped for a period of time. But guess what?
    The solicitors continued to harass and chase me, even though they were fully aware of my life situation (partner gone, working a challenge, still some kind of depression and enormous financial difficulties.)
    So now it gets even more interesting:
    I decided to get legal help, even though I had no money available, I just had enough.
    So I contacted a few people in the UK (as divorce proceedings were to be in Leeds County Court, where of course anyone who is living in Belgium with a Finnish Ex wife should have a hearing to decide a divorce !) Strange how these things are decided somewhere out in the Legal World.
    I tried to challenge the jurisdiction of the British Court and came up against predicted enormous legal costs to challenge this. Again as no funds available and on legal advice I had to drop it.
    After various court orders to pay 1000€ per month and costs and other things, I finally made it to court in the UK.
    Just to give you a feeling of my financial position, income after tax was around 2500€. We had sold any property when we left Sweden, and lived in a rented house in Belgium.
    All the income I had, plus money from selling houses, plus my mother inheritance were wasted on a lifestyle that my wife wanted, (remember those holidays and cars and eating out?)
    So when I left her, basically we were in debt, with a car loan and credit cards.(still have the debt to pay even today) and no property.
    Hopefully you get the picture? Just to be clear, the Ex wife works part time for the EU parliament as a PA to a European Member of Parliament in Brussels. Nice work if you can get it!
    So where are we now?
    Divorce proceedings went ahead in the beautiful metropolis of Leeds.
    A very charming judge decided that I smoked too much, went out to restaurants too much and should start paying my ex wife 200€ per month until the day I die.
    He also thought that this was not enough, so to add to the pleasure, he decided I should split my very small pension fund with the darling ex wife. Which means even when I retire and take my small pension, she will also be taking half, and from my small pension I have the pleasure of still paying her 200€ per month until I die. That seems so logical and fair in my eyes.
    Oh, and I gave my wife an old sports car, with a little rust, as it was the only ‘possession’ I had left. Not because I felt generous, but that nice judge told me I had to.
    And what happened to poor me?
    Believe it or not, I fell in love with a wonderful Swedish girl and we are now living together, me back in Sweden, and we have just had a beautiful baby daughter.
    So where is the justice and correctness in this matter?
    The British courts say First Family First. Does that mean I should pay for my old wife and not take care of my baby daughter? My son is now 23 and independent.
    My legal costs are £12500.
    Back Maintenance to the woman £4500
    Legal costs to pay to woman’s solicitors £3200
    Debts outstanding from the sham of a marriage around £8000
    My income today is still around the same 2500€
    I would be grateful if anyone could tell me how I came to be in the situation?
    The threat of prison has been mentioned by the British Courts, I have been treated like a criminal from the very first day, I am sure my baby daughter would appreciate her father being locked away in a nice British Prison.
    Who helps me, as an individual in this disastrous scenario?
    Just because I left my wife, life has become unliveable because of the constant pressure of what needs to be paid. My future with my new partner and baby girl is the only thing I should be thinking about.
    Just to add a little extra spice to this sad, but stunningly interesting saga:
    From January next year, I most probably will be unemployed as my contract finishes here in Sweden. But I am sure the British Courts will ask me to pay 200€ per month to keep my ex in facial make up which she so desperately needs 
    That is it: The Little story about the unjust and ludicrous world in which we live.
    Anyone got any solutions, or do I just sink away in anonymity and hide from the British Courts for the rest of my life.
    Oh, and I sent a claim to the European Court of Human Rights, and guess what? They declined my application for the financial rights of my child.
    Long live British Courts and the Legal system, and thank you Europe for your input.

  2. Luke says:

    “I would be grateful if anyone could tell me how I came to be in the situation?”
    ============================

    Well I’m afraid most of it is pretty simple, it comes down to one act –
    YOU GOT MARRIED
    – once you sign the marriage certificate the British courts “own” you 🙁

  3. rosie says:

    Marriages do come to an end. But was there not a mutual understanding of some sort. If you both weren’t getting on why did your ex hang on? Why could you not have come to an agreement? Personally it might have been better representing yourself. I have no respect for solicitors or judges when this I the end result. Hang on to what you have. Time is a healer. You loved and lost but found new love. Don’t regret any of it. We are human after all.

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