French mother wins right to enforce maintenance in the UK

Family Law|April 23rd 2014

A French mother has won the right to pursue her husband for maintenance through the English courts.

In EDG v RR, the woman launched proceedings for enforcement of an order for maintenance made in the French courts in May last year. The father of her now two year-old son was ordered to pay  €1,200 per month in child maintenance.

At the High Court, Mr Justice Mostyn noted:

“The child lives with his mother, EDG. His father is RR, who is a trader working in the City of London. If the father were a trader working in the City of Paris, he would be liable upon enforcement of that order to have his assets seised, his earnings attached, to be imprisoned for up to two years and/or to be subjected to a fine of €15,000.

The enforcement regime here in the United Kingdom is not quite so rigorous, but the mother nonetheless wishes to invoke it. Since the judgment of 14 May 2013, the father has not paid a centime for the maintenance of his son, pursuant to his obligations under the order.

Therefore, the mother wishes to enforce the order here.”

The mother sough to enforce the proceeding through the Principal Registry of the Family Division. Normally foreign maintenance orders are enforced through magistrates courts, but the mother in this case wished to take advantage of a provision (rule 33.3) in the Family Procedure Rules 2010, which allows for “such method of enforcement as the court may consider appropriate”.

She wanted the overdue maintenance to paid directly to her.

Mr Justice Mostyn considered whether not she was entitled to apply to the Principal Registry. He considered the EU Maintenance Regulation No 4/2009, which governs child and marital maintenance obligations in cases involving the legal system of more than one EU member state.

Article 41 of the Maintenance Regulation states:

“Subject to the provisions of this Regulation, the procedure for the enforcement of decisions given in another Member State shall be governed by the law of the Member State of enforcement. A decision given in a Member State which is enforceable in the Member State of enforcement shall be enforced there under the same conditions as a decision given in that Member State of enforcement.”

According to the judge, this meant that applications for direct enforcement of a foreign maintenance order should be treated the same as domestic orders.

He also highlighted a problem with the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, which sets out the procedure for enforcement of foreign maintenance orders in England.

A reference in Schedule 1 of the Regulations in to Chapter IV of the Maintenance Regulation should in fact be a reference to Chapter VII, he claimed, or the legislation would in effect deny applicants the right to apply to any court other than magistrates’ court to enforce the foreign orders.

“I would invite the draftsmen in the Ministry of Justice to consider an amendment to the 2011 Regulations”

Mr Justice Mostyn concluded:

“I have no hesitation in concluding that… the mother here is entitled to issue her application for general enforcement in the Principal Registry.”

Author: Stowe Family Law

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