Maintenance question referred to the European Court of Justice

Family Law|February 5th 2016

The High Court has asked the European Court of Justice to clarity the precise mechanisms for the international enforcement of maintenance awards.

MS v PS is a dispute between a German woman and an English man who married in 2005. They had two children and eventually separated after seven years together.

Divorce proceedings took place in a German district court, and in August 2014, the ex-husband was ordered to pay child maintenance. Later, however, the husband began to accumulate arrears, saying he wouldn’t pay because the court-ordered maintenance because his former wife was preventing him from seeing his children.

The wife applied for enforcement of the German maintenance order in the English courts, doing so under EU Regulation 4/2009, formally known as the Council Regulation (EC) on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. This sets out rules for maintenance disputes involving more than one member state.

In April last year the former wife’s application was transferred to the High Court for a ruling on a point of law: could such applications for enforcement be sent straight to the family court in the receiving country as she argued, or did they need to be sent to the central legal authority in the country first – in the case of the UK, the Lord Chancellor’s office?

The EU regulation specifies two routes for enforcement. Chapter IV article 41 states that enforcement orders issued in another EU member state should be handled by the courts in exactly the same way as those issued within the UK. Meanwhile, articles 55 and 56 of Chapter VII also declare that

“…all applications under this chapter shall be made through the Central Authority of the Member State in which the applicant resides to the Central Authority of the requested Member State.”

In the High Court, Mrs Justice Roberts noted an issue raised by Family Division President Sir James Munby in the 2014 case EDG v RR. Sir James said that there appeared to be a drafting error in the Civil Jurisdictions and Judgments (Maintenance) Regulations (2011), a piece of legislation which implements the EU regulation into English law. This specifies transmission only by the central authority, thereby apparently denying applicants the choice of routes specified in the EU regulation.

Mrs Justice Roberts concluded that the questions raised was of sufficient complexity and importance to merit referral to Europe. She declared:

“There were essentially two options open to me in this case.  I could ..…have adjourned the matter to enable appropriate representations to be made at a further hearing by or on behalf of the Ministry of Justice …  Alternatively, I could have adopted the course which is urged upon me by counsel for both the applicant and the respondent and refer the matter to the Court of Justice of the European Union.  On balance, it seemed to me that, in order to avoid further layers of delay and eliminate the prospect of further hearings in future, the appropriate course was to refer the question…”

She hoped, however, that the case would be dealt with swiftly, noting that more than a year had passed since the original enforcement order had been granted to the mother.

“At that stage, there were arrears up to the beginning of this year of a sum in excess of €6,000.  Those arrears are likely to be significantly greater now.  The arrears are directly referable to the financial support of two young children.  In my view, there are ample grounds in this case to request the European Court to consider an expedited hearing…”

The ruling is here.

Author: Stowe Family Law

Comment(1)

  1. Andy says:

    This just shows the inaccuracies of the current law regarding childaintenance..in essence to it all it is one big joke…the outcome to this case and costs will be thrown at the father and in the end will result to this is go to prison it’s cheaper…
    Then no one wins, just shows a new case law issue..

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