Maintenance enforcement applications ‘can be made directly’

Divorce|February 14th 2017

People who apply in another EU member state for the enforcement of a maintenance order can do so directly, the Court of Justice of the European Union has ruled.

MS v PS concerned a German couple who married in 2005, eventually separating seven years later. They have two children, aged nine and five at the time the case began. In 2014 their divorce was finalised by a district court in the northern town of Walsrode. The Judge also made a child maintenance order.

Later, the father,  referred to as ‘Mr S’, moved to the UK, while his ex-wife and their children remained in Germany. He defaulted on his child maintenance payments, claiming the mother was obstructing contact with his son and daughter.

She applied for enforcement of the German maintenance order in the English courts, on the basis of EC Regulation No 4/2009, which governs “the jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations”. But the proceedings were adjourned and the case referred to the European Court to clarify a point of law, namely whether an application for enforcement of maintenance obligations such as that made by the mother in this case may be issued directly in the relevant jurisdiction (in this case England); or whether it first needed to be lodged with the central authority in that jurisdiction (in the case of England, the Lord Chancellor). Article 49 of the Regulation No 4/2009 states that:

“Each Member State shall designate a Central Authority to discharge the duties which are imposed by this Regulation on such an authority.”

Following careful consideration, the European Court of Justice concluded that direct application was sufficient and there was no need for claimants to involve the central legal authority. The Judges wrote that any requirement that they first refer to this central authority would in fact be contrary to Article 41(1) of the Regulation, which declares:

“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.”[in this case England]

Read the full ruling here.

Photo of Walsrode by trombone65 (PhotoArt Laatzen) via Flickr under a Creative Commons licence

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