Cross-border Recognition
of Financial Orders
Christopher Wagstaffe Q.C., 29 Bedford Row, London
Introduction
1.
In most divorces three issues rise for consideration: status, arrangements for the children
and future financial arrangements. Within the context of international or multijurisdictional cases, issues of status are usually resolved according to the law of the
forum, and it is comparatively rare that the dissolution of of arrange by a court of
competent jurisdiction will not be given widespread cross-border recognition. 'Limping'
marriages, where a dissolution is recognised in some states but not in others, have largely
been consigned to history.
2.
In relation to the arrangements which are made for children, it is difficult to do justice in
just a few words to the progress which has been made since, in England, the Child
Abduction and Custody Act 1985 gave effect to the Hague Convention. Doubtless the
ongoing difficulties which still arise in Hague cases will be considered elsewhere during
this Congress, however for my purposes it suffices simply to recognise the exceptional
progress that has been made in this field, even if perfection is still a long way hence.
3.
Measured against that yardstick, it is indeed dispiriting to consider the difficulties which
practitioners across the globe encounter in seeking cross border recognition and
1
enforcement of financial orders made on divorce. When the current arrangements are
considered concerning the extent of international co-operation designed to give teeth in
one country to financial orders made in another, once conclusion is inescapable: it is
much too difficult to enforce in one part of the civilised world a financial order made in
another.
4.
Cases with an international dimension are substantially more common today than they
were (say) fifty years ago. Better communications and travel facilities and increased
geographical mobility mean this is a problem which many parts of our societies will
encounter: this is not simply a problem which concerns only the very wealthy.
Nonetheless, the arrangements which have been in place were devised the best part of a
century ago and are no longer fit for purpose: in particular they no longer meet the needs
of the litigants they were devised to protect. It is time, I suggest, that the international
family law community looks at ways in which the current arrangements for cross-border
recognition could be improved.
5.
To illustrate the need for change, I take three examples from my own practice, which in
my view provide a fair representation of the sorts of problems that litigants are
encountering.
6.
The first case I shall call the case of Mr & Mrs X. Mr X was a technician with the RAF.
He earned a reasonable income but nothing that could not be compared, say, to a police
officer or a fireman. He was moved to an air base in Texas as part of a team that was sent
to work with the US Air Force. They bought a house in Texas, they let their old home to
tenants, their three children went to school in Dallas.
2
7.
Sadly their marriage broke down and Mrs X met somebody else. She obtained a divorce
in Texas, and the court there dealt with their home in Texas, their other possessions and
the issue of maintenance. It did not deal with two valuable assets, the old family home in
Cambridgeshire and Mr X's RAF pension, which the Judge in Texas took the view he did
not have jurisdiction to deal with. To remedy that Mrs X brought proceedings in England
under the Matrimonial and Family Proceedings Act 1984, which permits an English court
to grant financial relief to a party who has some substantial connection with England.
More about this Act and the way it is utilised in practice appears below.
8.
However, there followed three developments. First, Mrs X married her new partner in
Texas, which terminated her own right to maintenance as a spouse under Texas law.
Secondly, Mr X retired from the RAF: he moved back to England and moved into the old
family home. That involved a change to his income because his RAF pension came into
payment, and he took some part time consultancy work, but the rental income the parties
had previously enjoyed was lost. Thirdly, the older child decided he wanted to live at
home with his father, so moved back to England with him.
9.
What that meant was that the Texas maintenance order, which now was essentially a
child maintenance order only, fell to be revisited at almost exactly the same time as the
English proceedings relating to the house and the pension fell to be considered. If the
English court divided Mr X's pension, his income would fall which would impact upon
his ability to pay child maintenance. If the family home was sold, he would need either to
rent or take ln a mortgage which again would have an effect on his income and his ability
to pay child maintenance. On the other hand, the quantification of Mr X's liability to pay
child maintenance would influence the exercise of the English court's discretion. So the
3
position which arose was a curious stand-off between the two jurisdictions, neither of
which wanted the effect of its order to be wholly undermined by any decision made in the
other, each of which respected the other's entitlement to deal with the issues before it.
That was a stand-off which, of course, cost the parties time and money.
10.
The second case arose in very different economic circumstances. Mr & Mrs Y were both
in England and moved to Austria in the early 1990s with Mr Y's work. When the
company he worked for was floated on the stock-market, Mr Y was awarded a number of
stock options. He exercised these and sold his shares at the height of the 'dot-com' boom.
He received around £15m. Before returning to England, Mr Y settled the proceeds of the
sale into a trust established in Gibraltar. By doing that before returning to England there
were considerable tax advantages of that arrangement.
11.
Time went by and Mr and Mrs Y's marriage came to an end. They had surprisingly few
assets in their own name in England. The family home was subject to a large mortgage,
for instance. Mrs Y sought to vary the Gibraltar Trust, and the English court joined the
Trustees as second respondents to the proceedings. The Trustees however played no role
in the English proceedings. The Trust was subject to Gibraltar law and to the exclusive
jurisdiction of the court of Gibraltar. What this meant was that Mrs Y had to litigate
twice: once in England, in order to obtain her substantive award which included the
variation of the Gibraltar trust, and then again in Gibraltar, to persuade the local court that
it was lawful and appropriate to give effect in Gibraltar to the English order. So the
proceedings took almost twice as long and cost substantially more than they otherwise
should have done.
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12.
The third case concerns a family whose means are far more modest. The mother and the
father of the child in question were not married, and a maintenance order was made in
France requiring the English father to pay maintenance to the French mother. He never
did, and he had no assets in France against which the order could be enforced. The
mother tried to enforce the French order in England through a number of different routes.
Some requests were completely ignored. Others she tried were blocked on technical
grounds. The child to whom the maintenance order related was X years old when the
French court first made a maintenance order but she had completed school and university
and was in her mid 20s by the time the mother finally enforced her award through the
Reciprocal Enforcement unit. The problem in that case was in all probability a lack of
familiarity with international enforcement on the part of the court to which the
application was made. It took an inordinately long time to enforce a very straightforward
order.
13.
These examples are far from isolated incidents. Cases with international dimensions are
not rare, but they are not so common that enforcement of them is routine and
straightforward.
14.
Where there is a divorce outside England in a case where the parties hold assets in
England there are essentially two ways in which a party might secure financial redress
from the English court:
(a)
By seeking to have the financial order made in the divorce proceedings
enforced in relation to the English assets, under English common law and
statutory principles (including European legislation); and
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(b)
By pursuing financial remedies in England ancillary to the overseas
divorce under Part III of the Matrimonial and Family Proceedings Act
1984. It is necessary to consider in a little detail each regime.
International Enforcement - basic principles
15.
A very substantial part of the problem is that there is no standard or universal mechanism
for enforcing orders made in one jurisdiction in another. Whether you can enforce an
order made in England in another jurisdiction (and vice versa) depends on what sort of
order you want to enforce and which jurisdiction you want to enforce it. It is necessary to
go back to first principles to understand properly how (from an English perspective)
international enforcement works in the modern context. Although modern reciprocal
enforcement arrangements are largely statute, treaty or regulation-based they can really
only be properly understood against the background of those first principles.
16.
One of the basic rules of the conflict of laws is that English courts enforce English laws,
not overseas laws. However, it has long been a recognised principle that English law
recognises that a judgment given in a foreign court of competent jurisdiction creates a
legal obligation - a right in personam - which can be relied upon in an English court
(Adams v Cape Industries PLC [1990] Ch 433). In other words, if A sues B in a foreign
jurisdiction, and wins, the obligation to satisfy that judgment is an obligation which
English law recognises, and proceedings can be brought in England not to enforce the
foreign judgment, but to obtain in England a judgment which can be enforced in the
ordinary way. It is not always the case that an action upon a foreign judgment will
6
succeed (foreign penal or taxing laws for instance are never so recognised, and defences
based upon public policy may be made out) but in general terms a judgment in a foreign
court is recognised in English law as giving rise to a separate cause of action before the
English court.
17.
Throughout the common law world, for the most part the same is true in reverse. Where a
judgment is obtained in an English court, that creates obligations which are generally
recognised around the globe, at least in common law jurisdictions. This is not to say that
recognition will inevitably lead to enforcement, or that enforcement follows smoothly and
inexorably: but the first step to enforcement is recognition and in some instances, this can
be enough.
18.
Accordingly, it is not accurate to say that where the practitioner seeks to enforce in
England a particular order made in a particular jurisdiction, if there is no reciprocal
enforcement arrangement in place then that in effect is that. English common law
recognises that an order made in a court of competent jurisdiction creates a legal
obligation which can found the basis of a further action to enforce that obligation in
England.
19.
In many Commonwealth (or former commonwealth) countries the converse is also true.
Even though there may be no reciprocal enforcement arrangements. Even in some
comparatively surprising locations (e.g. certain jurisdictions in the Middle East) a
successful right of action can be founded upon an English order.
20.
A good example might be where the English court makes an order seeking to vary
overseas settlements. The English courts have jurisdiction to vary ante- or post-nuptial
7
settlements anywhere in the world under s.24(1)(c) of the Matrimonial Causes Act 1973.
There are however no reciprocal enforcement arrangements with any jurisdiction (other
than Scotland and Northern Ireland) anywhere in the world whereby the person in whose
favour the order was made is entitled as of right to recognition and enforcement of that
order overseas. However, some jurisdictions are friendlier in this respect than others. The
courts in Jersey, for instance, will on the whole probably give effect to an English order
purporting to vary a settlement subject to Jersey law. This is not because the applicant
(say the Wife in the English proceedings) is entitled to enforce her order in Jersey; it is
because Jersey law recognises that an order competently made by an English court gives
the Wife a right of action in Jersey. The Jersey courts are in theory entitled to apply their
own equivalent to s.25 Matrimonial Causes Act 1973: they rarely do so however as a
matter of comity: that is to say, out of deference to the English court which has already
examined the question of who should get what in full. The same application made,
however, in the Caymans or in Bermuda might well get somewhat shorter shrift.
21.
So far as inward enforcement is concerned, to reverse the last example, suppose W and H
are divorced in Jersey. H, who has assets in Jersey, is ordered to pay W a lump sum. W
seeks to enforce the order against H’s assets in England. W cannot do so without more:
English enforcements methods (e.g. third party debt orders) are only available to satisfy
an English judgment. it would be open to W to simply bring an action - in essence for
debt - for recovery of the lump sum owed to her. It would be the English order that she
would be enforcing, when finally she comes to enforce it, not the Jersey order (albeit that
the Jersey order provides the basis for making the English order).
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22.
Subject to exceptions and the international Conventions, a foreign judgment in personam
given by the Court of a foreign country with jurisdiction to give that judgment and which
is not impeachable may be enforced by claim or counterclaim for the amount due in
proceedings in England if the judgment is
[a]
for a debt or definite sum of money not being a sum payable in respect of taxes or
other charges of a like nature, or in respect of a final penalty, and
[b]
final and conclusive (though a foreign judgment may be final and conclusive even
if it is subject to an appeal and though an appeal against it is actually pending in
the foreign country where it was given).
Whether maintenance orders are final and conclusive depends on the same criteria as that
applying to other foreign judgments. An order variable in respect of future payments may
be invariable insofar as arrears are concerned in which case an action may be brought for
the recovery of the arrears (Beatty v Beatty [1924] 1 KB 807 CA).
Reciprocal enforcement - the different regimes
23.
In relation to many countries, the United Kingdom has entered into bilateral or
multilateral arrangements where, without the need to bring proceedings based upon the
foreign judgment, the order can (subject to a process of registration) simply be enforced
as though it had been made by a local court.
24.
Fundamentally, two questions are important when seeking to enforce English orders
overseas:
a.
What type of order are you enforcing
b.
Where do you want to enforce it
9
Question (a) is important because many countries distinguish between enforcing
maintenance orders from other orders or judgments. Question (b) is important because in
some jurisdictions bi-lateral arrangements are in place so that recognition and
enforcement of a judgment.
25.
The arrangements enabling overseas orders to be enforced in England (and vice versa)
largely derive from a mixture of legislation, treaty obligations and European law. The
bedrock of these various provisions is that the applicant’s right, dealt with above, to bring
proceedings in Jurisdiction B based on a judgment in jurisdiction A is short-circuited by a
simple process of registration of the judgment, rather than having to begin from scratch.
That process was first introduced within the Commonwealth by reason of the
Administration of Justice Act 1920, which provided for the reciprocal enforcement of
judgments of superior courts within the United Kingdom on the one hand and
corresponding courts of other territories within the Commonwealth on the other.
26.
This legislation remains in force. Registration of a foreign judgment under the 1920 Act
is discretionary and not as of right, since it can be refused unless the registering Court and
all the circumstances of the case think it is just and convenient that the judgment should
be enforced in the United Kingdom. Registration is not to be ordered if the original Court
acted without jurisdiction or if the Defendant establishes one of a limited number of
defences which are similar to those available at common law. Some jurisdictions will
refuse point blank to register an English financial order other than a maintenance order.
27.
Where a judgment has been duly registered it is to have the same force and effect as the
judgment of the registering Court. Although the person entitled under a judgment
10
registerable under the Act is not deprived of the possibility of suing on it at common law,
the employment of the common law alternative is discouraged by provision that it should
ordinarily involve sacrifice of the costs of the claim.
28.
The 1920 Act remains generally in force but its application to territories to which it had
not already been applied was excluded by an order in Council made under the Foreign
Judgments [Reciprocal Enforcement] Act 1933 the intention being that the wider scheme
elaborated and the latter enactment should ultimately replace that of the 1920 Act.
29.
The Foreign Judgments Reciprocal Enforcement Act 1933 adopts the same system of
registration as the AJA 1920. The scheme of the 1933 Act is however wider than that of
the 1920 Act in that it is capable of application to countries completely foreign in the
political sense, ie not dependencies or former colonies. However, so far it has only been
applied to Austria, Belgium, France, Germany, Israel, Italy and the Netherlands, Norway
and Surinam and of countries within the commonwealth to Australia, Canada, India,
Pakistan, Tonga, Guernsey, Jersey and the Isle of Man.
30.
The 1933 Act is almost entirely superseded by Chapter 33 of the Judgments Regulation
44/2001, which took effect from 1.3.02 and in the case of Norway by part 1 of the Civil
Jurisdiction and Judgments Act 1982. The 1933 Act permits the registration of judgments
of courts of countries to which it applies within a period of six years of their
pronouncements. Registration is available as a right instead of merely at discretion as
under the 1920 Act, provided that any judgment sought to be registered has not been
wholly satisfied and is enforceable by execution in the country of the original Court.
11
31.
Registration may or must be set aside if the judgment debtor shows certain grounds and
execution may not issue until the time has passed within which an application for setting
it aside may be made. The 1933 Act contains detailed rules on when foreign courts are
deemed to have jurisdiction for the purposes of its provisions. Those rules are modelled
closely on those of the common law.
32.
Whilst different jurisdictions have different procedures concerning registration under the
Acts of 1920 and 1933 perhaps the important point to note is that the process of
registration and enforcement provides a somewhat more streamlined route towards
enforcement than the process of bringing a foreign action on the basis of an English
order. It cannot be denied however that the process is still difficult and cumbersome.
33.
Judgments from member states of the EU other than Denmark are recognised and
enforced under chapter 3 of Council Regulation 44/2001 which has largely superseded
the 1968 Convention (Brussels I). In 2001 the Brussels Convention was substituted by a
directly effective Regulation; Council Regulation No. 44/2001, known either as the
Brussels I Regulation or the Judgments Regulation. There are some relatively minor
substantive amendments and the Articles have been re-numbered. Brussels 1 now applies
to Denmark, which had opted out of the Regulation until the 2007 regulation SI 2007
/1655. The Lugano Convention, which was parallel to and in identical terms to the
Brussels Convention, remains in force in relation to a few non-Member States including
Switzerland. That Regulation took effect on 1.3.02 save in respect of the states which
acceded to membership of the EU on 1.5.04.
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34.
The 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in
Civil and Commercial Matters was brought into English law by the Civil Jurisdiction and
Judgements Act 1982. It expressly excluded from its ambit “rights in property arising out
of a matrimonial relationship”. However, it included maintenance. The ECJ considered
this interface in the context of an English financial provision order in Van den Boogard v
Laumen [1997] 2 FLR 399. See now also Moore v Moore [2007] 2 FLR 339.
35.
Article 5.2 of the 1968 Convention provided that jurisdiction in matters relating to
maintenance could be assumed by the Court where the maintenance creditor was
domiciled and habitually resident. In de Cavel v de Cavel no 2 Case 120/79 the European
court ruled that for the purposes of the Brussels Convention maintenance orders in the
context of matrimonial proceedings were within the scope of the Convention. However
rights in property arising out of a matrimonial relationship were excluded and still are.
This throws the creditor back to the common law where enforcement of European
matrimonial orders are concerned other than maintenance orders.
36.
Brussels II Revised 2201/2203 does not apply to property consequences of marriage
maintenance or any other ancillary measures arising out of a matrimonial relationship.
This is fundamental. However the court dealing with the breakdown of marriage will
normally have jurisdiction under Brussels 1 to deal with maintenance by virtue of Article
5.2 of Brussels 1. In Moore at para 30 the Court decided that the husband’s claim was not
a claim for maintenance. The essential object of the husband’s claim was the division of
wealth. It was not a claim by a wife for maintenance but a claim by the husband. The only
relevance to maintenance was to standard of living and that the package would meet her
13
reasonable needs. The essential object was to divide the capital assets. In reality there was
no element of maintenance.
37.
What does all this mean in practice? Within the EU, it is important to distinguish between
four separate types of orders:

Maintenance orders

Capitalised maintenance orders by way of lump sum provision

Other lump sum orders and other forms of capital provision

Costs orders.
In a nutshell, within the EU the applicant in English proceedings can enforce (a) and (b)
under Brussels I because they are sums ordered by way of maintenance or in lieu of such
(Van den Boogard v Laumen). She can also enforce (d) because a costs order does not
give effect to ‘rights arising out of a matrimonial relationship’.
38.
Outside the EU, there are many (11, not including the common law) different regimes for
enforcing English maintenance orders abroad and vice versa. They include:

Civil Jurisdiction and Judgments Act 1982, Part I

Maintenance Orders (Facilities for Enforcement) Act 1920 MOFEA

Maintenance Orders Act 1950 Part II
MOA

Maintenance Orders (Reciprocal Enforcement) Act 1972
MOREA
CJJA
Each of these statutory provisions applies to some forms of remedy but not others. Each
of these provisions applies to some countries and not others. In the standard family law
practitioner's work in England pages and pages are devoted to length tables setting out
what types of orders can be enforced in, and from, all the different territories of the
14
world. The types of English orders that can be enforced in Australia (and vice versa) for
instance are very different from the types of orders that can be enforced in South Africa.
You can enforce some English orders in some parts of Canada but not others.
39.
It is obviously neither practical nor possible in a short seminar to look at each country in
detail. The position can however be fairly summarised by saying that it far more difficult
and complex an issue than it should properly be in the 21st century.
The 1984 Act
40.
The second option available is the pursuit of a financial remedy in England consequent
upon the pronouncement of a divorce overseas. Not every applicant will be entitled to
pursue this relief: it is available only to those who satisfy certain jurisdictional
requirements: (a) domicile in England and Wales of either of the parties on the date of the
application for financial provision or on the date when the divorce in the foreign country
took effect; (b) habitual residence of either of the parties for one year ending on the date
of the application or the foreign divorce; or (c) a beneficial interest by either or both, at
the date of the application, in a dwelling-house in England and Wales which was at some
time during the marriage used as a matrimonial home.
41.
Once permission has been granted there are a variety of factors which need to be
considered in determining how (if at all) the court should exercise its powers. Section 16
provides:
"(1)
Before making an order for financial relief the court shall consider whether
in all the circumstances of the case it would be appropriate for such an
order to be made by a court in England and Wales, and if the court is not
15
satisfied that it would be appropriate, the court shall dismiss the
application.
(2)
The court shall in particular have regard to the following matters—
(a)
the connection which the parties to the marriage have with England and
Wales;
(b)
the connection which those parties have with the country in which the
marriage was dissolved or annulled or in which they were legally
separated;
(c)
the connection which those parties have with any other country outside
England and Wales;
(d)
any financial benefit which the applicant or a child of the family has
received, or is likely to receive, in consequence of the divorce, annulment
or legal separation, by virtue of any agreement or the operation of the law
of a country outside England and Wales;
(e)
in a case where an order has been made by a court in a country outside
England and Wales requiring the other party to the marriage to make any
payment or transfer any property for the benefit of the applicant or a child
of the family, the financial relief given by the order and the extent to which
the order has been complied with or is likely to be complied with;
(f)
any right which the applicant has, or has had, to apply for financial relief
from the other party to the marriage under the law of any country outside
England and Wales and if the applicant has omitted to exercise that right
the reason for that omission;
(g)
the availability in England and Wales of any property in respect of which
an order under this Part of this Act in favour of the applicant could be
made;
(h)
the extent to which any order made under this Part of this Act is likely to
be enforceable;
(i)
the length of time which has elapsed since the date of the divorce,
annulment or legal separation."
The court has the power to make the sorts of orders for financial provision, pension
sharing and property adjustment which it could have made following an English divorce.
of the Matrimonial Causes Act 1973, and pension sharing orders within the meaning of
16
Part I of the 1973 Act. Where however the jurisdiction of the court depends on the
matrimonial home having been in England and Wales its powers are more restrictive.
42.
The way in which the court should approach applications under the 1984 Act was
consider recently by the Supreme Court in Agbaje v Agbaje [2010] 1 AC 628. Lord
Collins said at para 13:
"In deciding whether to exercise its powers under section 17, and, if so, in what
manner, the court must (by section 18) have regard, so far as material to this
appeal, to three matters. First, the court is to have regard to "all the circumstances
of the case, first consideration being given to the welfare while a minor of any
child of the family who has not attained the age of eighteen" (section 18(2)).
Second, as regards the exercise of those powers in relation to a party to the
marriage, the court is to have regard to the matters mentioned in section 25(2)(a)(h) of the 1973 Act (section 18(3)). Third, where a foreign court has made an
order for payments or the transfer of property by a party to the marriage, in
considering the financial resources of the other party to the marriage, the court is
to have regard to the extent to which that order has been, or is likely to be,
complied with (section 18(6)).
Section 18(2) of the 1984 Act is in the same terms as section 25(1) of the
Matrimonial Causes Act 1973, which also directs attention to "all the
circumstances of the case", and section 25(2) of the 1973 Act contains the familiar
list of factors to be taken into account in the exercise of the statutory discretion,
which is designed to achieve a fair outcome: White v White [2001] 1 AC 596;
McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618."
Prior to the Agbaje decision, the Courts had approached the jurisdiction under the 1984
Act conservatively. The rationale for a conservative approach had been that relief under
Part III relief was limited to the financial relief necessary ‘so as to remedy the injustice
perceived to exist without intervention’ (applied by Bodey J in A v S (Financial Relief
after Overseas US Divorce and Financial Proceedings) [2003] 1 FLR 431.
43.
The Supreme Court held however that it was wrong in principle to do so in all cases:
there is no statutory basis for this limitation, and it is contrary to principle, because what
might be an apanimate in some circumstances might not be appropriate in others. In one
17
case, little or no additional provision beyond that ordered by the original court might be
appropriate. In another case it might be appropriate to make the sort of order which would
have been made following an English divorce.
44.
In considering this issue the Supreme Court made it clear that issues of forum conveniens
and comity do not arise. The Court does not have to consider with which jurisdiction the
marriage had the closest connection, but whether it would be appropriate for an order for
financial relief to be made by a court in England. As Lord Collins observed at para 49:
“No choice between jurisdictions is involved. The whole basis of Part III is that it
may be appropriate for two jurisdictions to be involved, one for the divorce and
one for ancillary relief ”
Lord Collins explained the task for the Court when considering making a Part III order.
He stated (para 71):
"To take up some of the points made in the preceding paragraphs, the proper
approach to Part III simply depends on a careful application of ss 16, 17 and 18 in
the light of the legislative purpose, which was the alleviation of the adverse
consequences of no, or no adequate, financial provision being made by a foreign
court in a situation where there were substantial connections with England. There
are two, interrelated, duties of the court before making an order under Part III.
The first is to consider whether England and Wales is the appropriate venue for
the application: s 16(1). The second is to consider whether an order should be
made under s 17 having regard to the matters in s 18. There are two reasons why
the duties are interrelated. First, neither s 16(2) nor s 18(2) and (3) refers to an
exhaustive list of matters to be taken into account. Section 16(1) directs the court
to have regard to 'all the circumstances of the case' and s 16(2) refers the court to
certain matters 'in particular'. Second, some of the matters to be considered under
s 16 may be relevant under s 18, and vice versa. An obvious example would be
that s 16(2)(e) refers the court to the financial provision which has been made by
the foreign court. Plainly that would be relevant under s 18. So also the direction
in s 18(6) to the court, in considering the financial resources of a party, to have
regard to whether an order of a foreign court has been complied with would
plainly be relevant in considering whether England is the appropriate venue.
The matters to which the court is to have regard under section 18(2) are ‘all the
circumstances of the case, first consideration being given to the welfare of any
18
minor children’. Section 18(3) requires the court to “in particular have regard to
the matters mentioned in section 25(1) and 2) of the 1973 Act...”.
No award can exceed the level of an award made in conventional ancillary relief
proceedings, but there is a very wide range of possible awards depending on the
circumstances of the case.
45.
Two examples are given at the extremities to illustrate the range of an award:
a.
where there is a strong English connection and a wife is divorced abroad by talaq
in a "big money" case, there is no reason not to apply English law so as to give
the same provision for the wife as she would have obtained had there been
divorce proceedings in England. There would be no need for any enquiry as to the
minimum required to remedy the injustice. Nor, if the wife had independent
means, would an enquiry into hardship be necessary or relevant.
b.
at the other end of the spectrum, where the connection with England is not strong
and a spouse has received adequate provision from the foreign court, then it will
not be appropriate for Part III to be used simply as a tool to "top-up" that
provision to that which she would have received in an English divorce. In such
cases mere disparity between that award and what would be awarded on an
English divorce will be insufficient to trigger the application of Part III.
It follows from all of this that an applicant might be entitled to pursue in England the sort
of award she might have received after an English divorce, but not every applicant is
entitled to bring a claim under the 1984 Act, if she is able to do so there is a wide range of
possibilities in terms of what provision will be made, and in any event she will have to go
19
through a similar lengthy and expensive procedure as if she had divorced there in the first
place. She will have to litigate twice.
Conclusions
46.
The difficulties with cross-border are easy to state: it is far more complex and costly to
enforce in one state a financial order made in another than it should be. But the
difficulties are not insurmountable. Thirty years ago it was difficult and costly to enforce
orders made in one state about children in another. The Hague Convention gives
considerable cause for optimism, that if there is a political will, appropriate mechanisms
can be put in place to enable greater cooperation between courts faced with resolving the
financial issues which arise when a relationship breaks down, as exists when the courts
are considering the child-related issue which arise.
47.
In the context of child abduction, the Hague Convention 'works' because the contracting
states acknowledge on acceding to the Convention the guiding principle that the courts
best placed to deal with the welfare of children are those where the child is habitually
resident. It is difficult to see why in modified form that principle, or something very like
it, could not be applied in financial cases. There is scope for debate as to what the
principle should be: my own personal view is that jurisdiction should be yielded to the
courts of the jurisdiction with which the parties have their closest and most enduring
connections. This may be the country of their nationality or domicile or habitual
residence, or some other test.
48.
Whatever the test is, however, if there is acceptance of that jurisdictional basis amongst
the international community of nations, it is difficult to see why issues of recognition and
20
enforcement should not fall rather more easily onto place as has been the case with the
introduction of the Hague Convention into the domestic laws of the contracting parties. In
short, if there is a will to make this happen, it is not beyond the international family law
community to find a way to make it happen. What is needed is the will.
21
OVERVIEW OF REGIMES
The statutory regimes all share the concept of registration of foreign orders as a prerequisite to
enforcement. This is a kind of filter, which varies from regime to regime.
Following registration, the order is in principle enforceable as though it had been made by the
court in which it is registered.
The UK is also a signatory to several international conventions on maintenance obligations such
as:
UN Convention on Recovery Abroad of Maintenance 1965;
Hague Convention on Recognition and Enforcement of Decisions relating to Maintenance
Obligations 1973
There are at least 11 distinct regimes for enforcing English orders, for maintenance made in
family proceedings, abroad and vice versa. They are as follows:
Civil Jurisdiction and Judgments Act 1982, Part I
CJJA
Administration of Justice Act 1920
AJA
Foreign Judgments (Reciprocal Enforcement) Act 1933
FJ(RE)A
Maintenance Orders (Facilities for Enforcement) Act 1920
MOFEA
Maintenance Orders Act 1950 Part II
MOA
Maintenance Orders (Reciprocal Enforcement) Act 1972,
MOREA
European Enforcement Order Regulation (EC) No 805/2004
EEOR
Council Regulation (EC) No 44/2001
BRUSSELS I
Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial
Matters 1968
BRUSSELS
Lugano Convention 1988
LUGANO
22
Enforcement at common law is also available and is effected by an ordinary civil claim brought
in reliance on the foreign judgment. This remedy is not available to enforce maintenance orders
provided they are variable. However it remains available to enforce accrued arrears (provided
they are not capable of remission).
A new Hague convention was approved in November 2007 including some jurisdictions with
which the UK had no previous reciprocal enforcement arrangements – including Russia, China,
Japan and Iran. The Vatican State (the Holy See) is (beguilingly) also a signatory.
23
INWARD ENFORCEMENT
The following questions should be addressed when approached to enforce a maintenance order
made abroad:
Does Country in which the Order was made come within a statutory regime for reciprocal
enforcement?
Does the Order come within the ambit of that regime?
Is there a definition of “maintenance” in the regime?
If not, can you argue that the order falls within the scope of regime?
If not, is there another regime, which applies to that country which does encompass an order
such as yours?
Was the Order made by a court of a level to which the regime applies?
Are the preconditions to registration in E&W met?
What is the effect of registration here? Consequences for future variation applications.
Which court will be responsible for enforcement of the order and what are the methods of
enforcement available? What input with that court need from either party?
What rights does the payer have in terms of cancelling/appealing registration or
variation/discharge of the order?
If there are no regimes, can you enforce at common law?
OUTWARD ENFORCEMENT
Once the application has been sent abroad, it will be enforced according to the laws that prevail
in the foreign country. The UK Courts/authorities have no power to compel foreign courts or
authorities to enforce maintenance orders or to set a timescale for their enforcement, as the
system is based on mutual co-operation.
The Court will send the application to the relevant central authority to begin the recovery of
maintenance. The UK will often help in periodically checking on the progress of the case with
the foreign authorities, depending on the regime used.
24
The following questions should be addressed:
Is there any domestic alternative to international enforcement?
Consider whether you can short-circuit the procedure in any way ie through DCA
What is the effect of transmitting the order abroad?
Consider whether protective measures should be taken prior to or ancillary to enforcement
proceedings.
What are the enforcement procedures available to foreign courts?
What right does the payer have to resist enforcement?
How will enforcement abroad affect the payee’s rights in UK?
25
CIVIL JURISDICTION AND JUDGMENTS ACT 1982
Provides for reciprocal enforcement in UK of money and non-money orders
Does NOT apply to magistrates’ courts’ judgments OR to orders which may be enforced in
another part of UK under Part II of MOA 1950
CJJA s18(5) ie MOA s16
Therefore it appears that the provisions do not allow for enforcement of maintenance orders and
as such are not dealt with in this note.
ADMINISTRATION OF JUSTICE ACT 1920
Provides for reciprocal enforcement of money judgments made by High court in UK and those
countries of the Commonwealth.
Category of countries and territories to which it applies is now closed and upon Part I of
FJ(RE)A 1933 being extended to a particular country Part II of this Act will cease to apply.
Part II applies to any judgment whereby any sum of money is payable. Sums of money payable
under maintenance are not specifically excluded from the scope of the Act.
See Shearn v Shearn [1931] P 1
Assumed an order for PPs could be enforced in Malay
States under Part II.
Nevertheless it is suggested that in those cases where a reciprocal enforcement regime relating
specifically to maintenance orders is also available the 1920 Act should not be used. Such
regimes extend to all of the 1920 Act countries [except British Indian Ocean Territory].
As such the procedure is not dealt with in this note.
FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1933
In relation to European countries been rendered effectively obsolete by 1968 Brussels and
Lugano Conventions and Brussels I Convention.
26
Judgments must be final and conclusive.
Therefore maintenance orders will fall outside the scope of the Act, if they are capable of
variation.
It is suggested, however, that arrears that are not susceptible to remission may be enforced under
Part I.
Availability of registration of judgment under Part I of this Act acts as a bar on enforcement of
that judgment by any other method
s6
Inward – Application made to High Court
Outward - Procedure governed by RSC Ord 71. Application made without notice to DJ
27
MAINTENANCE ORDERS (FACILITIES FOR ENFORCEMENT) ACT 1920
MO(FE)A
Largely repealed by MO(RE)A 1972 but remains in force for those countries who did not sign up
to MO(RE)A. Will be wholly repealed when MO(RE)A section 22 (2) (a)(c) is brought into
force by order s49(2)
Made in those parts of the Commonwealth outside UK NOT covered by MO (RE) A 1972
NB Does not apply to Republic of Ireland
Only final orders OR provisional orders that have been confirmed, can be enforced.
Maintenance = “periodical payments or sums of money towards the maintenance of the Wife or
other dependents of the person against whom the order is made”
Dependants = “such persons as that person is liable to maintain according to the law in force in
the country in which the maintenance order was made s10
Cases: Harris v Harris [1949] 2 All ER 318; Collester v Collester [1972] 1 All ER 334;
INWARD
Governed by FPR r7.17(1) (High court) and MO (FE) R 1922 r1 (Magistrates’ Court)
Lord Chancellor upon receipt shall send to either:
PRFD is made by court of superior jurisdiction abroad;
Magistrates court where Payer is living if order made by court of summary jurisdiction
Senior DJ or justices’ chief executive enters order into the register. In Magistrates court, the
court will order payment to be made through an officer of the court or such other person as the
court may specify, unless satisfied it is undesirable to do so.
Order has full retrospective effect from date specified in the order
Registration is an administrative act and Respondent cannot appeal against registration
s1
Order is enforceable as an order made in E&W. Monies collected are to be sent to either the
Court which made the order or any authority as directed by Lord Chancellor.
NB Some
countries have specific provisions in this respect.
Court’s power is limited to enforcement and does not extend to variation or discharge: Pilcher v
Pilcher [1955] P 318 [Does this survive the Human Rights Act?]
28
The Court may, however, remit arrears due under the Order: Pilcher v Pilcher (No 2) [1956] 1
All ER 463
OUTWARD
Payee may apply
High Court Orders - Governed by FPR r7.17(2) – (5)
Documents required for transmission of High Court orders:
Certified copy of order;
Affidavit stating reason for believing payer residing in that territory
Payer’s address and occupation so far as known
Any other requirements of that territory to be included in affidavit
Application made to DJ of PRFD
No procedure prescribed for transmission of County/Magistrates Court orders
Documents required for Magistrates Court order:
Certified copy of order
Information sufficient to ascertain the whereabouts of the payer (including last known address),
his identity
Certificate of marriage
Birth certificate of any relevant child
Name and address of justices’ chief executive
Order made by High Court, county Court or Magistrates’ Court are not precluded from Act
s2
County Court Orders – not subject to FPR r17(2) and as a precaution it is advisable to transfer
the proceedings to the High Court.
Where maintenance order made and it is proved to Court that person against whom order is made
is resident in country to which Act extends, Court must send documents to Lord Chancellor for
transmission abroad.
No provisions affecting court’s ability to discharge or vary maintenance order, but enforcement
will be subject to any equivalent powers which corresponding legislation in country of
registration may accord.
29
MAINTENANCE ORDERS ACT 1950 Part II
MOA
Applies to UK (ie England & Wales, Northern Ireland and Scotland)
No definition for maintenance BUT Act lists those provisions under which maintenance orders
are made to which the Act applies. IE “maintenance and other payments” made under specified
statutes eg MCA 1973 [ss22, 23 (1), (2), (4) (7)], Schedule 1 to CA 1989, MFPA 1984 [s14
&17], DPMCA 1978 [ss1-35]
s16
Order MUST be transmitted if Court is satisfied that the debtor is resident in the other
jurisdiction and it is convenient that order should be enforced there
s17(2)
Once registered, enforceable as it made by registering Court
s18(1)
NB No court in E&W may enforce the order to the extent that it is for the time being registered
under Part I of MOA 1958
Court which made order retains exclusive jurisdiction to vary or discharge it.
Either party may adduce evidence in registering court for transmission to court hearing
variation/discharge application
However application to vary the rate of payments may be made to registering court if it is an
inferior court ie Magistrates. For purposes of variation a court make take notice of the law in
force in the other part of UK. If order varied, notice is to be given to registering court or court of
origin.
Payee may apply to registered or original court to cancel registration – No discretion to refuse
application unless proceedings for variation are pending.
Payer may apply for cancellation – where it appears he/she has ceased to reside in the registering
country.
INWARD
Application by original court sending prescribed documents to court in England
Court of Session/Supreme Court of NI – transmitted to PRFD. Otherwise the court of summary
jurisdiction acting for place in which Payer resides
On receipt the order is registered.
30
NB Scottish order that carries interest will continue to do so if registered in High Court but not in
County/Magistrates’ court
Court order payment through collecting officer of court or an alternative means of payment may
be made. This may be varied or revoked by a subsequent order
NB Scottish order registered in High Court, payer may on application adduce in High Court
evidence for the purpose of variation or discharge proceedings in original court.
OUTWARD
Person entitled to payment under order may apply or on that person’s behalf
s17(2)
NB where sums are payable under magistrates’ order to or through the court officer, that officer
must, on request of person entitled, make application on his behalf.
Application made to Court which made order or justices for same place as magistrates court that
made the order.
High Court or County Court – Governed by FPR r7.19(1)
Certified copy of order
Affidavit stating
address & occupation of Payer
date order served or reason for no service
reason why convenient order should be enforced in Scotland or NI
amount of any arrears
that the order is not already registered
Copy of affidavit
Magistrates Court - MOA 1950 (SJ) R 1950
Applicant to make oral or written application for registration
Unless applicant appears in person, a statutory declaration must be lodged containing the
following information
address of payer
reason why convenient that order should be enforced in Scotland or NI
Amount of arrears if no certificate has been lodged
31
Statement that order not already registered under Part II
High Court will send copy and affidavit to Court of Session (Scotland) or Supreme Court of
Northern Ireland
r7.18
County/Magistrates Court will send copy and affidavit to Sheriff clerk of Sheriff Court
(Scotland) or clerk of Court of summary jurisdiction in whose area payer resides (NI)
s17 FPR r 7.19(2) (6)
In Northern Ireland, enforcement is undertaken by the Court s18, 20(3)
In Scotland, enforcement must be taken in payee’s own name and legal representation is
advisable
s18, 20(3)
32
MAINTENANCE ORDERS (RECIPROCAL ENFORCEMENT) ACT 1972 Part I
MOREA
This is the major consolidating Act relating to enforcement of maintenance. It is divided into
two separate parts.
Part I is the primary legislation under which the REMO process operates in the UK and applies
to certain designated countries, “reciprocating countries”. Part II is dealt with separately.
The provisions have also been extended, subject to modifications, to US, Republic of Ireland and
States which are parties to Hague Convention on Recognition and Enforcement of Decisions
Relating to Maintenance Obligations
In summary, this act covers generally existing and former Commonwealth countries and US.
Most important Act for Non-EU cases
NB there have been several statutory instruments since 1972 to adjust the precise arrangements
between UK and other countries, or to allow additional jurisdictions to be considering
reciprocating countries. Reference should accordingly always be made to any secondary
legislation by which the provisions of Part I are applied
Enforcement is based upon the payer’s residence or the location of his assets in the
reciprocating country (CJJA 1982 amended to include location of assets). NB Exceptions!
Maintenance = an order (including an affiliation order) which provides for the payment of a
lump sum or the making of periodical payments towards maintenance of any person, whom the
payer according to the law applied in the place where the order was made, is liable to maintain
s21
Affiliation order = being an order which provides for payment by a person adjudged, found or
declared to be a child’s father of expenses incidental to the child’s birth, or his funeral expenses
and also the payment of school fees.
s21
Procedure is governed by:
In Magistrates court the rules are MC (REMO) R 1974
33
In High/County Courts by FPR r7.31 – 7.36
Cancellation of Registration is obligatory in following circumstances:
Following revocation of order by registering court
Following provisional revocation by registering court which has been confirmed by court in a
reciprocating country, and notice of confirmation has been received
Following revocation of order by a Court in reciprocating country and notice been received by
registering Court
Where officer of court is of the opinion that the payer is not residing in jurisdiction and has no
assets within jurisdiction.
INWARD
Order can be enforced even if the English Court itself might not have had the power to make it
providing it would be enforceable under legal system of country where order originally made
Lord Chancellor receives a copy of maintenance order and if it appears that the payer is residing
in E&W or has assets in E&W he must send it to the prescribed officer of the appropriate court
Appropriate Court = In ALL cases, magistrates court where payer resides or where assets are
located. If justices’ chief executive is satisfied that payer is not residing in E&W and has no
assets within jurisdiction then he shall return the order to Lord Chancellor s6(4). If so satisfied
the officer shall register the order: the payer has no right to appeal of objection or appeal
Order is enforceable as a magistrates’ court maintenance order. Once registered, a maintenance
order can be re-registered in the High Court under Part I of MOA 1958
Can notify payee of means of enforcement including registration in High Court under Part I of
MOA 1958. Includes powers exercisable under s59, 76 and 93 of MCA 1980. There is an
obligation on the payer to inform clerk of registering court of any change of address, failure to do
so attracting a fine on summary conviction of not more than level 2 of standard scale.
Justices’ chief executive is under a duty where arrears amount to 4 weekly payments, to take
enforcement proceedings in own name if it is reasonable to proceed
Justices’ chief executive is under a duty to take reasonable steps to notify payee of steps
available for enforcement of the order.
34
Sums to be paid, if expressed in a foreign currency, are calculated on basis of exchange rate
prevailing at date of registration of order or date of last variation.
Written certificate of a bank officer in UK is evidence of rate of exchange at that time
Payments are to be made to justices’ chief executive who will send the payments to the court
which made the order or such person as the Secretary of State may direct
NB MC (REMO) R 1974 Sch 2 Where reciprocating country is listed in schedule 2 payments
must be sent to Crown Agents for Overseas Governments and Administrations for transmission
to person to whom they are due.
VARIATION OF INCOMING PART I ORDERS
Magistrates have power to vary, discharge or revoke a registered order as if it made order itself,
except it cannot if neither payer nor payee are resident in UK.
Variation has to be provisional UNLESS:
Both parties are resident in UK;
Application made by payee;
Variation consists of reduction in rate of payments solely on grounds that there has been a
change in financial circumstances of payer and courts which made order do not have power to
confirm provisional orders varying maintenance orders.
Revocation has to be provisional UNLESS:
Both parties are residing in UK
In revocation cases the Courts must apply law of reciprocating country UNLESS both parties
residing in UK
Variation is ineffective until confirmed
Applicability
The basis procedure is modified for each group:
Ireland
Modifications by REMO (RI) O 1993
Governed by FPR r7.37 and MC(REMO)(RI)R 1975 SI 1975/286 as amended by SI 1992/457,
SI 1993/617, SI 2001/615
35
Order not registered if contrary to public policy ie if payer did not appear and was not duly
served with summons or if order is irreconcilable with judgment given in UK in proceedings
between same parties
s6(5)
On registration, notice must be given on form specified by MC (REMO) (RI) R 1975 Sch Pt 1
and must be given to payer
Right of appeal against registration is provided
Right of appeal against refusal to register is provided
Written authority to enforce order is required.
s9
s10
Partial registration and enforcement of order is authorised
Order is expressed to be enforceable as an affiliation order
Hague Convention Countries
Modified by REMO (HCC) O 1993 and REMO (HCC) (V) O 1999
Governed by FPR r7.38 and MC(REMO)HCC) R 1880 SI 1980/108 as amended
Registration may be refused if:
error of jurisdiction in court which made order,;
if registration is manifestly contrary to public policy;
if order obtain by fraud in connection with matter of procedure;
36
if there are similar proceedings pending between same parties in UK and those were first to be
instituted;
if order is incompatible with a similar order between parties in UK or another country and latter
order fulfils conditions necessary for registration
Justices’ chief executive will refuse to register if payer did not appear in proceedings in which
the order was made (unless notice of proceedings was served in accordance with law of that
country and payer had sufficient time to enable him to defend proceedings.
Appeals procedure – payer has one month from service of notice to appeal to the court to set
aside registration
USA
Modified by SI 2007/2005 and SI 2007/2006
Governed by FPR 7.39
US Orders registered here may no longer be varied or revoked by English Courts.
OUTWARD
Application to court which made order
Documents to be filed in High/County Court
FRP r7.31
Affidavit stating reasons for believing that payer resides in country in question, current arrears
(when calculated) and date when next payment falls due
Certified copy of maintenance order
Statement giving all known information as to payer’s whereabouts, identity (including employer,
occupation and date and place of issue of passport) and if possible a photograph
NB In cases of Australia, Canada, New Zealand, South Africa, if the payer’s address is unknown
the court can cause enquiries to be made
PD of 10.2.76
Documents to be filed in Magistrates Court
r4 of 1974 Rules
37
Specify date on which order made
Contain particulars as to payer’s whereabouts and nature and location of assets
Any matters likely to assist in identification of payer and if possible a photograph
NB If payee relying on ground that payer has assets in foreign country rather than residence,
affidavit/application should also state the reasons for believing that fact and set out nature and
location of assets
If satisfied that payer is residing in, or has assets in, reciprocating country, Court will send
relevant documents to Lord Chancellor to be transmitted s2
Certified copy of order
Certificate signed by officer of court certifying that order is enforceable in UK
Signed certificate of arrears
Statements giving information about payer
Lord Chancellor has a discretion to transmit them or not
Transmission abroad does NOT affect the jurisdiction of the court which made the order to
enforce, vary or revoke it
VARIATION OF OUTGOING PART I ORDERS
Foreign court has power to vary/revoke the order subject to confirmation of reciprocating
country.
Where court hearing application for variation proposes to grant it by increasing the rate of
payments it must do so by a provisional order UNLESS:
Either both parties appeared in the proceedings; or
Applicant appeared and process was duly served on other party
Where foreign court has made a provisional order varying maintenance order, UK courts, upon
receipt of provisional order and document summarising evidence, the Court may confirm order
with or without alteration or may refuse to confirm it
Before confirming variation/revocation, English court must consider evidence and must proceed
as if an application for variation/revocation had been made to it.
S5(6)
Revocation will not affect arrears due at that date.
38
Variation is ineffective until confirmed
Applicability
The basis procedure is modified for each group
Ireland
Applies to Ireland – modified by SI 1993/594
Applicant also files a statement that payer appeared in proceedings or document establishing that
notice was served on him and a certified copy of any legal aid certificate held by payee
Procedure for registration on basis of assets in Ireland not available
Governed by FPR r 7.37
Hague Convention Countries
Modified by SI 1993/593 and SI 1999/1318
Governed by FRP r7.38
Affidavit must state whether the time for appealing against the order has expired and whether an
appeal is pending
Payee must file in addition a statement as to whether the payer appeared in the proceedings and
if not a document establishing that notice of substance of claim and notice of the order was
served on him and whether the payee had legal aid for those proceedings or this application
Procedure for registration on basis of assets in Contracting State is not available.
39
NB Problem can be circumvented if reciprocating country also signatory of UN Convention for
Recovery Abroad of Maintenance 1956
United States of America
Modified by SI 2007/2005 and 2007/2006
Enforcement with henceforth be effected on a federal basis – up until now it has been on a state
basis.
Therefore no longer be possible to state-hop to avoid enforcement.
4 states who refused to sign up to agreement, are now automatically brought within scope of
enforcement.
Governed by FPR r7.39
Information required is to be in form of sworn statement.
3 certified copies of order must be send
English orders registered in US may no longer be varied or revoked by US Courts
Australia, Canada, New Zealand, South Africa
If whereabouts of payer is unknown, useful practice note sets out procedure. At the time of, or
before the application for transmission, a questionnaire needs to be lodged with DJ and a written
undertaking that any address of the payer obtained in response to these enquiries will not be
disclosed or used otherwise than for purpose of these proceedings.
40
EUROPEAN ENFORCEMENT ORDER REGULATION
(EC) No 805/2004
Judgments, court settlements and authentic instruments arising from uncontested claims may be
enforced under this regulation.
Applied as from 21.10.05 – may be used as an alternative to Brussels I
Applied to all judgments given, court settlements approved or concluded and documents
formally drawn up or registered as authentic instruments after 21.1.04
Regulation applies in civil and commercial matters generally and maintenance claims are not
excluded by Art 2(2). Maintenance obligations are expressly referred to in the definition of
“authentic instrument” 4(3)(b) and can be concluded with administrative authorities or
authenticated by them. It would therefore seem that a child support maintenance calculation falls
within the scope of the regulation.
Maintenance = includes obligations imposed on spouses either by legislation or by the courts for
the period after divorce.
Uncontested claim = where debtor has:
Expressly agreed to it by admission or by settlement which has been approved or concluded by
court
Has in course of court proceedings never objected it
Made what amounts to tacit admission
Has expressly agreed to it in an authentic instrument.
Applies to all MS except Denmark
The regulation does not affect the application or right to use Brussels I or the Service
Regulation?
Regulation abolished exequatur – Therefore no need for creditor to obtain a declaration of
enforceability in Member State where enforcement is sought (or in UK to obtain registration of
the judgment)
Conditions for certification of Judgment as EEO
Judgment must be enforceable in Member State of origin
41
Art 6
Judgment must not conflict with rules on jurisdiction laid done by section 3 & 6 of Chapter II of
Brussels I
Court proceedings in Member State of origin must comply with minimum standards prescribed
by regulation in relation to matters such as service.
DO NOT apply to certification of court settlements and authentic instruments?
No procedure specific to family proceedings has been prescribed.
Other proceedings are
governed by CPR rr 74.27 – 74.33.
EEO may be rectified if discrepancy between judgment and certificate
EEO may be withdrawn if clearly wrongly granted
Application made to Court of origin and law of that State will apply
Enforcement procedures are governed by law of Member State.
No appeal against issue of EEO
Enforcement will only be refused if judgment or EEO is irreconcilable with earlier judgment
(not settlement or authentic instrument) given in another country. Art 21(1)
Earlier judgment must
involve same parties and same cause of action;
be given in MS of origin or fulfil conditions for recognition in MS;
Irreconcilability was not and could not have been raised as an objection in court proceedings in
MS of origin.
In NO circumstances may the substance of the order be reviewed in Member State of
Enforcement.
Where
debtor
challenges
Judgment
which
has
been
certified
or
applies
rectification/withdrawal of EEO, competent court or authority may on application by debtor:
Limit enforcement proceedings to protective measures
Make enforcement conditional on provision of such security as it shall determine
Under exceptional circumstances, stay the enforcement proceedings
INWARD
42
for
Creditor must lodge at court an official copy of judgment, court settlement or authentic
instrument and a copy of EEO certificate with a translation, where necessary
Where creditor seeks to enforce EEO in foreign currency by way of charging order, writ of fieri
facias, warrant of execution or attachment of earnings order, application must contain a
certificate of sterling equivalent of the judgment sum at the close of business on the date nearest
preceding application.
Creditor must notify court if judgment is set aside in court of origin.
Enforcement procedure governed by English law, save as provided by regulation
Art 20(1)
Application for stay of enforcement made under CPR 1998 Part 23.
OUTWARD
Application for certificate made by filing relevant practice form
Form N219
Judgment by agreement/admission/settlement
Form N219A Judgment in default of defence or objection
Made to DJ
Where granted, court will send EEO certificate and sealed copy of judgment to person making
application.
Where refused, court will give reasons and may give further directions
EEO is issued in standard form, in original language.
Annex I
Judgment
Annex II
Court settlement
Annex III
Authentic Instrument
Where judgment has ceased to be enforceable a certificate indicating lack or limitation of
enforceability shall be issued using the standard form.
Application for rectification/withdrawal of EEO – made in accordance with Part 23 of CPR 1998
and must be supported by written evidence. See PD 74B
43
BRUSSELS I REGULATION
EC (No 44/2001) of 22.12.00 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters.
Entered into force on 1.3.02 – EC and Denmark have reached an agreement applying to
Denmark the provisions of Brussels I. Agreement entered into force on 1.7.07. The Civil
Jurisdiction and Judgments regulations 2007 SI 2007/1655 amend CJJA 1982 and make other
amendments to give effect to this agreement.
Applies to authentic instruments and court settlements in addition to judgments
Maintenance = Includes obligations imposed on spouses either by legislation or by the courts for
the period after divorce [Case 120/79 De Cavel v De Cavel (No 2) [1980] ECR 731]
Judgment = any judgment given by a court or tribunal of MS. Orders not obtained following an
enquiry are excluded
Arrangements relating to maintenance obligations concluded with administrative authorities or
authenticated by them are regarded as authentic instruments – therefore CSA calculations would
seem to be capable of coming within definition.
3 fundamental principles:
Judgment will be recognised without any special procedure being required
Art 33
Exclusive jurisdiction is conferred on the courts of the state in which judgment has been or is to
be enforced
Art 22
a judgment or maintenance order declared enforceable shall be of same force and effect as if had
been made by registering court.
In NO circumstances may the substance of the judgment be reviewed
Objections to Recognition
Manifestly contrary to public policy
Where judgment given in default of appearance of payer and not served in sufficient time with
notice of proceedings
Judgment is irreconcilable with judgment given in dispute between same parties in state in which
recognition sought
44
Judgment is irreconcilable with earlier judgment given in another state involving same cause of
action and same parties provided earlier judgment fulfils conditions necessary for recognition.
Jurisdictional grounds
Art 22(5)
No special procedure for recognition
Copy of judgment and certificate attached to application.
Procedure for application governed by law of MS in which enforcement sought
Judgment is declared enforceable immediately upon completion of formalities.
Debtor not entitled to make submissions at this stage
Creditor may apply for provisional protective measures without declaration of enforceability
Right of appeal by either party against decision on an application for a declaration.
Declaration may be refused or revoked on appeal.
Court may make enforcement conditional on provision of security.
Creditor entitled to legal aid in original MS shall be entitled to most favourable treatment so far
as entitlement to legal aid in enforcing MS.
INWARD
Secretary of State shall transmit maintenance order to magistrates’ court
Choice of Magistrates’ Court is determined by reference to domicile of payer or “place of
enforcement” [ie where assets are located]
If justices’ chief executive is satisfied that payer resides or has assets (?) within jurisdiction the
order is registered
If not, the order is returned to Lord Chancellor
An appeal against a decision made on application for registration is by complaint to magistrates’
court.
OUTWARD
Must produce a copy of judgment and certificate in prescribed form
Procedure in High/County Courts is governed by CPR 74.12 and 74.13 and PD 74 paras 7.1 –7.4
Procedure in Magistrates Court is governed by MC (CJJA 1982) R SI 1986/1962 r12
Payee must obtain a declaration of enforceability from foreign court
No assistance afforded by UK court or authorities.
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BRUSSELS 1968 OR LUGANO 1988 CONVENTIONS
CCJA 1982 gave effect to Brussels Convention (EEC countries) and Lugano Convention
(between EU countries on one hand and EFTA countries save Liechtenstein on the other IE
Iceland, Norway and Switzerland).
Brussels I has now superseded the Brussels Convention 1968 save in relation to Aruba and
French overseas territories
The purpose of the Conventions is to enable reciprocal enforcement of maintenance orders.
Any interested party may apply to the court which made the order for a certified copy to enable
him to apply to the relevant court or authority of a foreign state for enforcement of the judgment
there
Once registered, enforceable as if made by registering court.
Right of appeal to both parties if registration made or refused.
Substantive law and procedure are very similar to that under Brussels I
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OBTAINING FRESH ORDERS
In the event that there is no existing maintenance order in place there are a number of methods of
obtaining such an order against a Respondent residing abroad under the above regimes. They are
summarised as follows:
MO (RE) A 1920
Provisional order made by Magistrates courts against payer residing in reciprocating country
s3
Provisional only and of no effect unless and until it is confirmed by competent court overseas.
Overseas court may remit matter for taking of further evidence
Following confirmation – magistrates have the power to entertain an application to vary or
discharge the order.
s4A
Contrast this with lack of power to vary/discharge any order simply registered for
enforcement
Magistrates may confirm provisional order made in foreign country where payer resides here.
S4
Parties can oppose confirmation and court can remit matter to overseas court for further
evidence.
Following confirmation – magistrates have the power to entertain an application to vary or
discharge the order. s4A
MAINTENANCE ORDERS (RECIPROCAL ENFORCEMENT) ACT 1972 Part I
MOREA
The procedure is the same as set out in the preceding section save that it is governed by the 1974
Rules and MOREA 1972.
Documents to be sent to Lord Chancellor for transmission are:
Certified copy of order;
Document setting out evidence
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Certificate stating the grounds on which the payer might have opposed making an order;
Statement giving information as to payer’s whereabouts and identity.
Scheme does NOT apply to US
MAINTENANCE ORDERS (RECIPROCAL ENFORCEMENT) ACT 1972 Part II
MOREA
Part II creates an entirely distinct regime for pursuit of maintenance claims by applicants residing
in UK as against Respondents resident or having assets in states which are party to the UN
Convention on the Recovery Abroad of Maintenance
Maintenance = same definition as Part I
In circumstances where the payer has gone to a country to which only Part II of MOREA applies,
the appropriate method of enforcement is to apply for an order under Part II.
It should be noted that, as the application has to comply with the laws of the reciprocating
country it is possible to make a claim for maintenance for only those types of entitlement
recognised by reciprocating country – these may be narrower, or wider, than ours.
Legal aid is not available for an application under Part II of the 1972 Act.
Incoming
Claim received by Lord Chancellor
Transmitted to magistrates’ court where payer resides
Claims treated by magistrates’ court as an application for maintenance made under Domestic
Proceedings and Magistrates Courts Act 1978 or Children Act 1989 (if claim for children alone)
Once made, maintenance order is registered in magistrates’ court whereupon it may be enforced
in usual manner.
Outgoing
Applications for recovery of maintenance from a person residing in another Convention Country
are made to magistrates’ Court and are transmitted to foreign court by Lord Chancellor.
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