THE 2007 HAGUE CONVENTION : THE EXPERIENCE FROM EUROPE OF
THE EU MAINTENANCE REGULATION
Professor David Hodson OBE MICArb
and
Lucy Greenwood
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Professor David Hodson OBE MICArb and Lucy Greenwood
www.iflg.uk.com
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] Introduction
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Topics
Across Europe there are some 500 million citizens
The EU Maintenance Regulation was much-needed
I will be looking at:
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1. Background
2. Some of the issues in practice of the EU Maintenance Regulation
3. How these might aid regarding the 2007 Hague Convention.
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Professor David Hodson OBE MICArb and Lucy Greenwood
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History
Background
In 1983 EEC became EC
Extension from commerce to areas of personal and community life
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Background (cont’d)
In 1998 in Vienna a plan was adopted for family law. It comprised 4 sections:
1.
Maintenance
2.
Divorce
3.
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Property consequences in relationship breakdown and
4.
Wills and Succession
This imperative is driving Brussels Law Reform
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Background (cont’d)
In 1999 at Tampare, Finland
It was agreed there would bewww.iflg.uk.com
greater work towards mutual recognition of
court judgements and orders with closer harmonization of legislation
The overt policy was the creation of a combined European area of civil
justice, including family law.
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Background (cont’d)B
December 2007, Treaty of Lisbon brought further developments about:
• Access to justice
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• Alternative methods of dispute resolution
• Development of judicial co-operation in cross-border matters
(See particularly Art 81)
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Background (cont’d)B
June 2014 – European Council set its priorities for a 5 year plan towards
A combined area of justice without internal boundaries.
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Considered vital for there to be a true European area of justice and that
mutual trust of one another’s justice systems should be enhanced.
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Professor David Hodson OBE MICArb and Lucy Greenwood
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EU’s Regulations/Directives
The EU has power to make Regulations which are immediately effective
within the domestic law of member states and they have no opportunity
to resist.
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(Unless, like the UK an EU country
has an opt out provision).
Directives are of informative and consultative basis with longer periods
of implementation.
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General views about EU’s intentions
Praiseworthy and laudable
However in practice, for example:
•
Justice systems throughout
the EU are very different and
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procedural timescales very variable
•
Cultural and social differences impact on EU countries’
approaches to family law
•
Different procedures and levels of disclosure are sought
•
Sometimes there are agreements without separate advice
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Other practical issues
A deficit of understanding throughout many EU countries for the
continuing need for “an international approach” to family law cases
But there remain significant variations in outcomes between in particular
UK and most of the EU.
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Does Applicable law resolve this?
The pace of change has not been possible for some to keep up
A focus on civil, codified legal systems so its legislation is often at odds
with those countries that practice common law (of which of course the UK
is one)
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Other practical issues
The disparity in legal systems coupled with other facts like:
•
UK has very many international families living in the UK and abroad
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UK’s common laws have very different traditions
•
•
UK is perceived as an attractive place for divorce for the weaker financial
party owing to the perception that its settlements are more generous.
So there remains a degree of conflict in family laws between UK and the rest of
the EU.
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Brussels II
The Brussels Regulation (2001/2003)
Introduced March 2001 (replaced in March 2005)
The leading EU family law.
Introduced:
•
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Identical divorce jurisdiction across the entire EU (a good development on
the whole)
•
The country in which divorce proceedings are issued first, lis pendens, seizes
jurisdiction (so no more forum non-conveniens arguments) – again good in
theory, but contrary to the worldwide favoured approach of promoting
conciliatory divorces. There is now often a race to issue (primarily for financial
reasons ancillary to divorce)
• Brussels II does not deal with financial matters as such
• It also has provisions for cross EU recognition of children orders and provisions
concerning child abduction
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EU exclusive competency
The EU considers it alone has the power to negotiate with non-EU countries
Regarding entry into international conventions.
The 1980 Hague Convention on child abduction - EU has refused to allow
member states to sign up with new signatory countries such as Singapore
until the EU decides to do so en-masse,
so:
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If a country in South East Asia wanted to enter into a maintenance
agreement for enforcement with an individual EU state it would not be
possible or allowed.
Similarly, even if a number of countries in South East Asia wished to
invite individual EU countries to do so, it would not be possible.
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EU universal application
The EU considers it has powers to make orders binding on EU member states
in its dealings with non-EU member states
So for example in the EU Maintenance Regulation jurisdiction of
England in a case concerning
England and say, Hong Kong is now
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limited by the EU Maintenance Regulation
It is having an effect on forum disputes and the extent of claims available to be
brought in EU member states in a non-EU case; with some significant and
unfair consequences.
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Choice of law and applicable law
A crucial element of the EU Maintenance Regulation is the concept of choice
of law found in civil law jurisdictions.
England (a common law country) will only ever apply English Law,
Many civil law countries in Europe will “apply” the law of another country.
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e.g. Where the couple
reside in Spain, are both British nationals and
bring proceedings in Spain but “choose” English applicable law the
courts in Spain will seek to apply English law to their Spanish
proceedings.
Applicable law caused delay in the Maintenance Regulation’s implementation
A compromise was reached through the sensible intervention of The Hague
protocol on applicable law in 2007 introducing slightly different approaches
for the non-applicable countries (which are only UK and Denmark).
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Other legislation
There is other EU legislation regarding :
Service
Taking of Evidence
Legal Aid
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Mediation and similar
Further EU legislation in the pipeline:
Draft legislation is expected by the end of 2015 about sharing aspects of matrimonial
property
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Brussels I to The Maintenance Regulation
Whilst Brussels I primarily used in the civil commercial context
The Maintenance Regulation (4/2009) arrived on 18 June 2011
Designed to streamline the reciprocal enforcement process –
In most circumstances enforcement
in the other member state without
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any intervening registration process.
Has also involved bringing together provisions on: Jurisdiction; Conflict of
Law; Recognition and Enforceability; Legal Aid and Co-operation between
member states ; including a greater role for Central Authorities.
Its drafting took place alongside the Hague 2007 Convention and it shares
many common features.
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Other practical implications arising from The MR
It is a complicated piece of legislation and yet it applies to so many people throughout the EU
and indeed further afield.
•
Any maintenance agreement in writing will now determine jurisdiction.
•
The first to issue principle found in Brussels II still applies (so now there is a rush
to issue maintenance in your chosen country)
•
Maintenance is not givenwww.iflg.uk.com
any distinctive meaning (but is not limited to
periodical payments)
•
Its universal application including over non-EU states was an unexpected and
unwelcome surprise to practitioners
•
It takes priority over Hague 2007
•
In England it has caused many changes to domestic procedural rules
•
It only covers “needs-based” claims , so if needs are met sharing can still be made.
So issuing first in time for divorce so sharing can be dealt with is still important
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Maintenance Regulation: Jurisdiction
It applies to:
Marriage, Civil Partnerships, Parent child relationships and some wider relationships
Court settlements and authentic instruments which can include mediation outcomes
Child support outcomes where a court has registered this with EU authorities
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Primary grounds for jurisdiction are habitual residence of the defendant or creditor
Court, which has divorce jurisdiction and the Court which has jurisdiction for parental
responsibility proceedings
* In the last two scenarios this is not available if the only basis of jurisdiction is sole
domicile.
It does not confer status or legal capacity or rights in property, Wills or succession. It
covers maintenance only
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Jurisdiction (cont’d)
Choice of Law
The parties can also choose a particular country’s laws to apply to their
maintenance situation; provided they have sufficient connection to that
country.
It has to be in writing, but could be in solicitor’s correspondence (unwittingly
as well as intentionally) and might
not be agreed with the benefit of
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independent legal advice
This jurisdictional basis is of real concern in England
Common nationality or common domicile
Forum Necessitatis – a sweeping up jurisdiction when proceedings cannot be
brought or conducted or are impossible in a third state and provided there is
sufficient connection. This is being used by English Courts to overcome the
injustice of sole domicile law where it is clear England has a suitable
connection.
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Jurisdiction (cont’d)
Jurisdiction is limited when there has already been a maintenance decision.
The paying party cannot start proceedings in another jurisdiction if the receiving party
remains in the country where the original decision was made
In the last couple of months the European Court, CJEU has handed down a decision
which says child maintenance should be heard in the country where the child is
habitually resident (regardless ofwww.iflg.uk.com
whether other financial proceedings are continuing
in another jurisdiction)
Many practitioners favour a hierarchy of jurisdiction rather than the basic “first in
time” principle.
Sometimes there is scope to move the first in time proceedings to another jurisdiction
if there are “related proceedings”*
* If they are so closely connected that it is expedient to hear and determine them
together to avoid risk of irreconcilable judgements resulting from separate
proceedings
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Bifurcations
The consequence of first to issue proceedings is that there is increasing likelihood of
bifurcations where divorce is dealt with in one country, spousal maintenance in
another, child maintenance in another and perhaps even sharing of some marital
assets in a forth country
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Definition of maintenance
It has been held by a leading CJEU decision that it means in effect “needs” as distinct
from “sharing”
England is a “needs based” jurisdiction and marital assets will be shared equally unless
they are required to meet needs
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In England needs ‘trumps’ sharing
So maintenance orders can be pension sharing orders, lump sum or transfer of
property.
Good practice to describe provision as maintenance to aid enforcement.
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Maintenance Regulation : MR:
Maintenance Regulation recognition and enforcement
Automatic recognition of maintenance orders around the EU via Central
Authorities
Recognised as if a local order, so can be enforced as if a local order using
all local remedies
Automatic enforcement of maintenance orders around EU except UK and
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Denmark which requires additional
registration process before
enforcement*
* Provisions are complicated and local advice should be sought
Very restrictive exemptions to automatic registration/enforcement
Obligatory Public funding to a standard at least available to other
nationals
The Central Authorities involvement has at times added another rather
frustrating layer of process/administration.
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Professor David Hodson OBE MICArb and Lucy Greenwood
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Conclusion
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Professor David Hodson OBE MICArb and Lucy Greenwood