The 2009 Maintenance Regulation deals with maintenance within the EU as and from 2011. There are common rules on jurisdiction, applicable law, recognition, enforcement and cooperation. There are standardised European documents for recovery of maintenance within the EU.
The Regulation applies both to spousal maintenance, child financial support, both lump sum and periodical payments. It may also apply to transfers of property, where the purpose is to provide for needs including the accommodation needs of spouses and children.
The exact scope of the Regulation is not clear; it appears from the European Court of Justice jurisprudence, that it is likely to give a broad interpretation to maintenance. In its broader sense, the Court has said that where provision is awarded which is designed to enable one spouse to provide for himself or herself and if the needs and resources of each of the spouse are taken into consideration in the determination of the amount, the decision will be concerned with maintenance. Classification of payment as maintenance is not dependant on whether the sum is by way of lump sum order or periodical payment.
The jurisdiction in matters relating to maintenance in Member States lies with:
- the court for the place where the defendant is habitually resident;
- the court for the place where the creditor is habitually resident;
- the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or
- the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.
The parties may take jurisdiction on any of the above bases. The parties may agree that a court will have jurisdiction to settle the dispute in relation to maintenance. This may be a court of a State in which the parties are habitually resident or one of the parties is habitually resident or the court of a State in which one of the parties is a national;
In the case of maintenance obligations between spouses and former spouses, it may be the court which has jurisdiction to settle their dispute in matrimonial matters or the court of the State which was the Member State of the spouse’s last common habitual residence for a period of at least a year.
Either of the above three options may be chosen as the court when the agreement is entered, or the court is seised of the matter.
Court Seised of Claim
Where the issue in relation to whether a court is seised of proceedings under the Regulation arises, the court is deemed to be seised at the time when the document instituting the proceedings or equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take steps that is required to have the service effected on the defendant or if the document has to served before being lodged with the court, at the time when it was received by the authority responsible for the service. This is provided that the claimant has not subsequently failed to take the steps required to have the document lodged with court.
Where a respondent habitually resident in a jurisdiction other than the State where the action is brought, has not entered an appearance, the court which has jurisdiction must stay proceedings for so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence and that all necessary steps have been taken to this end.
Usually Automatic Process
Maintenance orders are to be recognised and enforced in Member States without any particular procedure to adopt them into the State of recognition or without the possibility of it being opposed. No declaration is required of enforceability.
However, a defendant who did not appear in the State where the order originates may apply for review of the decision before the court of that State where he can show that he was not served with the document instituting the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange his defence or he was prevented from contesting the maintenance claim by reason of force majeure or due to extraordinary circumstances without any fault on his part. This is unless he failed to challenge the decision when it was possible for him to do so.
Where the laws of a State in which enforcement is sought include grounds for the refusal or suspension of enforcement, they may be applied in answering a request from the maintenance debtor insofar as they are not incompatible with certain provisions in the Regulation.
The authority on the application of the debtor in the State of enforcement may refuse either wholly or in part, the enforcement of a decision of the court of origin if the right to enforce the decision is extinguished by prescription or limitation action, either in the State of origin or the State of enforcement whichever is longer.
The authority of the State of enforcement may on application of the debtor refuse enforcement of the decision if it is irreconcilable with a decision given in the Member State of enforcement or with a decision given in another State or in a third State which fulfils the conditions necessary for its recognition in the State of enforcement.
Suspension of Enforcement
The authorities in the State of enforcement may on the application of the debtor suspend wholly or in part enforcement of the decision if the court in the State of origin has been seised of an application for review of the decision.
In enforcing a decision, the claimant is to provide the enforcement authorities in the State of enforcement with
- a copy of the decision compliant with conditions necessary to satisfy authentication;
- extract from the decision issued by the court of origin;
- documents showing the amount of arrears;
- where necessary a transliteration or translation of the content of the form comprising the extract from the decision into the official language of the State of enforcement. Amend above.
Any translation must be done by a person qualified to do translations in one of the States.
The declaration of enforceability is to be submitted to the Member State of enforcement, to the court or competent authority of the Member State of enforcement notified by the State under the Convention.
The Brussels Convention provides for the reciprocal recognition and enforcement of civil and commercial judgments generally, including maintenance orders. The Brussels Convention did not cover lump sums in connection with divorce or judicial separation as such. However, lump sums and maintenance orders for the support of a spouse or children may be enforced.
The Convention do not apply to the status of or the legal capacity of natural persons rights in property arising out of matrimonial relationship, wills or succession. However, it does apply to rights arising in general civil law proceedings such as where spouses have been in partnership or where a beneficial interest is acquired in property due to contribution of funds.
Recognition and enforcement of an order may be refused
- if it is contrary to the public state of the policy in which recognition is sought;
- where it is given in default of appearance, if the defendant was not duly served with a document which instituted the proceedings or equivalent document in sufficient time to enable him arrange his defence;
- the judgment is irreconcilable with a judgment given in the dispute between the same parties in the State in which recognition is sought;
- if the courts of the State of origin, in order to arrive at the judgment have decided preliminary issues regarding status or legal capacity of natural persons, rights and property arising out of a matrimonial relationship, wills or succession in a way that conflicts with the rules of private international law of the State in which recognition is sought, unless the same law result would have been reached by the application of the rules of private international law of that State;
- if the judgment is irreconcilable with an earlier judgment given in a non-contracting State involving the same course of action between the parties provided that this latter judgment fulfils conditions necessary for recognition in the State concerned.
Where proceedings involving the same parties in the same matter are initiated in different Convention States, any court other the court first seized on its own motion stay it proceedings until such time as the jurisdiction of the first court seized is established. If the first court seized, does established jurisdiction, other courts must decline jurisdiction in the matter.
The procedures for recognition under the Act is similar to those under the Maintenance Orders Act above as between Ireland and the United Kingdom jurisdiction.