Common Law / Non-Convention
Several key common law rules on the recognition of foreign maintenance awards have been supervened by statute and international convention.
At common law, a valid final foreign judgment for a debt due or a fixed sum is enforceable. Maintenance orders have not been regarded as final and conclusive orders in this context, as they are generally subject to variation. Depending on the legal system concerned, they may be variable only in respect of future payments and not for payments which have already become due.
A judgment is not regarded as final it can be varied or altered by application to the court that made it in the country concerned. The judgment is final, notwithstanding that it could have been appealed and was not appealed. A foreign maintenance order is not final if there is the jurisdiction for the court concerned to vary, rescind or alter it retrospectively.
The effect of this common law position is that, in many cases, foreign maintenance orders made outside the State may not be enforced within the State. Other orders which are final and cannot be varied were enforceable are enforceable at common law. The finality of an order is determined by the nature of the proceedings and the effect of the order.
Final Though Variable
There is Irish authority for the position that an order may be final, notwithstanding that it can be varied retrospectively. In the case concerned, the court held that the finality and conclusiveness of the order were to be determined by the nature of the proceedings before the foreign court concerned.
If they allow adjudication on all issues between the parties and if an order is made, so that res judicata (doctrine of matter determined) applies, then the order may be final and conclusive even though it may be later varied or set aside on appeal.
Where the court is to determine the amount of maintenance and has the power to adjudicate on all relevant issues, then the order becomes final and conclusive when the court’s order will estop (prevent) the parties from litigating the issues again. Under this view, this is deemed so even if the law allows variation of an earlier order in changed circumstances. Under this view, this is a new and distinct issue, and new issues are considered. The issues considered originally are not reconsidered.
Lump Sum & Policy Issues
The difficulties regarding enforcement of maintenance orders at common law do not usually arise in the case of a lump sum order, made for the benefit of the spouse or children. These are not generally capable of being retrospectively varied.
At common law, recognition could be withheld on the basis that a, order was made in proceedings which were contrary to domestic, public policy. In a number of cases, it was claimed or held that foreign divorce orders were against public policy (at a time when there was a constitutional prohibition on divorce).
The Supreme Court, however, ultimately held that the Constitution did not create any public policy objections to the enforcement of maintenance, periodical payments or lump sums arising from foreign divorces.
Public policy issues may arise where there are conflicting orders of domestic courts and foreign courts. A foreign judgment will not be recognised if it is irreconcilable with a judgment in the same matter in the State. Accordingly, there may be a conflict between an existing domestic order and a foreign order.
Conventions Given Effect
The Maintenance Act 1994 modifies the common law position. It provides that the recognition of a maintenance order made by a foreign court may not be refused only by reason of the fact that the court has the power to vary or revoke it.
The Maintenance Act, 1994, changes the conflict of law rules by which recognition may be refused on the basis that the debtor was not resident or present at the date of hearing of the proceedings. Orders may be recognised provided that the claimant was, at the date of commencement of the proceedings, a resident in the foreign jurisdiction.
The defendant must be served in sufficient time to allow him to defend the proceedings.
The Maintenance Orders Act 1974 provides for the mutual recognition and enforcement of maintenance orders between the Republic of Ireland, Northern Ireland, Scotland and England and Wales. A maintenance order is a periodical payment of money for the maintenance of any person, being a person whom the person liable to make the payments under the order is in accordance with the law of the relevant jurisdiction liable to maintain. It includes
- an order incidental to a decision on the status of persons; this refers primarily to an order of divorce or nullity;
- an order obtained by or in favour of a public authority in connection with the provision of maintenance or other benefits in respect of a person whom the maintenance debtor is, in accordance with the law of the jurisdiction in which the order is made, liable to maintain;
- a provision in an agreement in writing between spouses for the making by one spouse of periodical payments towards the maintenance of the other or any children or child to whom either is in loco parentis, being an agreement embodied in or approved by a court order or made a rule of court.
The Master of the High Court may make an enforcement order against a maintenance debtor resident in the State. The request is initiated by the appropriate authority in the corresponding jurisdiction, which is the appropriate court office or officer. There is a right of appeal to the High Court against an enforcement order or its refusal by the Master.
When an enforcement order has been made by the Master, the order is deemed enforceable maintenance order under the legislation. The District Court in which the maintenance debtor resides may deal with enforcement against the maintenance on foot of the order.
Enforcement of Recognised Order
The same mechanisms as apply to domestic maintenance orders are applicable. Accordingly, an attachment of earnings order may be made. Enforcement may be taken under the Enforcement of Court Orders Act, where there are six months of accrued arrears.
An order may be varied in the originating jurisdiction and is enforceable in the State as and from the date of variation. Once revoked in the originating jurisdiction, it ceases to have effect from the date of revocation.
There may be a refusal to recognise and enforce the order where:
- recognition or enforcement will be contrary to public policy;
- where it is made in default of appearance, the person in default not being served with notice of intention of the institution of proceedings in sufficient time to enable him to arrange his defence;
- it is irreconcilable with a judgment given in a dispute between the same parties in the State.
Maintenance proceedings may be taken in the State against and enforced against persons resident in one of the other of Northern Ireland, England and Wales and/or Scotland. They are initiated in the same manner as proceedings under the Family Law (Maintenance of Spouses and Children) Act.
Notice of commencement is given to the Registrar of the court in which they are commenced by the Registrar to the Master of the High Court for transmission to the appropriate authority in the reciprocating provision. There are provisions for the transmission and taking of evidence in the other jurisdiction to enable the proceedings to be determined.
The whereabouts of the maintenance debtor must be established. Evidence of identification must be furnished to enable the relevant court papers to be served and undertake effective proceedings.
The proceedings as between the Republic of Ireland and the United Kingdom jurisdictions are now also covered by the Brussels Convention and the older New York Convention.
Brussels Convention Recognition
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 a 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 person rights in property arising out of a matrimonial relationship, wills or succession. However, it does apply to rights arising in general civil law proceedings, such as where spouses have been in a partnership or where a beneficial interest is acquired in property due to the 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 to 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 the 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 establish jurisdiction, other courts must decline jurisdiction in the matter.
The Convention may be used by a spouse domiciled or resident in the State to procure a maintenance order against a spouse domiciled or resident in another Convention State. This is also applicable to EFTA States under the Lugano Convention.
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.
The Maintenance Act, 1994, provides that foreign periodical maintenance orders and foreign lump sums are enforceable through the District Court through the office of the Master of the High Court.
Where the District Court does not have jurisdiction to enforce or recognise foreign maintenance orders, they may be enforced by the High Court. This many arise, is for example, where there are assets in the State, but the defendant does not reside (in any District).
NY & Rome Conventions
The Maintenance Act 1994, enabled the State to ratify the Rome Convention between EU States and the simplification of recovery of maintenance procedures under the 1956 UN New York Convention on the Recovery of Maintenance Abroad.
The Rome Convention applies between certain EU States. The United Nations Convention applies to numerous states internationally.
A central authority is established under both Conventions. A person who has obtained a maintenance order may apply for enforcement to the central authority in his State. The central authority may initiate maintenance proceedings on behalf of a maintenance claimant.
The central authority of the maintenance claimant’s State transmits the documentation to the central authority of the maintenance debtor’s state of residence. The central authority is responsible for taking action to recover maintenance and cause it to be transmitted to the maintenance debtor. The documentation is prescribed.
Under the New York Convention, Irish maintenance proceedings are required after receipt of a request from another state’s central authority. The claimant and witnesses may need to give evidence for this purpose.
The Minister may appoint the central authority to recover maintenance on behalf of claimants from outside the State and transmit it to the central authorities of their jurisdiction. The central authority may use the existing maintenance enforcement procedures within the State to enforce maintenance orders, periodical payments or lump sum orders made for the benefit of a claimant by a foreign court. A request must be received from a reciprocating jurisdiction.
Incoming from EU / EFTA
In case of a maintenance order originating in the EU or EFTA State, the central authority must furnish the documentation to the Master of the High Court for the purpose of enforcement. The application is considered in private. The enforcement order must be made unless recognition is prohibited by the Brussels or Lugano Convention.
Notice of the Master’s decision must be given to the central authority where enforcement is undertaken against the maintenance debtor. After notification of the enforcement order, the maintenance debtor may, within one month, appeal on one of the (limited) grounds specified in the Brussels and Lugano Convention.
Where an appeal is not made, and the maintenance debtor fails to comply with the order, the enforcement procedures in respect of domestic maintenance orders may be used by the central authority in the District Court. Enforcement action may be taken where the maintenance debtor is resident in the State and also where he is employed by a person resident or having a place of business in the State or a Corporation or association having its seat there.
Incoming NY Convention
If a request is made from a non-EU or EFTA State, the New York Convention may be used for enforcement. The central authority must be of the opinion that it is enforceable in the State. The central authority applies to District Court for enforcement. An application is not necessary to the High Court or Master of the High Court.
If the court refuses to recognise to enforce a foreign maintenance order, or if the request from a foreign State is for an original order to be made, and not for enforcement of an order of its own courts, the central authority may apply to the District Court for a maintenance order under the maintenance legislation.
If the maintenance sum exceeds the jurisdiction of the District Court, it may apply to the Circuit Court for maintenance under the maintenance legislation or for maintenance pending suit, periodical payments order or a lump sum order, secured or unsecured.
The application may be made on behalf of a claimant in any EU or EFTA State which is a party to the New York Convention. Where a request is received by a central authority to recover maintenance from a resident in the State, this is deemed a request to commence proceedings under the Act, appropriate to the circumstances.
The court on determining the application, has powers to take evidence on affidavit or deposition through a live television link. The court may make interim orders and final orders. Where the respondent or claimant bona fide wishes to cross-examine a witness, and the witness is available for cross-examination by either live video link, or otherwise, the court must decline evidence by affidavit.
Enforcement procedures may be taken in respect of maintenance payable under a document drawn up and registered as an authentic instrument and enforceable in a contracting State of the Brussels or Lugano Convention and a settlement approved by the court in the course of proceedings which is enforceable in any contracting State in which it was concluded.
In this case, the central authority must apply to the High Court for recognition rather than the Master of the High Court. The central authority may apply to the Circuit Court to have the agreement made a rule of court under the maintenance of spouses and children legislation.
Where a central authority receives a request for recovery of maintenance, it may apply to the High Court for provision, including protective measures of any kind that the court has the power to grant in proceedings within the jurisdiction. This may include an order freezing assets within the jurisdiction or preventing them from being sold or removed.
The central authority may require any public office or body to provide it with information in its possession or procurement in relation to the location, place of work or extent of assets of a maintenance debtor or respondent. The request must be complied with as soon as practicable.
The central authority may apply to the District Court for an order requiring information to be furnished by any other person or body. The court may order that the information is to be provided if it is of the opinion that the person or entity is likely to have it.
The provisions were enacted for the purpose of the Rome Convention. However, there is no equivalent obligation under the New York Convention. The powers may, however, be used for the purpose of a New York Convention request.
Where a person seeks a maintenance order against a person resident in a state which is a party to the New York Convention, he is to apply to the central authority domestically to have the application transmitted to the central authority of the foreign state. The District Court may take evidence on deposition in relation to the relevant facts.
The courts, if satisfied that the deposition sets forth facts on which it may be determined that the respondent owes a duty to maintain the claimant, may certify it as such. The central authority transmits documents to the central authority of the foreign state.