EU cross-border maintenance
The European Maintenance Regulation comes into force across all 27 member states on 18th June 2011. The intention is for maintenance creditors to be able to obtain a decision in one member State which is automatically enforceable in another without any further formalities such as registration.
So what does it apply to – well, it applies to “maintenance obligations arising from a family relationship, parentage, marriage or affinity”. Most of that looks straightforward, and the regulation clearly applies to maintenance between married partners, civil partners and parents and their children. But what does “Affinity” mean? Some member States may interpret this as applying more widely to other relationships. That would result in the courts being required to recognise and enforce those relationships regardless of whether that relationship exists under English law.
The rules will apply to the maintenance obligations and national law will continue to determine how family relationships are established. If for example there is a family relationship legally recognised in the UK but not in another member State, which we can call A, A’s law will not be changed to recognise that relationship but a UK citizen with a maintenance decision arising out of that relationship should be able to enforce that decision in A.
Does the decision have to be made by a court? Arguably no, it could include decisions made by CEMEC (Child maintenance and Enforcement Commission) - still referred to by many as the CSA. The Commission could be the maintenance creditor for enforcement.
And what is maintenance? An order for payments for the benefit of a person or to a parent for the benefit of a child seems clear but what about a lump sum or property transfer? In other Member States there are likely to be arguments on how some English orders are interpreted. Is a property transfer which was ordered to provide a home for a former spouse or partner and his or her children considered to be maintenance? If so, how much of the value of the property is maintenance and how much is due to the division of the assets of the partnership? These areas will doubtless come to be considered by the European Court of Justice in due course. You can read the regulations in the official journal of the European Union.