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End of transition period guidance: maintenance
This guide forms part of our series of end of transition period guidance on private family law.
In the EU context, maintenance is a needs-based provision and is not only limited to periodic provision.
Maintenance could therefore include:
- lump sums
- pension shares
The Maintenance Regulation sets out rules of jurisdiction for the power to make needs-based orders and provides for automatic recognition and enforcement across member states of any maintenance order.
This will remain the relevant law for proceedings instituted on or before 31 December 2020.
Any final order made in these proceedings will have automatic recognition and enforcement across the EU under the Maintenance Regulation.
If there are maintenance, needs-based proceedings instituted in 2020 and then in 2021 onwards there are proceedings elsewhere in the EU for so-called related actions (not maintenance but financial claims such as sharing), the discretion to stay the related action remains so that the country with the maintenance claim can then deal with both.
As with divorce, if there are maintenance proceedings instituted in 2020 and maintenance proceedings commenced elsewhere in the EU in 2021 onwards, the former takes priority.
The Maintenance Regulation will not apply to proceedings commenced after 31 December 2020.
The jurisdiction of the courts in England and Wales is decided by the courts in accordance with articles 3 to 7 of the Maintenance Regulation. The main ground of jurisdiction is the habitual residence of the claimant or of the defendant.
Article 3 of the Maintenance Regulation also applies to claims ancillary to divorce or proceedings relating to children and parental responsibility, although not if the only basis is sole domicile.
For nuptial agreements which include a choice of court agreement, this choice is binding for maintenance claims under article 4 of the Regulation. This excludes the child maintenance claims where the habitual residence is the main rule.
After the end of transition
The Maintenance Regulation will no longer be applicable. Instead, maintenance will depend on the nature of the proceedings.
Claims ancillary to divorce will follow divorce jurisdiction.
Choice of court agreements, under article 4, electing the UK will no longer be automatically recognised by the EU courts, nor will these agreements result in an order capable of recognition and enforcement in the EU courts.
The decision on whether these agreements are recognised lies with the relevant national law. The courts in England and Wales will continue to recognise these agreements.
There are separate jurisdictional provisions for Schedule 1 Children Act, Part III MFPA, section 27 MCA and reference should be made to each set of proceedings and the jurisdictional requirements, now set out in national law.
The sole domicile restriction will not succeed from 2021 onwards, unless the UK joins the Lugano Convention. This might be a reason to delay proceedings until next year although care will be needed in any forum case.
Forum for maintenance ancillary to divorce will be applied as forum for divorce, as above. This may change if the UK joins the Lugano Convention 2007. If that takes place, we will update this guidance.
In respect of other types of maintenance claims, forum will depend upon the nature and statutory authority for the claim and the international and domestic rules governing maintenance claims with respect to the state concerned.
Advice from a lawyer specialising in the law of that state should be taken.
Recognition and enforcement
The 2007 Hague Convention provides for recognition and enforcement of maintenance orders between the UK and the EU courts. All EU member states are parties to this convention, except Denmark.
Once the transition period ends, the UK will continue to be a signatory to the convention as an independent contracting state (see the International Recovery of Maintenance (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007) (EU Exit) Regulations 2018).
The rules under this convention are similar although not the same as the Maintenance Regulation.
Recognition and enforcement in UK/Denmark cases will be governed by the 1973 Hague Maintenance Enforcement Convention.
Should the UK join the Lugano Convention 2007, we will update this guidance on the available processes.