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Maintenance after Brexit
This guide forms part of our series of guidance on private family law after Brexit.
This guidance will be reviewed if the UK joins the Lugano Convention 2007.
The Maintenance Regulation remains the relevant law for proceedings instituted on or before 31 December 2020.
As with divorce, if maintenance proceedings are instituted in 2020 and commenced elsewhere in the EU in 2021 onwards, the former takes priority.
The Maintenance Regulation does not apply to proceedings started after 31 December 2020.
The Maintenance Regulation no longer applies. Instead, maintenance will depend on the nature of the proceedings. Claims ancillary to divorce will follow divorce jurisdiction.
The EU courts no longer automatically recognise choice of court agreements electing the UK, under article 4, 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 of the Children Act
- part III of the Matrimonial and Family Proceedings Act 1984
- section 27 of the Matrimonial Causes Act 1973
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.
The UK continues 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.