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Partner, Clarke Willmott LLP
On 18 June 2011 a new EU Maintenance Regulation (Council Regulation (EC) No 4/2009) (‘the Regulation') will come into force. Until now, the majority of practitioners will have avoided any detailed knowledge of Brussels I (Council Regulation (EC) No 44/2001) and/or the European Enforcement Order (Council Regulation (EC) No 805/2004). Until Radmacher (Formerly Granatino) v Granatino  UKSC 42,  2 FLR 1900 we may even have questioned the relevance of a foreign prenuptial agreement when looking at the powers of the English Court to make financial orders on divorce. However, while Radmacher has given considerably more weight to a foreign prenuptial agreement, there was no discussion by the Supreme Court of the upcoming Regulation and on the limits this places on the English court's ability to make a maintenance order in the future, for example:
(1) The parties can agree in advance as to which court has jurisdiction to deal with maintenance (this is wider than just a periodical payments order, see below). The courts which can be given jurisdiction by agreement is much wider than it was under Brussels I.
(2) If the parties have agreed the level of maintenance in advance (whether that be substantive or nominal) or even possibly that no maintenance claim be permitted and this agreement is an authentic instrument in the country it is made, then this would be directly enforceable in England, and the English court would not be able to make a maintenance order even if it had jurisdiction to deal with the divorce.
To read the rest of this article, see April  Family Law journal.
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