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The answer is "yes" and all practitioners need to be aware of it.
The new EU Maintenance Regulation which has replaced Brussels I came into force on 18 June 2011. As the title suggests the Regulation applies across Europe.
What does the Regulation say and what does it cover?
The Regulation covers maintenance although has a wider definition than pure periodical payments. In Europe maintenance has been interpreted as being akin to "needs".
It would therefore cover:
a) Transfers of property for the accommodation needs of one party and
b) A lump sum constituting capitalised maintenance.
So how will this work in practice?
The first to issue principle in Brussels II still applies. This will have a major impact because the Regulation will not only apply to previous Court proceedings for maintenance but also any agreements dealing with maintenance or child support assessments. Moreover, any related proceedings should be transferred to the jurisdiction dealing with maintenance dispute.
Therefore, even if you have issued divorce proceedings in this jurisdiction, first in time and/or a Form A, if there have been any prior maintenance orders, agreements (to include pre and post nuptial agreements) or child maintenance assessments in another country, the Regulation suggests that it is that country and not England and Wales that should deal with the maintenance aspect.
So where does this leave us?
The fundamental principles that we adopt when advising our clients on settlement are based on "needs". More often than not when considering "needs", both capital and income go hand in hand. If, as the new Regulation suggests, the maintenance aspect of a case will need to be transferred to another Court in another jurisdiction how can the English Court fulfil its role and what clear advice can we give to our clients as to likely outcome?
My view is that the new Regulation will certainly have an impact on every international case. We live in a society where in recent years there has been a massive movement of people around the globe for reasons of work, travel and personal/financial improvement. Many families therefore will have real and ongoing connection with more than one country. This is against the backdrop of many European countries already having applicable laws.
There will be testing times ahead!
Lucy thanks David Hodson also of the International Family Law Group for his assistance with this article- Extracts are taken from his article "Domestic Regulations for the New EU Maintenance Regulation".
Lucy Loizou is a Solicitor and Associate with the The International Family Law Group. She undertakes complex financial and children disputes and has worked on a number of cases involving high net worth issues often involving an international element. She has also acted for a number of high profile individuals and assisted in resolving their disputes swiftly and discretely. She has written family law articles for various legal journals and writes monthly for a leading Greek newspaper column. She also presents a fortnightly radio phone in on London Greek Radio on family law issues.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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