28
Jun
2018
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Enforcing English Maintenance Orders Abroad

If you are British but live abroad as an expat, you may need to enforce your English maintenance order abroad. If you have divorced in England and Wales, it is likely that the financial aspects of the divorce will also have been dealt with here. Whether the finances are dealt with by agreement or by court proceedings, the result will be a sealed court order which deals with the division of income and assets. This order may include a term that one spouse is to pay the other a sum of maintenance to meet their financial needs or those of any children of the family.

If you are the ‘receiving party’, and your former spouse fails to pay you the correct sum of maintenance, there are ways in which you can enforce the order i.e. force them to pay you. If your former spouse has income or assets outside of England & Wales, it may be advisable to apply to enforce an English financial order in a foreign country i.e. ask the foreign court to recognise the English order and use its powers to ensure that you receive the maintenance sums owed to you.

The ability and procedure for enforcing an English maintenance order will depend on the country in which you are applying to enforce it.

Enforcing an English maintenance order in foreign countries which are members of the EU

The introduction of the Council Regulation (EC) No. 4/2009, more commonly known as the “Maintenance Regulation”, has streamlined the procedure to ensure the recognition of financial orders between most of the EU Member States, although parties wishing to enforce orders of the UK or Denmark in another Member State will usually still have to obtain a ‘declaration of enforceability’ in the foreign court before the UK order will be recognised. Following the declaration, the usual remedies will be available as if the order had been made in that Member State, allowing a ‘receiving party’ to seek orders relating to assets or income that is held or earned in the foreign country by the paying party.

What about the impact of Brexit on enforcement of EU foreign maintenance order?

The terms of Britain’s exit from the EU are uncertain and it is not known if or how EU Regulations will continue post-Brexit. Following Britain’s exit from the EU, the Maintenance Regulation will cease to have effect however it may be possible for the UK to agree for it to continue to apply by modifying the UK’s legislation or introducing a new agreement. This would only be possible if every other Member State gives consent and this issue may not even form a part of the Brexit negotiations. In the absence of the Maintenance Regulation, it is possible that existing legislation can be utilised so that English maintenance orders are recognised and enforced in EU courts e.g. the Hague Convention.

How do I enforce an English maintenance order in a country outside of the EU?

The process and law in non-EU cases is not as straight-forward as there are countless regulations, conventions and statutes between England/the UK and other countries worldwide regarding the enforcement of maintenance orders.

In the case of enforcement in a non-EU country, it is particularly important to take advice from a local lawyer and also to seek advice from the ‘REMO’ (Reciprocal Enforcement of Maintenance Orders) Unit. The benefit of the latter option is that the REMO Unit may be able to retrieve information which is difficult to find, such as locating debtors or investigating their income. Even if an order is capable of enforcement, there are other issues such as interest on late payments and costs orders, which are likely to differ from country to country and these are important factors to consider when weighing up the potential risk/reward of commencing enforcement proceedings.

Some countries, including many Middle Eastern countries/Sharia law jurisdictions, have little or no reciprocal agreement with the English courts and there can be particular difficulties with enforcement of English orders in these countries. The potential for complications to arise in enforcement proceedings highlights the importance of giving careful consideration at the outset to the jurisdiction in which divorce and financial proceedings are issued, so that the necessary safeguards can be put in place to maximise the chance of enforcing a maintenance order regardless of the payer’s country of residence.

The enforcement of an English order in a foreign jurisdiction is a complex area that will usually require the advice of a local lawyer. Expatriate Law can discuss your options with you, whatever stage of financial or enforcement proceedings you are at, and refer you to specialist lawyers in other jurisdictions.

This article was prepared by Stephanie Allerton, solicitor at Expatriate Law. Stephanie can be contacted by email at Stephanie@expatriatelaw.com.