If you have been divorced outside of England and Wales in an expat hub such as Singapore, China, Dubai or the US, you may also have obtained a court order from that country which dealt with the financial aspects of your marriage, such as the division of your assets and income. That order may state 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. In some countries, this referred to as ‘alimony’. If the ‘paying party’ fails to pay the maintenance they have been ordered to pay by a foreign court, and they are living or working in England or Wales or they have assets in England or Wales, then it may be appropriate for the ‘receiving party’ to make an application to the English courts to enforce the foreign order i.e. force the other party to pay the sums owed. The process that will be followed will depend on the country where the foreign order was obtained. Enforcing foreign maintenance orders in England can seem daunting; the commentary below summarizes the process.
Countries which are members of the EU (except Denmark)
On 18th June 2011, the Council Regulation (EC) No. 4/2009 was introduced into EU law. It is more commonly referred to as the “Maintenance Regulation”. One of its main objectives is to enable court orders which are enforceable in their ‘home country’ to be automatically recognised and enforceable in another Member State without the need for any further processes. This replaces the previous process where the foreign order had to be formally registered in England before it was recognised. An application can now be made directly to the English court and the foreign maintenance order will be recognised and enforced as though it were an English court order, although there are limited grounds upon which the English court could challenge it e.g. matters of public policy. Once the order has been enforced, the usual remedies are available as with English orders such as an attachment of earnings order where funds are taken directly from the payer’s wages and paid to the recipient.
In terms of procedure, there is a choice between applying straight to the English court or making a request to the ‘REMO’ (Reciprocal Enforcement of Maintenance Orders) Unit, which is the Central Authority for England & Wales. 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.
You will need to provide certain documents with your court application including the foreign court order or a certified copy, together with an English translation of the relevant extract, and where appropriate, a document showing clearly the amount of arrears due.
What about an EU order which pre-dates the Maintenance Regulation?
In cases of EU foreign maintenance order relating to proceedings commenced prior to 18 June 2011, or in all cases of orders from Denmark, the old procedure will apply i.e. the order must be registered in England & Wales to be enforceable. In practice, this means lodging a certified copy of the order, together with an English translation, in the English court. The old procedure will still be relevant for years to come, particularly as the relevant date is the date that proceedings were commenced, rather than the date of the order itself (which could be several years later).
What about the impact of Brexit on the enforcement of EU foreign maintenance orders?
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 Brexit negotiations. In the absence of the Maintenance Regulation, it is possible that other existing legislation can be utilised to allow English courts to recognise and enforce EU maintenance orders e.g. the Hague Convention.
Enforcing foreign orders in England; what if I have an order from outside the EU?
The process here is not as straight-forward as there are countless agreements, conventions and treaties between England/the UK and other countries worldwide regarding the enforcement of court orders. For example, the recognition of a US financial order in England requires a party to take steps via the Lord Chancellor to satisfy the court that the payer has assets in England. Registration of financial orders made in Commonwealth countries can be straightforward provided that the payer resides in England. It is a complicated area of law as every foreign country has a unique relationship to the UK and there may even be multiple rules in one country. Some countries (including many Middle Eastern countries) have no reciprocal agreement at all with the UK. In these cases it may be possible to bring a debt claim under civil law and specialist advice should be sought. It is a complicated area which highlights the importance of giving careful consideration as to where to issue court proceedings at the outset, particularly if parties own a lot of assets in foreign countries or the payer works abroad, or plans to.
Expatriate Law can discuss various enforcement options with you and ensure the law is applied to your personal situation, and will refer you to specialist lawyers in other jurisdictions, where appropriate.
This article was prepared by Stephanie Allerton, solicitor at Expatriate Law. Stephanie can be contacted by email at [email protected]