With divorce rates at an all-time high and a British expat population rising sharply, there are more couples with cross-boarder elements to their divorce than ever before.
Niamh Wilkie writes for FT Adviser, published 14 June 2023.
Click here to view the article on the FT Adviser website.
Often couples who divorce outside of the UK will also be subject to a court order from the relevant foreign jurisdiction that deals with the division of their assets and income.
But what happens if the order is not complied with and the ‘paying party’ refuses to pay maintenance ordered by the foreign court?
It may be possible for the ‘receiving party’ to apply to the English courts to force the other party to pay sums owed if the paying party is living or working in England or has assets in England or Wales.
The implications of divorcing in a foreign jurisdiction should be considered carefully, especially where there is a lot at stake financially.
International enforcement of maintenance orders is a complex area of the law as there are numerous regulations, statutory instruments, treaties, and conventions to be considered. It can be a very daunting experience for those who find themselves having to make such orders.
Equally, individuals who could envisage potentially being the paying party should be aware of the significant and costly impact of a successful application on their financial portfolio.
Enforcement of foreign maintenance order: where do I begin?
Reciprocal enforcement of maintenance orders (Remo)
Establish whether there is a reciprocal arrangement between the UK and the country in which the debtor (and their assets) is located.
A child maintenance order made in one country can often be enforced against the paying party in another country under Remo provisions.
Often, international enforcement of maintenance orders can be carried out through governmental agencies.
A significant number of countries across the world have endorsed Remo into their law, which means that a county who has endorsed Remo can enforce another country’s maintenance order.
England is party to Remo arrangements with more than 100 counties and numerous other treaties, which enables the Courts of this jurisdiction to enforce child maintenance orders made in other countries.
One of the key benefits of making a request through the Remo Unit (which is the central authority for England and Wales) is that the unit may be able to obtain information about the debtor such as locating their whereabouts and investigating their income.
Changes to enforcement of maintenance orders from EU countries since Brexit
Before Brexit, this was typically a fairly straightforward process pursuant to the Council Regulation (EC) No. 4/2009, also known as the ‘EU maintenance regulation’.
This allowed the receiving party to seek the usual remedies for enforcement, as if the order was made in England and Wales. The EU maintenance regulation will continue to apply to proceedings and applications made before Brexit effect on December 31 2020.
However, since Brexit on December 31 2020, the EU maintenance regulation will no longer apply to the UK and therefore any new cases and applications made after that date.
Instead, jurisdiction to deal with maintenance will be decided by reference to national law unless an agreement can be reached with the EU (with the consent of the other member states) on similar terms as the current EU maintenance regulation.
The UK parliament legislated in December 2020 (before Brexit took effect) to give domestic effect to the 2007 Hague convention on the international recovery of child support and other forms of family maintenance.
This provides rules for the international recognition and recovery of child support and family maintenance. This convention can now be utilised so that an order made by an EU member state is recognised and enforced in the English courts.
Enforcement of maintenance orders from outside of the EU
Some countries, including popular British expat hubs such as Singapore, United Arab Emirates and the US have no reciprocal arrangements with the UK for the enforcement of maintenance orders.
Conversely, parties who divorce and obtain a maintenance order from this jurisdiction can face difficulties in enforcing English orders in these expat hubs.
As such, parties who own a lot of assets in foreign countries or if the payer works abroad, or plans to, should give careful consideration as to where to issue court proceedings in the first instance.
Niamh Wilkie is exclusively a family law barrister at 5SAH. She holds a specialist qualification in international arbitration. Niamh is also qualified to accept direct access instructions.