Clarification of procedural requirements following successful strike out of variation application

Sir Peter Singer has clarified the procedural requirements for initiating an incoming modification application under the European Council Regulation (EC) NO 4/2009, the Maintenance Regulation.

Penningtons Manches family law partner James Stewart and associate Gill O’Connor, instructed on behalf of the former wife, succeeded in the High Court in striking out a former husband’s application to modify a German financial order. 

In the first reported judgment concerning an “incoming” variation application (i.e. applications from another member state to England and Wales), the judge, Sir Peter Singer, found that the only route for such an application is via Chapter VII of the Maintenance Regulation (Council Regulation EC No 4/2009) and that no direct approach to a court without involvement of the relevant Central Authority is permissible. 

The case concerned an application by a German national to vary a German order. The parties had divorced in Germany in 2000, following which the wife moved to England to live. On 2 April 2014, the wife received, out of the blue, a letter from her former husband’s solicitors, serving court papers which included a direction requiring her to file a compendious financial statement by 2 June 2014. 

On 29 April, Penningtons Manches sent a considered letter inviting the former husband to withdraw his application, failing which he would himself apply to dispose of the application by striking it out or to dismiss it for want of jurisdiction or as an abuse of the court’s process. When the former husband did not withdraw his application, James Stewart proceeded with a strike out application on behalf of the former wife. 

In essence, the former husband had filed an application for a financial order in Form A in the Slough County Court in the belief that this was sufficient to confer jurisdiction onto the English court under Chapter VII of the Maintenance Regulation. More concerning was the fact that the Slough County Court  - apparently oblivious to the workings of the Maintenance Regulation - had issued the application and had given standard directions which included the filing of a detailed financial statement, referred to above. 

The strike out application sought by the wife was brought on a number of grounds including: 

  • Form A is wholly inapplicable to a Maintenance Regulation case as ‘financial order’ is defined in rule 2.3 FPR 2010 and an application may only be made in or after an application for a matrimonial or civil partnership order (i.e. divorce, nullity, dissolution etc.) – FPR 9.4 i.e. the husband’s free-standing application had no substantive underlying jurisdiction. 
  • Chapter VII of the Maintenance Regulation is the only conceivable route by which the English court could have the jurisdiction to vary a foreign maintenance order (N.B. Chapter VII is entitled ‘Cooperation between Central Authorities’ and sets out a very specific process, including a specific form, by which an application may be made). 

Sir Peter Singer disagreed with Mostyn J’s interpretation in EDG v RR [2014] EWHC 816 (Fam)where he identified that there were two available routes for enforcement – directly under Chapter IV of the Maintenance Regulation and through the Central Authority under Chapter VII. 

  • The former wife also argued, as an alternative, that the application should be struck out for abuse of process (as it was an undisguised exercise in ‘forum shopping’) and/or by virtue of FPR 4.4. This particular argument was not considered in any detail in the judgment as Penningtons Manches succeeded on points 1 and 2 above. The judge also felt it inappropriate to deal with these fall-back submissions given the pending Supreme Court decision in an appeal from Vince v Wyatt [2014] 1 FLR 246.

It is hoped that this judgment will provide some clarity in the operation of the Maintenance Regulation and, in particular, how to issue an application appropriately. The only route laid down by the Maintenance Regulation is via the Central Authorities and there is no permissible short-circuit option.  In this case, the former husband’s decision to issue a Form A  - apparently with little more than a “hope and prayer” -  resulted in an order for costs. 

THE EUROPEANISATION OF DOMESTIC FAMILY LAW

While substantive family law ostensibly remains under the sole competence of EU countries, the EU is empowered to take measuresconcerning family law with cross-border implications on the basis of a special legislative procedure which make European rules directly applicable in member states. 

This jurisprudence has given rise to a variety of EU Regulations on family matters which have forever altered UK domestic family law. These regulations include: 

  • Brussels II R (Council Regulation (EC) No 2201/2003) concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters;
  • the Rome III Regulation (Council Regulation (EU) No 1259/2010), implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (which, if the United Kingdom decides to opt into, would lead to judges throughout the UK applying foreign law);
  • perhaps the most controversial, the Maintenance Regulation, which is intended to ensure a consistent approach to the jurisdiction for and enforcement of maintenance orders which was the subject of AB v JJB

AB v JJB is a case which starkly illustrates the complexities of European family law in general and the Maintenance Regulation in particular. It is indicative of how international family law has become a minefield for practitioners. EU Regulations on family law matters are becoming ever more complex and difficult.  

These changes have led to a feeling among many family law professionals that the “Europeanisation” of domestic family law may have already gone too far and is, generally, not a positive development  - other than creating interesting legal conundrums. If the goal of the EU regulations on family matters is to encourage integration by simplifying procedures, ensuring predictability of outcome and reducing costs, it has arguably failed. 

Regulations which were designed to encourage predictable and cost-effective outcomes have achieved the opposite because of drafting which is, in part, poor, overly complex and arguably ambiguous. The problem is exacerbated by the fact that the Regulations have to cater for legal systems and procedures which may be completely incompatible with our own. While European cooperation on enforcement and protective measures is a good thing, one has to ask whether the Europeanisation of our domestic law is a positive development.