Cross-EU border family law from 1 January 2021: guidance for legal professionals

2. Maintenance

The treatment of cases commenced before the end of the transition period (11pm on 31 December 2020) is governed by Title VI of the Withdrawal Agreement. The Maintenance Regulation will continue to apply to such cases, and to the recognition and enforcement of judgments delivered in them. This includes judgments delivered, whether before or after the end of the transition period, by a court in an EU member state in proceedings commenced before the end of the transition period, but which have not been enforced in an EU member state or the United Kingdom respectively before the end of the transition period. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

2.1 Current law

Jurisdiction

For further information, parties should refer to the full Chapter II of the EU Maintenance Regulation 4/2009 to decide if it has jurisdiction to hear a maintenance case.

Recognition and enforcement of decisions

A maintenance decision made in Scotland that is to be recognised and enforced in another EU member state must be recognised and must have a declaration of enforceability (registration for enforcement) before it can be enforced there. It should be accompanied by the documents required under Article 28, subject to the exceptions in Article 29.

A maintenance decision made in another EU member state (except Denmark) that is to be recognised and enforced in Scotland does not need to be registered for enforcement. It should be accompanied by the documents required under Article 20.

For further information, refer to the Sheriff Court Child Care and Maintenance Rules.

2.2 From the end of the transition period

Cases in Scotland

Cases ongoing in Scotland after the end of the transition period

The treatment of cases commenced before the end of the transition period is governed by Title VI of the EU Withdrawal Agreement.

New cases starting in Scotland after the end of the transition period

Jurisdiction

The EU Maintenance Regulation 4/2009 will be revoked at the end of the transition period. For cases starting after this point, the court in Scotland will decide if it has jurisdiction using the relevant non-EU rules (unless parties have before the end of the transition period made a choice of law agreement in accordance with the EU rules). These rules are different depending on the type of maintenance case before the court.

Recognition and enforcement of maintenance decisions

After the end of the transition period, the UK will use the rules of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance with other States Party, which include all EU member states except Denmark. 2007 Hague Convention.

Cases in an EU member state

Cases ongoing in an EU member state at the end of the transition period

The treatment of cases commenced before the end of the transition period in EU member states is governed by Title VI of the Withdrawal Agreement. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

New cases starting in an EU member state after the end of the transition period

Jurisdiction

The guidance from the European Commission states that where proceedings involve a UK domiciled defendant, unless an EU instrument sets out the rules of jurisdiction with regard to third countries, international jurisdiction will be governed by the national rules of the EU member state in which the court is seised. To find out the law the member state's court will apply in a case involving a UK party or parties after the end of the transition period, individuals should seek local legal advice if possible.

Recognition of decisions

The guidance from the European Commission states that in some instances international conventions will apply provided that both the EU member state and the United Kingdom are party to the convention. All EU member states except Denmark are party to the 2007 Hague Maintenance Convention so this will enable the recognition of UK maintenance decisions in EU member states after the end of the transition period.

Choice of court agreements within a Maintenance case after the end of the transition period

In Scotland

The court in Scotland will continue to recognise choice of court agreements in maintenance cases agreed before the end of the transition period in writing between all parties which satisfy the relevant conditions, even if the case is issued after the end of the transition period.

In EU member states

There is no guarantee that the courts of EU member states will recognise a choice of court agreement in favour of a court in Scotland after the end of the transition period.

Further information

Scope of the 2007 Hague Maintenance Convention

The Scottish Government intends to operate the 2007 Hague Convention as soon as possible after the end of the transition period both for new cases and for payments from before exit for the benefit of a person under 21, with EU member states except Denmark. The UK has ratified the 2007 Hague Convention with the same declarations and reservations as before and the same scope as that applied by the EU, including spousal maintenance. The UK will in future consider wider application.

For further information, refer to the 2007 Hague Convention.

Terminology differences between the 2007 Hague Maintenance Convention and the EU Maintenance Regulation

The EU Maintenance Regulation 4/2009 provides for the UK (and Ireland) to read "nationality" as "domicile". The 2007 Hague Convention refers only to nationality.

The 2007 Hague Convention provides for the recognition and enforcement of maintenance decisions where the court which made the decision had jurisdiction for divorce, except if that was based on the nationality of only one spouse. Therefore, where the court's jurisdiction for the divorce relies on sole domicile, not nationality, it should be possible for any maintenance decision to be recognised and enforced under the 2007 Hague Convention.

Central Authority for Scotland

The Central Authority for Scotland can be contacted on:

Email: maintenanceenforcement@gov.scot

Telephone: 0131 244 0460

Address: Room GW-15

St Andrew's House
Regent Road
Edinburgh
EH1 3DG