Ramadani v Ramadani
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Sales,Lady Justice Black |
| Judgment Date | 12 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1138 |
| Docket Number | Case No: B6/2014/4251 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2015 |
[2015] EWCA Civ 1138
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE, FAMILY DIVISION
Mr Justice Moylan
FD13F00568
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice McFarlane
and
Lord Justice Sales
Case No: B6/2014/4251
Mr Tim Scott QC (instructed by Withers LLP) for the Appellant
Mr Charles Hale QC and Mr Henry Clayton (instructed by Healys LLP) for the Respondent
Hearing date: 29 October 2015
The present appeal requires this court to consider, apparently for the first time, the jurisdiction of a court in England and Wales to entertain an application for spousal maintenance in the context of Council Regulation (EC) 4/2009 ("The Maintenance Regulation") following previous proceedings in another EU member state.
The appeal comes, following grant of permission to appeal by Vos LJ on 11 February 2015, from a decision of Mr Justice Moylan made on 4 th November 2014 following a two day hearing. Moylan J's judgment is reported as AA v BB [2014] EWHC 4210 (Fam).
The proceedings relate to a couple who were both born in Kosovo but who lived for much of their married life in Slovenia. They married in 1981 and had four children, all of whom are now over the age of 20 years. In May 2008 the wife and four children moved to live in England and Wales, a state of affairs which has continued, at least so far as the wife is concerned, since that time. One month later the wife commenced divorce proceedings in Slovenia and an order dissolving their marriage was eventually made on 8 th November 2011 by the Slovenian court.
By an order of Eleanor King J (as she then was) made on 3 rd October 2013 the wife was given leave to apply for financial remedy orders under Matrimonial and Family Proceedings Act l984, ("the MFPA 1984"), Part III ("Part III proceedings"). In accordance with the rules, that application was made without notice to the husband.
At the hearing before Moylan J in November 2014, the court heard applications by the husband to set aside and/or strike out the leave to commence Part III proceedings granted by Eleanor King J. Alternatively the husband sought an adjournment and a stay of Eleanor King J's orders. At the conclusion of an immaculately crafted and fully reasoned judgment, Moylan J refused the husband's various applications in their entirety.
The husband's case before Moylan J was to achieve a root and branch "knockout blow" to prevent the wife prosecuting any claims for financial relief in this jurisdiction. In the present appeal the husband is more modest in his aims and does not seek to challenge Moylan J's overall conclusion; his case is solely focussed upon that part of the wife's claim in England and Wales which relates to spousal maintenance.
The Maintenance Regulation
Before turning to the detail of this case, it is necessary to set out the relevant parts of the Maintenance Regulation and of the MFPA 1984, Part III.
The Maintenance Regulation came into force in the United Kingdom on 18 th June 2011. During the hearing before Moylan J, the parties' submissions were focussed on that Regulation. In his judgment (para 8), he commented that, because the proceedings in Slovenia were commenced prior to 18 th June 2011, the relevant regulation was in fact, "in part", 'Brussels I ( Council Regulation (EC) 44/2201). As he was not aware of any material differences between the relevant provisions of the two instruments, Moylan J found it convenient to follow the format of the parties' submissions and refer to the provisions of the Maintenance Regulation. I propose to adopt the same approach.
The Maintenance Regulation uses the term "maintenance creditor" to mean "any individual to whom maintenance is owed or is alleged to be owed" and "maintenance debtor" to mean "any individual who owes or is alleged to owe maintenance" [Maintenance Regulation, Articles 2.1.9 and 10].
The following recitals to the regulation are potentially relevant:
"(9) A maintenance creditor should be able to obtain easily, in a Member State, a decision which will be automatically enforceable in another Member State without further formalities
(11) The scope of this Regulation should cover all maintenance obligations arising from a family relationship, parentage, marriage or affinity, in order to guarantee equal treatment of all maintenance creditors. For the purposes of this Regulation, the term 'maintenance obligation' should be interpreted autonomously
(13) For the reasons set out above, this Regulation should also ensure the recognition and enforcement of court settlements and authentic instruments without affecting the right of either party to such a settlement or instrument to challenge the settlement or instrument before the courts of the Member State of origin.
(15) In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from Regulation (EC) No 44/2001 should be adapted. The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction.
(25) Recognition in a Member State of a decision relating to maintenance obligations has as its only object to allow the recovery of the maintenance claim determined in the decision. It does not imply the recognition by that Member State of the family relationship, parentage, marriage or affinity underlying the maintenance obligations which gave rise to the decision."
Pausing there, each of the recitals that I have now set out are relied upon by the wife in the present appeal to establish the overall purpose of the Maintenance Regulation which her leading counsel, Mr Charles Hale QC, submits is entirely focussed upon supporting and assisting a maintenance creditor (in this case the wife) in achieving cross-border enforcement of maintenance obligations against a maintenance debtor (the husband). In addition, the husband's leading counsel, Mr Timothy Scott QC, relies upon two of those recitals (recitals (11) and (13)) to establish that the Regulation covers "all maintenance obligations" and includes provision for the "recognition and enforcement of court settlements".
The relevant Articles within the regulation itself are as follows:
"Article 2: Definitions
1. For the purposes of this Regulation:
i) the term "decision" shall mean a decision in matters relating to maintenance obligations given by a court of a Member State, whatever the decision may be called, including a decree, order, judgment, or writ of execution, as well as a decision by an officer of the court determining the costs or expenses…..;
ii) the term "court settlement" shall mean a settlement in matters relating to maintenance obligations which has been approved by a court or concluded before a court in the course of proceedings;"
Chapter II: Jurisdiction
Article 3: General Provisions
In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:
(a) the court for the place where the defendant is habitually resident, or
(b) the court for the place where the creditor is habitually resident, or
(c) …..
(d) ……"
Chapter IV of the Maintenance Regulation relates to "Recognition, enforceability and enforcement of decisions". Chapter IV, section 1 relates to "decisions given in a member state bound by the 2007 Hague Protocol" (the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance). Slovenia is a member state bound by the 2007 Hague Protocol. The decision in focus in the present appeal was given in Slovenia and therefore the provisions of Chapter IV section 1 apply. The United Kingdom is not bound by the 2007 Hague Protocol, consequently, if the tables had been turned and the focus was on a decision of the court in England and Wales, Maintenance Regulation, Chapter IV section 2 would apply.
The engine room of Chapter IV, section 1 is contained in Article 17 which provides:
"(1) A decision given in a Member State bound by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition.
(2) A decision given in a Member State bound by the 2007 Hague Protocol which is enforceable in the State shall be enforceable in another Member State without the need for a declaration of enforceability."
Maintenance Regulation Chapter IV, section 3 sets out a number of "common provisions" which apply whether or not the member state has adopted the Hague Protocol. In the context of this appeal Article 42, within Chapter IV, section 3, is of importance:
"Article 42: No review as to substance
Under no circumstances may a decision given in a Member State be reviewed as to its substance in the Member State in which recognition, enforceability or enforcement is sought."
Finally, it is necessary to refer to Article 48 which relates to "Court Settlements and Authentic Instruments" and states:
"Article 48: Application of this Regulation to court settlement and authentic instruments
(1) Court settlements and authentic instruments which are enforceable in the Member State of origin shall be recognised in another Member State and be enforceable there in the same way...
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