Is the EU Maintenance Regulation Consigned to History?

By Christopher Carr, Barrister, 36 Family, 11 July 2023

Now that the end of the Brexit transition period is over three years ago, should we all just forget about the EU Maintenance Regulation? Surely, the name of the Regulation is a pretty big clue. Don’t fall into that trap!

For proceedings instituted before 11pm on 31 December 2020 and for proceedings or actions which are related to such legal proceedings, the Regulation continues to govern the jurisdiction for maintenance. The number of cases which were instituted before the transition deadline and are still ongoing is small and ever reducing. However, enforcement of the orders arising from those applications continues to be through the Regulation.

This means that there are still incoming and outgoing family law maintenance orders which should be enforced under the Regulation. For incoming orders, they can be enforced through the family court or through the Lord Chancellor / REMO procedure (MS v PS (C-283/16) EU:C:2017:104 [2017] 4 WLR 72.

Ongoing developments in relation to the Regulation need to be taken into account by practitioners. For instance, guidance since Brexit clarifies that when a member state (or in the UK’s case, a former member state) is considering enforcement of a maintenance order, it also has jurisdiction to determine an application opposing enforcement. It is also for that member state to apply its own rules of evidence including reaching its own determination as to whether any debt owed has been satisfied (FX v GZ (C-41/19) EU:C:2020:425).