Divorce
Divorce

New EU Maintenance Regulation   

Warning: The information set out below is a general guideline provided by DOMENECH ABOGADOS. Specific advice should be sought before any action in reliance on it is taken, as explained more fully in this website's legal notice.

Once a divorce is over and the dust has settled, emotional wounds can begin to heal.  But those wounds can be re-opened and resentment reignited when a newly divorced spouse  (often the primary carer of the couple’s children) finds herself clutching an order for payment of maintenance which the ex-spouse - now safely abroad - simply ignores.  

As from 18 June 2011, a new regulation applies throughout almost all the European Union.  Its technical name is “Council Regulation (EC) Nº 4/2009 of 18 December 2008”, but it’ll be commonly known as “the Maintenance Regulation“.  This new set of rules should make court orders for maintenance issued in one EU country more easily enforceable in another.  The Maintenance Regulation needs to be borne in mind by those planning to divorce in Spain (or elsewhere in the EU), and also anyone planning to enter into a pre-nuptial agreement. 

It’s important to understand what the word “maintenance” means in the context of the Maintenance Regulation.  Of course, it includes monthly payments to support an ex-spouse or children of a couple post-divorce. But it can be interpreted more widely than that: “maintenance” will also include orders under which property is transferred with the aim of supporting the needs of an ex-spouse or the couple’s children.    

The detailed procedure for enforcing maintenance orders between EU member states will depend on which country the order comes from.  For instance, a maintenance order made by a Spanish court will be directly enforceable in the UK;   however, things won’t be quite so simple the other way round, and the process will be more complex for enforcing in Spain a UK maintenance order.  But despite such technical difference, a mother struggling to make ends meet in Belfast should find the Maintenance Regulation helps her when it comes to forcing the Madrid-based employer of her children’s father to deduct maintenance payments from his salary.

Thanks to the Maintenance Regulation, those entering into an agreement before marrying which sets out what will happen to their assets and how much one spouse must pay the other on divorce can specify which EU country’s courts shall deal with maintenance obligations. So a couple agreeing in a pre-nuptial agreement that the Spanish courts will decide matters relating to spousal maintenance who subsequently move to live in Glasgow will find that such maintenance issues can’t be decided in Scotland (when years later the husband issues divorce proceedings) but will be referred back to the courts of Spain.  This could mean Scottish litigation as well as Spanish litigation: lawyers in both countries should be pleased, but will the couple be so happy?          

Where proceedings for maintenance are begun in the courts of one EU state, the Maintenance Regulation provides that courts of other EU states must decline to hear applications regarding maintenance.  That works neatly in countries, like the UK, where the divorce will deal at one and the same time with maintenance obligations and property adjustment orders.  But, in a country like Spain, where property adjustment is more often dealt with in separate proceedings after divorce, there could be undesired consequences.  Where needs-based property adjustment is required in the context of a Spanish divorce, the Spanish court dealing with the divorce may find itself unable also to deal with later needs-based property adjustments because, subsequent to the Spanish divorce being begun by one spouse, the other has issued maintenance proceedings for needs-based property adjustment in another EU state.  Again, good for the lawyers, but not for their clients!


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