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B v B (Maintenance Regulation - Stay) [2017] EWHC 1029 (Fam)

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In a tweet: H successfully stays English enforcement proceedings when variation proceedings already underway in Italy

Summary: The wife (“W”) was seeking to enforce various terms of a final order by “such method as the court may think appropriate”.  However, prior to the application, the husband (“H”) (an Italian national living in Italy) had applied in the Italian courts to vary those provisions. Consequently, H contended that the English court was obliged to stay the maintenance element of W’s application (Article 12 Maintenance Regulation) or, in the alternative, the English court should exercise its discretion to grant a stay (Article 13). W resisted, arguing that the Italian proceedings did not fall within the terms of either Articles 12 and 13.  

H had applied for a variation based on the parties’ contended change of circumstances since the date of the original award. W lodged a defence disputing the jurisdiction of the Italian court, in which she asserted that the terms of Article 3 Maintenance Regulation were not satisfied. After consideration of the parties’ further submissions, the Italian court had listed a hearing on 15 June 2017 to determine the matter of jurisdiction.  

H submitted that, since both the English and Italian proceedings were between the same parties and that the Italian court was first seised, the only question for the court was whether the two sets of proceedings involved the “same cause of action” for the purposes of Article 12(1).  

H argued that the question ought to be answered in the affirmative. This was based on the assertion that since the English court had the power to remit arrears of maintenance under s.31(2A) Matrimonial Causes Act 1973, variation and enforcement were one and the same issue. Further, H claimed that if the English court chose to determine whether the Italian court had jurisdiction, this would amount to a usurpation of the powers of the Italian court.

Conversely, W’s case was that the respective applications concerned different causes of action. In W’s submission, the English proceedings related to the enforcement of existing liabilities under the original award, and accordingly looked to the past, whereas the Italian proceedings concerned the variation of liability under the award, and thereby looked to the future. 

Further, W argued that the Italian court was not the court first seised, by reason of two alleged procedural failures on the part of H. Finally, she claimed that the Italian court would most likely decline jurisdiction with regard to the terms of Article 8(1) Maintenance Regulation, since she as creditor remained habitually resident in England.

Held: Having found that the case fell within the terms of Article 12 Maintenance Regulation, MacDonald J granted a stay of that part of W’s application for enforcement that related to the maintenance provisions in the original Order. His Lordship went on to state that the decision was based on the following specific points: 

  • In this case, both the court of enforcement (the Italian court) and the court of origin (the English court) were seised of proceedings that had the potential to result in an amendment to the 2011 Order, thereby creating the risk of irreconcilable judgments. 
  • With reference to the guidance of the Supreme Court in In the matter of ‘The Alexandros T’ [2013] UKSC 70, both the proceedings in Italy and in England involved the same cause of action for the purposes of the Maintenance Regulation. H’s application in Italy was based on an alleged change of circumstances; in applying s.31(2A) MCA 1973, the English court would also be required to consider any change of circumstances under s.31(7) MCA 1973.
  • With regard to W’s complaint that H had not followed the proper procedure in issuing his application in Italy, and without a declaration of enforceability, the decision of the CJEU in MS v PS Case C-238/16 confirmed that H was entitled to issue his application in the Italian court without going through the Central Authority. As the Italian proceedings had been constituted properly, the Italian court was the court first seised. 

MacDonald J therefore concluded that the court was obliged to stay W’s application until such time as the jurisdiction of the Italian court was established. 

In relation to W’s application for enforcement of non-maintenance related provisions, MacDonald J found that H was not yet in breach of those terms. The terms of the original order provided that H was required to make a lump sum payment “at a time to be agreed between the parties”. As there was no agreement between the parties, MacDonald J adjourned W’s application for enforcement, to be reinstated in the event that H either refused to agree a date for payment or failed to make payment by the agreed date.

 

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