Melanie Barnes, Consultant Solicitor based in Oxford, of Major Family Law, the divorce and family law specialists, comments:
It is not yet clear how family law will be affected when the UK exits the European community, but anticipated that we will continue with recognise maintenance orders made by courts in the other 27 member states under the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. The European Union ratified the Hague Convention on behalf of all member states, and likely that the UK will deal with maintenance claims under those rules if the debtor or creditor is resident in the jurisdiction. With regards to a divorce, the old rules that require a petitioner to prove residence or domicile are likely to apply.
Reciprocal arrangements for maintenance within the EU are currently governed by the EU Maintenance Regulation 4/2009, which will no longer apply in the court of England and Wales when the UK leaves the European Union. Parents who live within the UK will no longer qualify for free legal assistance within the EU under those rules, and likewise, parents from abroad will not be entitled to legal aid in this country. The benefit of the EU Maintenance Regulation is that foreign orders are automatically recognised without further procedure. Future cases will need to be commenced through the Central Authority (known as REMO in the UK), and it is therefore likely that applications to apply for, or enforce, maintenance will once again be delayed by additional process.
Where a parent lives abroad, it is also possible for them to apply directly to the court of England and Wales for child support under Schedule 1, Children Act 1989. This Act grants the court power to make orders for periodical payments, secured periodical payments, lump sum and property transfer or settlement if they are ‘for the benefit of the child’. In many cases, the court will order that funds are settled on trust to the mother so that she is adequately housed during until the child’s majority, ensuring that both parents have an adequate standard of living. In making a decision under Schedule 1, Children Act 1989, the court will have regard to ‘all the circumstances of the case’ and take into account the income, earning capacity and financial resources of the parties, including any foreign assets and income that are disclosed.
If the court deals with child maintenance upon divorce, the court has power to order the payment of periodical payments, capital payments for the benefit of the child, special expenses and payment of school fees. There is no limit to the number of lump sum payments that can be ordered for a child, but capital payments are uncommon and there are few reported cases. Where parties are married, the court also has power to order an absolute property transfer to the spouse, which means that it will not return to the paying parent upon a child’s majority.