Following the UK’s exit from the EU, in April 2020 the government applied to accede to the Lugano Convention 2007 as an independent member. Accension requires agreement of all signatories (all EU member states, Iceland, Norway, and Switzerland). The European Commission has recently refused consent and urged the Member states to do so too, citing that the UK does not have a ‘special link’ to the EU internal market. In other words, because the UK requested a basic free trade agreement with the EU and refused to be part of the EU single market.
Whilst the decision is not yet final, if the Commission does not change its mind, this could have adverse consequences on separated families with connections across Europe.
What is the Lugano Convention and why is it important for family cases?
The Lugano Convention is an international treaty negotiated by the EU on behalf of its member states with Iceland, Norway and Switzerland (the European Free Trade Association or ‘EFTA’ states). It extends the benefits of the EU framework of recognition and enforcement of judgments to the EFTA states by clarifying which national courts have jurisdiction in cross-border civil and commercial disputes and ensuring that judgments taken in such disputes can be enforced across borders.
In the context of family law, the convention contains key provisions governing jurisdiction, recognition, and enforcement of maintenance. ‘Maintenance’ is not limited to periodical payments but encompasses any order made by reference to the ‘needs’ of a spouse or child, even if the amount payable is by way of a lump sum. The relevant authority on the meaning of ‘maintenance’ for the purposes of the Lugano Convention makes it clear that maintenance should exclude any orders based on the English law concept of sharing.
Importantly, the Lugano Convention also preserves the lis pendens or ‘first to issue’ principle, whereby a court second seized of an action relating to maintenance must stay its proceedings in favour of the court first seized. Eliminating this rule could result in parallel proceedings taking place in two different countries in Europe relating to the same maintenance dispute.
Where do we go from here?
If accession to the convention is ultimately refused, the UK will be reliant on the Hague Convention 2005. These rules are less comprehensive and, as mentioned above, do not prevent parallel court cases taking place in competing jurisdictions. Under the Hague Convention, it will be much harder to enforce orders made in one jurisdiction in another, which could have disastrous effects on spousal and child maintenance payments for international families.
Whilst the EU has said no for now, there is still some hope that accession to the Lugano Convention will be obtained, as some EU member states are in favour of the UK’s bid. Another option for the UK could be to joint EFTA and join the Lugano Convention by virtue of that membership. For now, we will have to watch this space.
If you would like to discuss any issues arising from this change in the law, please contact a member of our specialist team who would be happy to advise you.
Sarah Musgrave
Solicitor, Katz Partners