The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

registration of a maintenance order

made in the High Court of Ireland.

The Facts

The parties were married in 1975

and established their home in

Ireland. In 1985 they separated.

The wife and two children remain-

ed in Ireland and the husband

returned to England. In 1986 the

wife issued a writ for maintenance

in the Irish High Court. The hus-

band filed for divorce in England

and applied in Ireland to stay the

maintenance proceedings. In

January 1987 he obtained a decree

nisi.

In February 1987, the Irish court

refused to stay the maintenance

proceedings and directed the

husband to make periodical pay-

ments for his wife and children. The

husband was granted a decree

absolute in March 1987.

In February 1988, Barr J in the

High Court of Ireland declared that

the English decree was entitled to

recognition in Ireland as valid to

dissolve the marriage. In November

1989, Barr J decided that despite

the recognition of the English

decree absolute, the interim

periodical payments order in the

wife's favour remained in full force.

The interim periodical payments

order was registered in the Hove

magistrates' court under the

Maintenance

Order

(Reciprocal

Enforcement) Act, 1972

as modi-

fied by the

Reciprocal Enforcement

of Maintenance Orders (Republic of

Ireland) Order 1974

(S.I. No. 2140).

The husband appealed against the

registration of the order relating to

the wife's maintenance on the

grounds that it was irreconcilable

with the decree absolute. The

justices allowed the appeal on the

ground of irreconcilability. The wife

appealed.

Enforcement of Irish maintenance

order in England.

Mrs. Jus t i ce Booth for the

Divisional Court said that there

were two routes that might be

taken to enforce in the English

courts a maintenance order made

in Ireland. The first was that chosen

on behalf of the wife under the

1972 Act and the 1974 Order. The

second was found in the

Civil

Jurisdiction and Judgments Act,

1982

which implemented the 1968

Convention on Jurisdiction and the

Enforcement of Judgments in Civil

and Commericai

Matters

(The

Brussels Convention).

Both provided not only for the

recognition and enforcement of

judgments and orders, but they also

defined those situations where

such recognition and enforcement

should be refused. Under article 27

of the Convention, a judgment

should not be recognised if the

judgment was irreconcilable with

one given in a dispute between the

same parties in the State in which

the recognition was sought. The

same ground prohibiting the re-

gistration of an order was to be

found in article 6(5) of the 1974

Order. That was the ground on

which the husband relied and on

which the justices refused to

register the order.

European Court of Jus t i ce

The European Court of Justice in

HLM Hoffmann -v-A. Krieg

[1988]

ECR 645 considered the applica-

tion of article 27 of the Convention,

where a wife obtained a main-

tenance order in Germany; the hus-

band was granted a decree of

divorce in the Netherlands and the

wife applied to the Netherlands

court to enforce the German main-

tenance order. The Netherlands

High Court referred the matter to

the European Court of Justice.

The European Court of Justice

said that in order to ascertain

whether a foreign judgment order-

ing a person to make maintenance

payments to his spouse by virtue of

his conjugal obligations to support

her was irreconcilable within article

27(3) with a national judgment

pronouncing the divorce of the

spouses, it should be examined

whether the judgments entailed

legal consequences that were

mutually exclusive.

The European Court of Justice

decided that the German main-

tenance order could not be en-

forced in the Netherlands.

Mrs. Justice Booth considered

that the facts in the above case did

not differ in any material respect

from the facts of the present case.

Mrs. Justice Booth said it would be

wholly undesirable for the Division-

al Court to distinguish the applica-

tion of article 27 (3) of the

Convention, which was part of

English law, and the application of

article 6 (5) of the 1974 Order.

The reasoning of the European

Court of Justice was as apposite to

article 6 (5) as to article 27 (3). The

Irish maintenance order was

founded on the husband's obliga-

Doyle Court Reporters

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