C-220/95

VAN D E N BOOGAARD v LAUMEN

OPINION OF ADVOCATE GENERAL JACOBS delivered on 12 December 1996 *

1. The essential issue before the Court in 3. Article 5 of the Brussels Convention pro- this case, which has come by way of refer- vides: ence for a preliminary ruling from the Arrondissementsrechtbank te Amsterdam (District Court, Amsterdam), is how an order for the payment of a lump sum made by the High Court of Justice of England and Wales in the context of divorce proceedings 'A person domiciled in a Contracting State is to be classified for the purposes of the may, in another Contracting State, be sued: Brussels Convention on jurisdiction and the enforcement of judgments in civil and com- mercial matters. 1 More particularly, does such an order relate to 'rights in property arising out of a matrimonial relationship' within the meaning of Article 1 of the Con- vention, in which case it may not be 1. ... enforced pursuant to the Convention, or does it relate to maintenance, in which case it is enforceable thereunder?

2. in matters relating to maintenance, in the courts for the place where the maintenance Relevant provisions of the Brussels Conven- creditor is domiciled or habitually resident tion or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, 2. The second paragraph of Article 1 of the unless that jurisdiction is based solely on the Brussels Convention provides that that Con- nationality of one of the parties; ...' vention is not to apply to '(1) the status or legal capacity of natural persons, rights in property arising out of a matrimonial rela- tionship ...'.

brought in the State of the defendant's domi- the regime of community of property. In cile was precisely to enable a married but 1980, as permitted by Netherlands law, they separated woman to sue her husband for entered into a separation of goods agree- maintenance in courts local to her. 2 In order ment, thereby dividing their assets in to effect this, a further exception to the gen- approximately equal shares. eral scheme of the Convention was neces- sary: Article 5(2) is the only provision in the Convention which offers habitual residence as an alternative criterion to domicile for establishing jurisdiction. Since in most juris- dictions there is substantial overlap between the two concepts, it may be wondered why Article 5(2) so derogates from the general rule. The reason is that in some Contracting States a woman acquires on marriage the domicile of her husband; accordingly confer- ring jurisdiction solely on the courts of the place where a married but separated woman was domiciled would not always have achieved its objective of enabling the woman 6. In early 1982, the parties settled in the to sue in her, rather than her estranged hus- United Kingdom. The marriage was dis- band's, local courts. solved by the High Court of Justice, Lon- don, in 1988; the English court presumably assumed jurisdiction on the basis that one or both of the parties had been habitually resi- dent in England for one year before com- mencement of the divorce proceedings. 3 The former wife subsequently applied to the High Court for full ancillary relief, namely for financial provision and property adjust- ment orders in accordance with sections 23 and 24 of the Matrimonial Causes Act Background to the order sought to be 1973. 4 O n 25 July 1990 Cazalet J made an enforced order of which the essential elements are that the husband (i) transfer to the wife the matrimonial home and a De Heem painting; (ii) pay the wife a lump sum of £355 000 and (iii) make periodical payments (initially £35 000 per annum pursuant to an order made earlier in the proceedings, subsequently £30 000 per annum) to the wife without interruption 5. Mr Van den Boogaard and Miss Laumen, until payment of the lump sum and transfer who both have Netherlands nationality, were of the home and painting. married in 1957 in the Netherlands under

'The formal application before me is an application by a wife against her husband for full ancillary relief, including periodical pay- ments for herself and the two youngest chil- dren of the family. I have been told that she does not at this stage wish to pursue her claim for periodical payments in regard to the two children; she reserves her right to come back and pursue that claim at a later If one then deducts from the sum total of stage. those figures, that is, the £10 000 she has and the £35 000 which she can find from her chattel sales, £430 000 from 39 Connaught Square and the £60 000 for the De Heem which I order to be transferred to her so that she can sell for that net sum of money, she She has further told me through counsel that should be able to raise or have available to she would wish, if it could be achieved, that her £535 000 towards the total which I con- there should be a clean break between herself sider she requires of £875 000 in terms of and her former husband. It would then fol- cash to provide for herself. A deduction of low that, if and when any appropriate capital £535 000 from £875 000 leaves £340 000. sums were to be paid to her, her periodical From the evidence before me, I am satisfied payments claim could be dismissed. That that the husband has the means to meet this would then ensure that she was no longer order. Furthermore I am satisfied that he will reliant on her husband by way of support. still thereafter be left with ample funds to provide suitably for his own needs and those of the two youngest children. I also consider that this is pre-eminently a case in which it is appropriate for there to be a "clean break" with the parties' financial obligations to each other terminated.

That is the lump sum order that I propose to make.' 10. First, it is clear from the judgment that Cazalet J's starting figure of £875 000 in the above calculation, being the total which he considered that the former wife required to provide for herself, represents the total of (i) £375 000 to acquire and move into appropriate accommodation and (ii) £500 000 being the capitalized sum, calculated in accordance with English case-law, required to provide annual income of £30 000, considered by Cazalet J to be the appropriate 8. The 'compelling reasons' for disregarding figure for her. the Dutch separation of goods agreement mentioned by Cazalet J were mainly that the wife had entered into the agreement fearing that her husband was facing imminent bank- ruptcy and that the husband had entered into it in the undisclosed knowledge of an immi- nent and substantial commission payment. As explained further below, 7 under English law an agreement between spouses as to the ownership of their property will not bind the court with power to make financial and property arrangements on their divorce.

11. Secondly, Cazalet J made the point that 6 — The judgment here refers to ultimately fruitless proceedings the former wife could not properly be by the wife in an attempt to trace a large commission pay- regarded as having any earning capacity, ment allegedly receivea by the husband in 1982. Assets worth £237 000 had been removed from the account a week being 55 and still being occupied with look- before the Swiss courts granted a freezing order, which when served froze the remaining one guilder in the account. ing after the three younger of the six chil- 7 — See paragraph 60. dren of the marriage.

13. O n 19 July 1993 Mr Van den Boogaard, the former husband, appealed to the Arrondissementsrechtbank te Amsterdam 15. The Arrondissementsrechtbank tends against the grant of leave to enforce in so far towards the view that the final order 'relates as it referred to the final order, apparently on (partly) to "rights in property arising out of the basis that that order was not a decision a matrimonial relationship" within the mean- relating to maintenance obligations and ing of ... Article 1 of the Brussels Conven- hence was not enforceable pursuant to the tion', in which case the order for enforce- Hague Convention. Before the national ment could not have been given on the basis court he appears to accept that the earlier of either the Brussels Convention or the annual payment of £35 000 is maintenance and states his readiness to comply. He sub- mits however that the final order (by impli- 8 — Case C-127/92 Enderby [1993] ECR 1-5535, paragraph 10 of cation apart from the periodical payments the judgment. 9 — Case 145/86 Hoffmann v Krieg [1988] ECR 645, paragraphs aspect), in so far as it concerns divorce, con- 26 to 34 of the judgment.

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Hague Convention. In reaching that view it paragraph of Article 1 of the Brussels Con- stated: vention even though:

(a) the income requirement is capitalized;

'having regard to the obligations imposed on Van den Boogaard which amount to a trans- fer of assets — in particular the transfer of the house belonging to Van den Boogaard (b) an order was made to transfer the house and of his painting — and, in addition, to the and the De Heem painting which, reasoning of the English judge — who according to the decision, belong to the expressly stated that he did not consider that husband; the marriage settlement was binding —, the decision has such consequences for the rela- tions as regards property rights between the parties that it cannot be regarded as a "decision in respect of maintenance obliga- tions'". (c) in his decision, the English judge himself expressly stated that he did not regard the marriage settlement as binding;

Relationship between the Brussels Conven- tion and the Hague Convention

18. Written observations were submitted only by the Austrian Government and the Commission; the parties and the Commis- sion were represented at the hearing.

20. Although Miss Laumen relied on the Hague Convention in her * application for enforcement, the referring court has inter- preted the application 'as signifying that Laumen also sought to rely in the alternative on the Brussels Convention in so far as it 19. The national court's question is highly would afford her a more favourable outcome specific, referring as it does to the enforce- than relying on the ... Hague Convention'. ment of the actual order made by Cazalet J. As I shall explain, however, in my view it would be more appropriate for the Court to lay down some general guidelines which could be applied both by the referring court in this case and by other courts faced in future with a similar problem. Before attempting to formulate some guidelines, I propose to review in some detail the history and scope of the relevant provisions of the Convention: this will I hope both illustrate 21. The Hague Convention, which has been the differences separating the civil law and in force between the United Kingdom and common law approaches to the issues raised the Netherlands since 1981, establishes a sys- in this case and assist in reconciling them. tem for the reciprocal recognition and First however I will consider another issue enforcement of decisions relating to mainte-

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23. There is accordingly an overlap between the Hague Convention and the Brussels Convention with regard to the enforcement (b) ... Where a convention on a particular of decisions relating to maintenance, whereas decisions relating to rights in property aris- matter to which both the State of origin ing out of a matrimonial relationship are and the State addressed are parties lays enforceable under neither convention. down conditions for the recognition or enforcement of judgments, those condi- 10 — Cited in note 1. 11 — Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on 24. The first paragraph of Article 57 of the jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpreta- applicable version of the Brussels Conven- tion by the Court of Justice, OJ 1978 L 304, p. 1.

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12 — A provision identical to Article 25(2) of the 1978 Accession Convention was inserted into the Brussels Convention by 14 — By M. Verwilghen, published in Actes et documents de la the 1989 Accession Convention as Article 57(2). Douzième session — Tome IV — Obligations alimentaires, 13 — It may be noted that that procedural framework may be The Hague, Bureau Permanent de la Conférence, 1975, further simplified by the Convention between the Member p. 95. States of the European Communities on the simplification 15 — The Brussels Convention came into force on 1 February of the procedure for the enforcement of maintenance 1973; the Special Commission's Report was prepared in payments, signed on 6 November 1990. That convention June 1972. comes into force 90 days after ratification by the twelve then Member States. To date, only Italy and Ireland have 16 — Paragraph 117 of the Report. ratified it. 17 — Paragraph 118.

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The background to Article 1 — 'rights in national rules governing proprietary rela- property arising out of a matrimonial rela- tionships between spouses. 20 There were tionship' two separate but overlapping reasons for excluding such regimes from the Brussels Convention.

31. It appears from the Jenard Report 19 that Article 1 of the Convention was intended to 33. Secondly, there were public policy con- exclude from the Convention this mosaic of siderations. These are of course particularly strong in the often associated context of divorce, where 'laws are rooted in different 18 — See further the Jenard Report, p. 11; the Report by Dr Peter moral and religious attitudes which make it Schlosser on the Convention on the accession o f the King- dom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpreta- tion by the Court of Justice, 1979 OJ C 59, p. 71 (the 20 — P. 11. Schlosser Report), paragraphs 45 to 47, and the Opinion of 21 — See the comment by G. A. L. Droz on de Cavei v de Cavei Advocate General Warner in Case 143/78 de Cavei v de in Revue critique de droit international privé, 1980, p. 621 Cavei [1979] ECR 1055, at p. 1073. at 626. 19 — Cited in note 2. 22 — P. 10.

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23 — Sec the observations of the United Kingdom in de Cavei v 26 — Jenard Report, p. 11. de Cavei, cited in note, p. 1061. 27 — Sec further P. Beaumont and G. Moir, 'Brussels Convention 24 — Jenard Report, p. 44; Hoffmann v Krieg, cited in note, para- II: A New Private International Law Instrument in Family graph 21 of the judgment and Case C-78/95 Hendrikman Matters for the European Union or the European Commu- and Feyen v Magenta Druck fi- Viering, judgment of nity?', European Law Review, 1995, p. 268 and K. D. Ker- 10 October 1996, [1996] ECR I - 4943, paragraph 23 of the ameus, 'The Scope of Application of the Brussels Conven- judgment. tion and its Extension to Matrimonial Matters', La 25 — G. A. L. Droz, Compétence judiciaire et effets des juge- cooperazione giudiziaria nell'Europa dei cittadini situazione ments dans le marché commun, Paris, Librairie Dalloz, esistente prospettive di sviluppo {Speciale documenti giusti- 1972, paragraph 43(2) on p. 34. zia — 1, 1996), cols 69 to 78.

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36. As a result of the conflict between the Some provisions apply to all marriages, irre- approach of the common-law acceding States spective of the particular "matrimonial and that of the original six civil-law States, regime" under which spouses live ... It is the concept of rights in property arising out within the spirit of Article 1, second para- of a matrimonial relationship is considered in graph, point 1 of the 1968 Convention to some detail in the Schlosser Report. 28 Schlo- exclude those provisions concerning prop- sser analyses in greater depth than Jenard the erty rights affecting all marriages from its position in the original six Contracting scope of application, in so far as they are not States, pointing out that the concept does not covered by the term "maintenance claims" ... cover the same legal relations in all the sys- tems concerned. The report states:

As a negative definition, it can be said with certainty that in no legal system do mainte- nance claims between spouses derive from rules governing "matrimonial regimes"; nor are maintenance claims confined to claims 28 — Cited in note 18. for periodic payments ...

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The Convention does not apply ... if the sub- that convention and in the 1973 Hague Con- ject matter of the proceedings concerns vention. 30 That convention similarly con- issues which have arisen between spouses ... tains no definition: the Report of the Special during or after dissolution of their marriage, Commission which drafted it explains: and which affect rights in property arising out of the matrimonial relationship. The expression "rights in property" includes all rights of administration and disposal — whether by marriage contract or by statute — of property belonging to the spouses.' 29 'The Experts recalled that their colleagues meeting in 1956 under the auspices either of the Hague Conference or of the United Nations Organization when confronted with the difficulty of drafting such definitions, had attempted in vain to arrive at a satisfac- tory text.' 31 37. Unfortunately the United Kingdom implementing legislation did not take up the invitation to indicate which legal relations form part of 'matrimonial regimes', merely setting out the text of the Convention. As explained below, however, English law sub- sequently developed in a way which did not 39. The most that can be derived from the make it feasible to draw a clear legislative travaux préparatoires for the Hague Con- distinction. vention of 24 October 1956 on the law appli- cable to maintenance obligations towards children and the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to mainte- nance obligations towards children, referred to in the above quotation, is that it was intended that the term should be interpreted broadly. 32 The background to Article 5(2) — 'mainte- nance'

However, English law, which is characterized by judicial discretionary powers and which 'The mere fact that the courts in the United does not favour inflexible systematic rules, Kingdom have power to order not only peri- does not make a distinction as to whether odic payments by one spouse to the other the payments ordered by the court are after a divorce, but also the payment of a intended as damages or as maintenance.' 36 single lump sum of money, does not there- fore prevent the proceedings or a judgment from being treated as a maintenance matter. Even the creation of charges on property and the transfer of property as provided on the Continent, for example in Article 8 of the Italian divorce law, can be in the nature of maintenance.' 34 The notion of compensating the innocent party must, however, be now regarded as considerably less relevant given the marked trend in European divorce laws away from a fault-centred concept in favour of divorce by mutual consent, which in one form or another was introduced between 1970 and 1978 in Austria, Belgium, France, Germany, Italy, Luxembourg, the Netherlands, Portu- 42. Secondly, it is difficult to distinguish gal and the United Kingdom. 37 between claims for maintenance on the one hand and claims for damages and the 35 — Paragraph 94. 36 — Paragraph 95. 37 — See for a comparative study D. Dumuse, Le divorce par 33 — See the last paragraph in the quotation in paragraph 36. consentement mutuel dans les législations européennes, 34 — Paragraph 93. Geneva, Librairie Droz, 1980.

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Consequently, the term "rights in property arising out of a matrimonial relationship" includes not only property arrangements 45. In de Cavei v de Cavei ('de Cavell') 39 specifically and exclusively envisaged by cer- the Court considered the scope of the exclu- tain national legal systems in the case of mar- sion of 'rights in property arising out of a riage but also any proprietary relationships matrimonial relationship' in Article 1. That resulting directly from the matrimonial rela- tionship or the dissolution thereof.

38 — Paragraph 96. 39 — Cited in note 18. 40 — Paragraph 2 of the judgment.

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Disputes relating to the assets of spouses in 47. That statement echoed the view of the course of proceedings for divorce may Advocate General Warner, who had pro- therefore, depending on the circumstances, posed: concern or be closely connected with:

'to give to the phrase a broad meaning, on (1) questions relating to the status of per- the footing that, in practice, in few disputes sons; or between spouses about property is it likely that the "matrimonial relationship" between them will play no part. ... The upshot is that, in my opinion, a judgment or order relating to a property dispute between spouses should be presumed to be outside the scope of the Convention unless it is apparent on (2) proprietary legal relationships between the face of the particular judgment or order spouses resulting directly from the mat- in question that it is not.' 42 rimonial relationship or the dissolution thereof; or

that the protective measures at issue were of so as to make it clear that such orders ancil- their nature ancillary: since such measures lary to divorce proceedings were included. 'can serve to safeguard a variety of rights, Unsurprisingly the Court found that the their inclusion in the scope of the Conven- payments were in the nature of maintenance, tion is determined not by their own nature and concluded that the scope of the Conven- but by the nature of the rights which they tion extended 'to maintenance obligations serve to protect'. 44 It appears therefore that which legislation or the court places on the ratio decidendi was that, since the mea- spouses for the period after divorce'. 46 sures were ancillary to proceedings which were clearly outside the scope of the Con- vention (divorce and the consequential disso- lution of the matrimonial regime governing the French marriage in question), they were thereby also outside its scope.

44 — Paragraph 8 of the judgment. 46 — Paragraph 11 of the judgment. 45 — Case 120/79 [1980] ECR 731. 47 — Case 25/81 [1982] ECR 1189.

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Jenard Report that the expression 'civil and United Kingdom do not dovetail with those commercial matters' is very wide and that in the continental Contracting States: the the formula of specific exclusion rather than issue is to what extent they therefore fall an exhaustive positive definition of the scope outside the exclusion. Before turning to this of the Convention was adopted with a view question, it may first be useful to describe to preserving that breadth: 'in this respect briefly the legislative framework within the Convention should be interpreted as which an English court will grant financial widely as possible'. 48 relief on divorce.

53. It should perhaps also be borne in mind that the Court in de Cavei I was not focus- 55. Since the enactment of the Married ing on the frontier between 'rights in prop- Women's Property Act 1882, which pro- erty arising out of a matrimonial relation- vided that a married woman was capable of ship' and maintenance. Where the dividing acquiring, holding, and disposing of prop- line between those two concepts is at issue, a erty as if she were a feme sole 49 (unmarried broad interpretation of the former will inevi- woman), English law has started from a pre- tably be at the expense of the scope of the sumption of separate ownership of property latter. I can see no reason for thus disturbing in marriage; that presumption may of course the equilibrium of two provisions of equal be rebutted by actual or inferred intention standing. that specific property is jointly owned.

ship of property between spouses; their cumstances of the case, first consideration powers to make property orders were being given to the welfare of any minor child restricted to reflecting existing patterns of of the family. In exercising its powers to ownership. 50 Most of the 1970 Act survives make a lump sum order or a property adjust- in the current legislation, the Matrimonial ment order in relation to the other spouse (as Causes Act 1973. The provisions of particu- opposed to a child of the family), the court is lar relevance for the present case are sec- required to have regard to each spouse's tions 21, 23, 24, 25 and 25A 5 1 of the 1973 income, earning capacity, property and other Act; their effect is as follows. financial resources; their respective financial needs, obligations and responsibilities; the standard of living enjoyed by the family before the breakdown of the marriage; the age of each spouse and the duration of the marriage; any physical or mental disability of either spouse; each spouse's contributions to the welfare of the family, including any con- tribution by looking after the home or caring 57. O n divorce (or nullity or judicial separa- for the family; their respective conduct, if it tion), the English courts have a wide discre- is such that it would in the opinion of the tion to order financial provision, including court be inequitable to disregard it; and the periodical and lump sum payments between value to each spouse of any benefit, for spouses, and property adjustment orders, example a pension, which that spouse will including transfer of property between lose the chance of acquiring. spouses. The discretionary power to adjust property rights between spouses is in marked contrast to certain civil-law systems, where a court on divorce has no power to order transfers of property, being bound by existing patterns of ownership which will in turn normally derive from a prior agreement or from overriding legal provisions.

and responsibilities towards the other'. 52 61. One of the changes wrought by the 1970 That provision was dropped when section 25 Act, the precursor of the 1973 Act, was the was recast in 1984. At the same time, the Act abolition of the previous terminology, which was amended so as to require the court in all had distinguished between alimony, mainte- cases where it makes an order in favour of a nance and periodical payments. All are now party to the marriage on or after a decree of described as financial provision and may take divorce or nullity to consider whether it the form of periodical payments or a lump would be appropriate so to exercise its pow- sum payment. The term ‘maintenance' was ers ‘that the financial obligations of each rejected as suggesting some inferiority on the party towards the other will be terminated as part of the recipient. 56 Although a lump sum soon after the grant of the decree as the may be for maintenance — indeed on a court considers just and reasonable'. 53 In 'clean break', which the court is now other words, the court is now under a duty directed to impose if it considers it appropri- to consider whether to impose a 'clean ate, it will be the only means of ordering a break'. maintenance payment between spouses — the 'more important use of the power ... is to adjust the parties’ capital assets. If, for example, the husband owns shares, the court may wish the benefit of a proportion of these to be given to the wife. ... it may do this directly by ordering them to be trans- ferred to her in specie; it will be much more common, however, to order him to make a lump sum payment to her.' 57

64. I would make the preliminary point that the mere fact that there is no separate frame- work of matrimonial property regimes in English law does not mean that orders on divorce made by an English court will there- Guidelines for the national court fore always fall outside the exclusion in Article 1 and hence, by virtue of being a civil matter not expressly excluded, be enforce- able under the Convention.

63. In the light of the above, I will now pro- pose some indications to assist the national 65. First, it appears beyond doubt that it court to judge whether a lump sum order was intended that on the accession of the made by an English court in the context of United Kingdom and Ireland the definition divorce proceedings relates to 'rights in would have some application in those States: property arising out of a matrimonial rela- see the comments in the Schlosser Report set tionship' within the meaning of Article 1 of out in paragraph 36 above, including the the Convention or whether it relates to invitation to the legislature of those States to maintenance. In the course of formulating frame a definition. That was moreover the these guidelines I will also consider the rel- understanding of Advocate General Warner, evance, for categorizing an order, of the spe- who in de Cavei I 59 stated his view that the cific matters raised by the national court, accession to the Convention of the United namely the capitalization of an income Kingdom and Ireland would increase the dis- requirement, the parallel transfer of property parities in the rules governing proprietary order and the disregard by the English court relationships between spouses which were of the civil-law matrimonial property agree- intended to be excluded by Article 1. 60 ment.

68. Finally, the alternative view, namely that the English rules do not fall within the defi- nition because they are part of the general law rather than imposed by specific matri- monial property legislation, is difficult to reconcile with the broad interpretation of the 67. It may also be added that the reasons for term 'rights in property arising out of a mat- excluding 'rights in property arising out of a rimonial relationship' given by the Court in matrimonial relationship' from the frame- de Cavei I 63and in particular with its state- work set in place by the Brussels Conven- ment that the term 'includes not only prop- tion — namely public policy and the dispar- erty arrangements specifically arid exclus- ity in substantive law and conflict rules — ively envisaged by certain national legal apply equally to the English system. The systems in the case of marriage but also any public policy issue is clearly of equal force, proprietary relationships resulting directly and the differences separating both the sub- from the matrimonial relationship or the dis- stantive law and the conflict rules from their solution thereof'. 64 civil law counterparts are, at least as regards the substantive law, greater than the differ- ences between the various civil law regimes. With regard in particular to the conflict 62 — Actes et documents de U Treizième session. Tome II, Matri- monial property regimes. The Hague, Bureau Permanent de rules, it should not be thought that those la Conférence, 1978, pp. 65 to 70. That session of the Hague Conference led to the adoption of the Hague Con- applying to matrimonial property rights in vention on the law applicable to matrimonial property regimes of 14 March 1978; notwithstanding its participation in the drafting, the United Kingdom is not a party to that convention. 63 — Cited in note 18. 61 — Paragraph 45. 64 — Paragraph 7 of the judgment.

The lump sum as maintenance

71. I do not see how the English judge's statement that he did not regard the separa- tion of goods agreement as binding on him is relevant to the categorization of the final 73. Turning to the criteria for the categoriza- order. As a matter of English law it was not tion of particular lump sum orders, it is clear binding on him, although it is a circumstance that, at one end of the spectrum, where the

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recourse to periodical payments. In this case, 'requires ... in terms of cash to provide for for example, in the context of the sum of herself', the amount awarded by way of £500 000, part of the total awarded, the judge lump sum order was £340 000 since most of made it clear that the reason for capitalizing the balance was granted to the former wife the income requirement was to ensure that by means of orders that property directly or the former wife was 'no longer reliant on her indirectly owned by the former husband be [former] husband by way of support'. transferred to her with a view to their sale to raise cash.

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view, it will concern 'rights in property aris- capital sum representing part of the total ing out of a matrimonial relationship' and lump sum ordered) the balance of the total hence be unenforceable under the Conven- sum relates to rights in property arising out tion. of a matrimonial relationship.

82. If a national court in a particular case were to decide that an English lump sum Combined orders order related in part to rights in property and in part to maintenance, it may, by virtue of the second paragraph of Article 42 of the Brussels Convention, order enforcement to the extent that the order related to mainte- nance notwithstanding that the order would be unenforceable to the extent that it related to rights in property. 81. There will however inevitably be lump sum orders which fall somewhere in the con- tinuum between the extremes of manifest maintenance and manifest property division. Some such orders may well partake of the attributes of both types, with a proportion destined to ensure maintenance and the remainder intended to effect a division of the 83. Article 42 provides: matrimonial property. Provided that the order is clearly and fully reasoned, the court before which enforcement is sought should be in a position itself to ascertain the intended proportions. In addition to clear reasoning, it is imperative that an order intended to combine maintenance· and a divi- 'Where a foreign judgment has been given in sion of property be mathematically transpar- respect of several matters and enforcement ent, so that the court before which enforce- cannot be authorized for all of them, the ment is sought is able to sever the court shall authorize enforcement for one or enforceable from the unenforceable. Even more of them. where.it is not apparent from the face of a lump sum order that it was intended to reflect both the need for maintenance and a division of property, it would in my view be reasonable for the enforcing court to con- clude that, in circumstances where a level of maintenance regarded as appropriate has already been assured (for example by a speci- An applicant may request partial enforce- fied level of income to be generated by a ment of a judgment.'

68 — See the Jenard Report, p. 53. It may be noted that Article 10 of the Hague Convention is to much the same effect as the first paragraph of Article 42.

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