Should Standing Follow the Applicable Law or the Law of the Forum?

In a decision of 14 July, the Swedish Supreme Court clarified whether standing to bring maintenance proceedings is governed by the law applicable to the maintenance obligation appointed by the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations or by the law of the forum under the principle of lex for regit processum. The Court held that standing falls within the scope of the applicable law. Because Canadian law applied and did not permit the former spouse to bring the claim in the circumstances, the Court dismissed the proceedings as inadmissible.

Background

Two Danish nationals, formerly married to each other, had their last common habitual residence in Canada. One of them continued to reside in Ontario, Canada, while the other moved to Sweden.

In 2021, a Swedish court granted the couple a divorce. The former spouse residing in Canada also sought spousal maintenance. In a partial judgment on the law applicable to that claim, the Swedish court held that Canadian law applied pursuant to Article 3 of the 2007 Hague Protocol.

After the partial judgment had become final, the former spouse residing in Sweden applied to have the maintenance claim declared inadmissible. He argued that, under Canadian law, a former spouse cannot bring a claim for maintenance after a divorce decree has been issued in a country other than Canada.

Both the court of first instance and the court of appeal rejected the argument of the spouse residing in Sweden, holding that such a procedural issue is not part of the applicable law. That issue, on the scope of the applicable law, was appealed to the Supreme Court.

The Supreme Court’s Decision

In its judgment, the Supreme Court observed that it is an internationally recognized principle that procedural matters are governed by the law of the forum (lex fori regit processum). However, the characterization of an issue as procedural for private international law purposes is narrower than in purely domestic cases. Hence, the Supreme Court continued, it should primarily be procedural issues regarding formalities that should be characterized as procedural for private international law purposes.

Where conflict of laws rules derive from EU instruments, the distinction between substantive and procedural issues must be done autonomously, rather than by reference to national procedural law. In this case, the relevant conflict-of-laws rules were contained in the 2007 Hague Protocol, to which Article 15 of the EU Maintenance Regulation refers.

Article 11 of the Protocol contains a non-exhaustive list of matters governed by the law applicable to the maintenance obligation. Article 11(d) provides that the applicable law determines ”who is entitled to institute maintenance proceedings, except for issues relating to procedural capacity and representation in the proceedings”.

The Supreme Court concluded that Article 11(d) covers the issue of standing, but excludes issues of procedural capacity and legal representation. As the issue in the case was an issue of standing, Canadian law should be applied to it.

Based on the evidence submitted regarding the content of Canadian law, the Supreme Court found that spousal support is governed at both the federal and provincial levels in Canada. Under the federal Divorce Act, a court may make a spousal support order in a corollary relief proceeding. However, where a divorce has been granted abroad, a former spouse cannot commence such a proceeding, and a Canadian court therefore lacks jurisdiction to determine the issue of spousal support. Under Ontario’s Family Law Act, divorced spouses have no standing to bring a claim for spousal support.

Applying Canadian law, the Supreme Court held the maintenance claim inadmissible. The Court reasoned that this corresponded to the manner in which the matter would have been dealt with by a Canadian court.

It had also been argued that the Supreme Court should request a preliminary ruling from the Court of Justice of the European Union. The Supreme Court declined to do so, holding that the correct interpretation of EU law was clear.

Comment

The judgment promotes international decisional harmony. By treating the foreign-law limitation as part of the law governing the maintenance obligation, the Supreme Court sought to ensure that the claim would have the same procedural outcome in Sweden as it would in Canada. From a private international law perspective, this reasoning is welcome, as it advances the fundamental objective of achieving consistent outcomes across jurisdictions.

It is nevertheless unfortunate that the Supreme Court declined to request a preliminary ruling from the CJEU. Guidance from the CJEU on the distinction between matters governed by the applicable law and those governed by the procedural law of the forum would have been valuable.