The UK is a party to a number of European regulations, therefore waking up to the news today that the UK will be leaving the EU has created a great deal of uncertainty amongst professionals working in family law. As Nigel Shepherd, the Chair of Resolution, the largest national organisation of family lawyers, stated “it is too early to know the full implication for family law, but what is clear is that we are entering a period of great uncertainty.”
As family law continues to operate in an increasingly globalised world, the UK’s exit from the EU will have a significant impact on family law. We have outlined below a number of areas that are likely to be affected.
In order to dissolve a marriage, the Court must have jurisdiction to hear the case. Some parties who wish to divorce indulge in forum shopping, which is where a party tries to find a jurisdiction where the law is more favourable to their case and will provide them with a better divorce settlement. European Law in relation to which country can hear your case is governed by an EU regulation, commonly referred to as ‘Brussels II bis’. For example, couples who live in one European country but were born in another can choose which nation’s laws should apply to their divorce. This is achieved by the “race to court,” meaning that the first court ‘seised’ of the proceedings has jurisdiction. Therefore a party can secure the jurisdiction that they think will be more sympathetic to them, even if the parties are more closely connected to another European country. The effect of leaving the EU would remove this ability. This could lead to injustice for some families who have built their lives in one country but have to have their divorce proceedings heard in a nation that they no longer have any links to. They could also face an expensive jurisdiction battle.
It will be open for the UK to renegotiate the jurisdiction issue and come up with a new regime; however this is not something that is likely to be at the top of the Governments’ legislative agenda.
‘Brussels II bis’ also covers jurisdictional issues in relation to children, and is regularly featured in matters concering care proceedings, access rights and protection from child abduction, where one party removes a child from one country and keeps them in another. Because this protection will now be removed, lawyers will have to rely on The Hague Convention, The Luxembourg Convention and the Family Law Act 1986. Although The Hague convention has a large amount of similarities to Brussels II bis, they are not carbon copies of each other. There are important additions to Brussels II bis which are not present in the Hague Convention and will need to be addressed, such as a wide range of child protection measures including recognition and enforcement of orders concerning parental responsibility and contact.
Enforcement of Maintenance
Maintenance arrangements are currently regulated throughout the EU. The regulation provides rules for which country has jurisdiction in relation to maintenance disputes and for the recognition and enforcement of maintenance decisions from other Member States. The EU Maintenance Regulation will fall away, leaving a less uniformed approach to countries recognising orders from others and enforcing them. Therefore leaving us to rely on The Hague Maintenance Convention.
The Regulation on the protection of individuals and children from domestic abuse which ensures all victims of violence have the potential to get their protection orders recognised and enforced across the EU will no longer be available. Again there are other means available for a country to recognise an order of the other, but the uniform approach will be scrapped, as each country will have its own requirements.
Options Available to the UK
The UK is required to invoke Article 50, providing notice of its intention to leave the EU, during which time the terms of the UK’s exit will be negotiated. It is anticipated that this will take at least two years. During this period, the UK can seek to renegotiate its laws and treaties. The following may be options available to the UK:
- The UK could have a similar relationship with the EU as Norway and Iceland have currently and be part of the European Economic Area. This means that there will still be ‘free movement’, a large amount of EU law would still apply and we will pay a reduced contribution to the EU but the key issue would be that we would not have a role in making EU law. This is likely to be unacceptable as Britain does not want ‘free movement’.
- The UK could follow the Switzerland model and re-join the European Free Trade Association, whereby we would enter into trade agreements with EU countries.
- The UK could try to negotiate a Free Trade Agreement with the EU, covering both goods and services.
- The UK could decide to rely on its World Trade Organisation membership to trade with the EU, in the same way as the US and China.
Although the Hague Convention and other agreements will step into the place of ‘Brussels II bis’ and the European Regulations, there will likely be greater expense and less certainty for individuals. As Brexit’s impact on family law is unlikely to be a priority for the Government, it is likely these issues will not be resolved in the near future.
This blog was written by Nockolds' Family Law Team.
For further information please contact Nockolds' Family Law Team on 01279 755777 or email firstname.lastname@example.org.