19 December 2018
The impact of Brexit on family law
The impact of Brexit has been a hot topic for family lawyers with international clients over the past few months and remains so with the MPs’ vote on the Brexit deal set for January 2019.
In October, the House of Lords European Union Committee wrote to David Gauke, the justice secretary, expressing their concern that a no-deal Brexit will have a “profound and damaging” impact on the UK’s family law system, with a particular concern about the impact on vulnerable children who the system seeks to protect.
The reason Brexit is (whether there is a deal on the current terms or no deal) so important for family lawyers is that a number of pieces of EU legislation directly affect procedure in UK family law. These include the council regulation known to family lawyers as “Brussels IIa”, the EU maintenance regulation and various instruments which deal with the reciprocal enforcement of orders between EU member states.
It is important to remember however that substantive law (e.g. the basis on which you can divorce someone or the division of assets on divorce are determined by the country’s own legal principles – it is not determined by Europe).
So, for example, Brussels IIa provides, that where more than one EU member state has jurisdiction to deal with divorce or dissolution proceedings (which can easily be the case for international families who may live in one European country, but be a national of another) the country where proceedings are first issued secures the jurisdiction of the court; this prevents two sets of proceedings going on at the same time and potentially irreconcilable judgments. This is known as the “lis pendens” rule.
If we leave Europe with no deal, without the government writing the EU legislation into our domestic law, there are other instruments which deal with similar topics to the EU instruments. However it is widely acknowledged by family lawyers that these do not provide a comprehensive alternative (particularly with regard to jurisdiction as there is no equivalent of the “lis pendens” rule in other instruments).
This means that we would effectively be in the same situation as we currently are with other non-European countries – notwithstanding the many families with links in the UK and mainland Europe due to geographical proximity - with the option of being able to challenge jurisdiction on the basis that it is not the most appropriate forum for dealing with the dispute (known as the “forum conveniens” principle.
Some argue that is not necessarily a bad thing because it would enable arguments to be had about appropriate jurisdiction even within Europe rather than relying on the “lis pendens” rule which could result in a country dealing with a divorce to which the only link is the nationality of one of the spouses, rather than, for example, where they live or own property, however jurisdiction battles are often costly and time consuming.
There are of course many other important matters to consider, for example the EU has an enhanced toolkit for dealing with parental child abduction cases more quickly and efficiently than across the rest of the world.
Resolution, an organisation of family lawyers, of which the family team at B P Collins are members have, together with the Family Law Bar Association and the International Academy of Family Lawyers, produced a paper raising concerns about the impact of “no-deal” and of the current deal which appears to suggest that current EU legislation could be replicated into our domestic law, but without retaining the important reciprocity.
The government guidance suggests that broadly speaking ongoing cases on exit day will continue to proceed under the current rules, however of course without the guarantee that EU courts will follow the same principle.
It remains to be seen what will happen, however for international families with links to more than one EU state who are concerned that Brexit may affect the choices they make in forthcoming divorce proceedings, it is sensible to take advice from a specialist family lawyer now.
It needs to weighed up, depending on the circumstances of individual families, whether it would be better to commence proceedings now before Brexit rather than have the uncertainty of what might happen in the future whether in the long term or under any transitional arrangements.