Barder: Exceptional and rare
The EU Referendum on June 23 2016 has been billed by the Prime Minister as “one of the biggest decisions this country will face in our lifetimes”. There is a huge amount of speculation and scaremongering about the effects of the UK either leaving or staying in the EU from an economic and legal perspective.
A recent headline in the Evening Standard suggests that a Brexit ‘will fuel rise in bitter custody battles like Madonna v Ritchie’ - so what might happen to family law proceedings if the UK should choose to leave the EU? There would undeniably be family law implications and considerations for international families from many perspectives including immigration, tax, international divorce law and cross border children disputes.
How does being in the EU impact English family law?
The UK is a party to a number of European Regulations which have a significant impact on the practice of family law. While there has been no change to our substantive divorce and family law, the European Regulations affect, in particular, jurisdiction in family law disputes and the enforcement of decisions. The Regulations, in overview, deal with the following family law issues:
The most well-known family law related Regulation, known as “Brussels II revised” deals with conflicts of jurisdiction and causes the “Race to Court” that family lawyers often talk about. The effect of the Regulation is that, assuming the jurisdiction requirement is met, when one court in Europe is seised for divorce, that court will have jurisdiction to deal with the dispute even if another European country is more closely connected to the marriage. By way of example, if a Spanish couple have been living in England for their entire marriage, they could issue proceedings in either Spain (on the basis of their joint nationality) or in England (on the basis of their residence). The party to issue proceedings first in time will secure jurisdiction in the courts in the country of their choice. It is often financially beneficial to one spouse to issue in one country rather than another, in particular vis a vis England where the courts have a relatively generous approach to the financially weaker spouse. Many continental jurisdictions operate matrimonial property regimes, which dictate what happens to assets on divorce for instance. These do not feature in English divorce law and our system is much more discretionary than other European countries. Our Judges also have wide powers to order financial disclosure in divorce proceedings, unlike many other European systems.
What could happen if we leave the EU?
The “first to issue” rule set out above gives certainty about divorce jurisdiction but is also hugely inflexible and can lead to injustice for some families. For example, a German couple who have lived and worked in London for their entire marriage, were married in London, their children were born here and go to school here, could end up in German divorce proceedings even though they no longer have any links to that country (if one spouse chose to issue in Germany). Worse still, any proceedings relating to the children would be heard in England, where the children reside, so the family could have the expense of proceedings on-going in two very different court systems.
A “leave” vote in the referendum could therefore mean the UK coming out of the strict jurisdiction rules in the Regulations. It would give us the opportunity to rethink jurisdiction between European counties which could be positive; perhaps a hierarchical system rather than the “first to issue” rule would work better for international families. In the absence of any Regulations or Conventions, we may find ourselves in the same position as we are with non-European countries where a decision on jurisdiction as between two competing countries is made on the basis of “forum conveniens” arguments, and the ability to decline jurisdiction if there is a more appropriate court where the case should be heard. The court would consider how closely connected the family is to this country and where the assets are.
In October 2015, The Law Society published an overview on the impact of an exit from Europe on a number of areas of law, including family. The report says “The UK could potentially create a series of bilateral agreements with other countries, which would mirror the existing provisions in current EU legislation.” Negotiating and finalising new bilateral agreements will take significant time and effort and I wonder whether it would be a priority for our Government? Sadly, family law is rarely a priority on the legislative agenda (matrimonial law is still based on an Act of Parliament as far back as 1973) and, if we leave the EU, there will be so many other areas which would need to be addressed and regularised ahead of family law considerations. In the event of a Brexit, the inevitable outcome will be uncertainty for many international families and an increase in litigation over jurisdiction. My conclusion is that no-one really knows what will happen if we leave the EU, but the practice of international family lawyers will inevitably change and the impact for EU nationals living in the UK will be far reaching.
Over the coming months, we will be blogging again on this topic and providing clarity on developments, so please contact a member of our family team if you would like to know more or if you wish to receive notification of further blogs on this subject.
You may also wish to subscribe to our EU Referendum blog, covering a range of wider legal issues.
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