Brexit and family law – the painful divorce?


Author: Teresa Cullen


Since the referendum on the UK’s membership of the European Union, commentators have regularly compared our departure from Europe to a couple divorcing. It is self-evident that some of the issues that will need to be addressed are similar; finances have to be sorted out, assets and liabilities must be divided, the “family” future must be determined and there is the thorny question of who can/will live where.

Within the UK we have three distinct jurisdictions: England and Wales, Scotland and Northern Ireland. Each has its own legal principles and jurisprudence in the field of family law (albeit with some commonality). Put this against the background of approximately 3 million EU citizens living in the UK and approximately 1 million British citizens living in other EU member states (never mind those British citizens who have married or who are in a cohabiting relationship with a non-Brit) and the issues to be discussed become much trickier.

It should be borne in mind that English Courts will only apply substantive principles of English law when dealing with family issues. However, where EU family law provisions do have a material effect is very often in connection with the procedure to be followed. These are not minor issues to be easily dismissed, but have a wide-ranging impact on family law in the UK.

The most obvious example of how EU law impinges upon domestic family cases is the issue of jurisdiction in matters of divorce and judicial separation. This issue is regulated by Article 3 of Brussels II bis: EU laws are automatically adopted by member states. In cases without an international element, jurisdiction is based on the habitual residence of the spouses. When considering a married couple where one party is British and one a citizen of another EU state, it is the EU regulations which set out the basis on which jurisdiction is determined. Tactically there may often be occasions where it might be prudent to have a certain jurisdiction activated or avoided. At present EU regulations contain mechanisms which ensure that only one EU jurisdiction deals with the matter, in order to avoid having multiple proceedings running parallel in different countries. Similarly, EU regulations provide for easier enforcement of English Court Orders.

It is reported that there are approximately 1,800 cases of child abduction within the EU every year. An important facet of the EU regulations is the support for extra cooperation when dealing with issues concerning the return of abducted children. Whilst with non-EU countries we have the benefit of The Hague Convention (assuming the territory concerned is a party), the speed and efficiency of enforcement falls short of that which exists under the reciprocity arrangements pursuant to EU regulations.

The EU (Withdrawal) Bill intends to repeal the European Communities Act 1972 whilst, at the same time, replicating the EU regulations into UK domestic law. Whilst the aim may well be to preserve the status quo, in practice this approach has the obvious disadvantage of being unable to guarantee reciprocal arrangements with other EU member states.

The current focus of negotiations appears to be on trade and the size of the UK’s bill for exiting the EU. Whilst family law has, perhaps understandably, taken a back seat, this approach will have significant ramifications for the practice of family law across jurisdictions. EU family law provisions require reciprocity and work largely on a mutually applicable basis. Unless some sort of replacement framework is agreed, the benefits of the reciprocal arrangements will be lost.

Post-Brexit, even with the Withdrawal Bill enacted, what is to happen? Will the issue of jurisdiction for divorce return to the pre-EU days of having arguments about forum conveniens to determine which Court is best placed to decide the divorce case? Without reciprocity, proceedings could easily be running in parallel in the UK and an EU member state, with the potential for contrary and opposing judgments. The UK may still be obliged to continue to apply EU family law (albeit in its new guise) and, unilaterally, recognise and enforce decisions of other EU member states, but other EU member states may have no requirement to recognise and enforce the decisions of UK Courts. It is unlikely that the same level of cooperation between authorities in relation to cases of child abduction will exist without the reciprocal framework that currently exists.

It is the lack of reciprocity and the overall uncertainty that is likely to lead to UK citizens being in an uncertain and, potentially, vulnerable position. For lawyers, and for clients, the obvious uncertainties that will inevitably exist post-Brexit are likely to result in an increase in costs and potential delay in achieving a solution. It is possible that lengthy and expensive litigation will result whilst Courts decide fine points of legal interpretation. The issues addressed above are likely to add an extra layer of complication, delay, cost and worry to those already facing one of the more difficult decisions in life. Much like in a divorce, the terms of the UK’s separation from the European Union are up for discussion, and a successful separation will depend on all parties taking a sensible and constructive approach. So watch this space!

 Teresa Cullen, Partner, Fladgate LLP (tcullen@fladgate.com)

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