If the UK leaves the EU on 29 March 2019 and there is “no deal”, i.e. no withdrawal agreement, EU law will immediately cease to apply at 11pm that evening. Whilst much has been heard from the media about the effect of “no deal” on likely shortages of food supplies, and medicines as the urgent consequences of a “no deal” situation, very little has been heard from the mainstream media about the effect of “no deal” on families, causing them to fall back on arrangements embodied in individual Treaties.
Much of the law regulating family arrangements, Children Orders, Financial Orders, and indeed Divorces themselves are contained within EU law. If that ceases to apply it is important to consider, for certain clients, that urgent steps may need to be taken, or at least considered prior to the exit day. Latest figures show that there are nearly 4 million EU citizens living in the UK and approximately 1.3million UK citizens living elsewhere in the EU.
At the moment in a situation where Divorce or similar proceedings could be initiated in England and Wales or in another EU member state, the choice of forum is decided on where the proceedings are first lodged – the first past the post rule. If we leave the EU with “no deal” this automatically comes to an end and cases involving an EU member state and the arguments in relation to the choice of forum will be determined on the basis of “forum non conveniens”, i.e. the test of closest connection. This is the same test that we currently have with non-EU countries where a forum dispute exists, opening up yet another limb of legal argument within the Divorce Proceedings. It may be necessary for clients where forum may be an issue to consider whether or not an urgent application for a Divorce needs to be made.
At present Divorces dealt with in the UK are recognised throughout the EU under EU law. After exit day, this will not apply. Approximately 50% of the EU member states are members of the 1970 Hague Convention and it is thought that they will, therefore, continue to recognise a Divorce in England and Wales. Fifteen states are not parties. Clients, therefore, need to consider whether or not steps need to be taken to expedite the Decree Nisi and/or Decree Absolute, the final stage in any Divorce, in order to ensure that the Divorce is through before exit day, and capable of recognition. It is thought that there may be particular issues with regard to recognition by a few EU member states in respect of Divorces in relation to same sex marriages.
Issues may also arise in connection with enforcement of Financial Orders although work is in hand to limit the difficulties.
The lack of application of EU law after exit day may also affect child disputes. Any clients with issues in relation to children that are cross-border and involve in EU territories are advised to seek individual guidance on an urgent basis. It is understood that the government is attempting to join the dots to ensure that some provision is in place, in part to recognise the reciprocity previously enjoyed between EU member states. The position, as with much to do with Brexit, is unclear. What cannot be under estimated is the effect and consequent extra costs, both financial and emotional, of such uncertainty on clients at a time where life is often already complicated enough.