The impact of Brexit on family law has been hotly debated both inside and outside of the profession, with many worried of the effect it could have on families across the EU and beyond.
As specialist family solicitors, a large number of our clients are high net worth individuals with international assets and investments. Indeed, many of our clients have come to us specifically for advice on how Britain’s divorce from the EU could ultimately impact upon their divorce.
The reality is that no-one knows exactly what a post-Brexit Britain will look like – anyone who says otherwise is lying. There are too many complexities and far too many ‘ifs’ and ‘buts’, for anyone to have a completely accurate picture of what is to come. Arguably, never before in many of our lifetimes has Britain’s future looked so uncertain.
The same can be said with regards to family law. There are a variety of EU-wide rules that govern various different aspects of family separation as a whole, including divorce, financial settlements and orders specifying the arrangements for children upon the separation of a couple.
A recent report by the Justice Committee entitled “Implications for Brexit for the Justice system”, recommended that the Government must address four priorities for the justice system in negotiating the UK’s new relationship with the EU, one of which was that it should “retain efficient mechanisms to resolve family law cases involving EU Member States and the UK”.
One EU regulation, known as Brussels II and Brussels IIa, is said to “form the heart” of cross-boarder family law in the EU. It deals with issues such as divorce and legal separation, as well as children’s residence and contact arrangement orders and child abduction issues.
The other main EU regulation in the family law sphere is the so-called Maintenance Regulation. This regulation deals with jurisdiction for inter-country disputes regarding family maintenance payments.
In its report, the Justice Committee described both of these regulations as “procedural rather than substantive”. In essence, this means that these regulations are there to help resolve where a cross-boarder case should be “heard and adjudicated” on (i.e. which country/countries have jurisdiction), rather than there to deal with issues such as grounds for divorce.
In addition, these regulations help to ensure that once a judge in an EU member state, which has jurisdiction, has made a decision on a particular case, this can be “recognised and enforced throughout the EU” – i.e. they enable judgements on various family issues to be mutually recognised by other EU member states.
Some argue that without these EU regulations, it may be up to the English and Welsh courts themselves to decide whether or not they are the right place for the divorce to go through in. Even then, it could be the case that an English Court Order may not be recognised by another country in the EU.
As more and more people move around and live in different places, an increasing number of families have an international element that would need to be dealt with if they divorce. Late last year, a number of experts were called to give evidence at the Justice Committee’s inquiry regarding the implications of Brexit for the Justice system (which led to their report published earlier this year).
At the time, Family Law Week reported on what had been said by Daniel Eames, the person who had been asked to give evidence on behalf of national organisation of family lawyers, Resolution. He reportedly told the Committee that Brexit was going to have a “huge effect” on family law and pointed out that in 2015, 27.5% of children born in England and Wales had a foreign mother.
He went on to say that: “Theresa May’s proposed Great Repeal Bill doesn’t work for family law as it requires reciprocity as other EU states won’t give precedence to our proceedings if they are issued first in time and won’t recognise our judgments. At the same time we will be stuck with some of the limitations of EU law without any of the benefits.
“The government needs to negotiate new agreements with the EU. If it does not then Brexit will have a huge effect on international families living in UK, not to mention the already under-resourced family courts and a whole generation of family lawyers who have only ever known EU regulations.”
With regards to what would happen if Brussels II no longer applied and the English Court would have to decide whether it, or another EU jurisdiction was the “most appropriate forum”, he reportedly said it would be “expensive and complex for the litigant” and that there could “be cases where there are conflicting decisions”.
In its report, the Justice Committee quoted Resolution’s written evidence:
“As more relationships are formed where one or both parties are from other EU states, the potential for lawyers to be required to advise, and the family courts across the UK to rule, on family law cases with an EU dimension has inevitably increased. Because of the extent to which EU law has permeated family law and practice across the EU, every divorce petition is founded on the jurisdictional requirements of the Brussels IIa Regulation.”
The report also mentioned the controversy surrounding what has been called a ‘petition race’ or ‘jurisdiction race’. Under EU regulations, if two countries have jurisdiction, it is where the divorce petition is issued first, that is normally the country where the divorce goes ahead.
This has been said to result in the more “legally astute spouse” racing to divorce in the jurisdiction that may see a better financial settlement for them. Some argue that this has resulted in marriages, that could have been saved, ultimately filing for divorce and not trying to reconcile. Others, however, say that these regulations have meant that expensive and time-consuming litigation running at the same time in two EU member states, no longer happens.
The Justice Committee’s report described the Maintenance Regulation as “similarly contentious”. This regulation, together with various other EU rules, has essentially simplified how maintenance orders can be enforced across the EU . The report said, for example, that: “International Family Law Group LLP argued that it enforces inappropriate prenuptial agreements”.
The report went on to conclude that: “The Regulation lacks a natural replacement. The 2007 Hague Convention is a powered-down version, with orders only enforceable in certain circumstances…This would support remaining party to the Maintenance Regulation, if possible, at least in the short-to-medium term.”
Indeed, many argue that there are significant advantages to these regulations, as they help to enforce a court’s judgements throughout the EU.
Child abduction was also mentioned in the Justice Committee’s report, including evidence from Resolution stating that information exchanged “can be vital evidence in proceedings, including in child abduction proceedings or cases involving a child at risk of harm requiring protective measures”.
In August this year, the Huffington Post reported that children of divorcing EU parents would be “caught in legal turmoil” if there was ‘no deal’ on Brexit.
In the article, the Huffington Post said that if an EU partner took their child back to their country without permission, a British parent would be in a “substantially weaker legal position” if the EU didn’t agree to the UK’s “demands to replicate existing rules”, something which the Huffington Post pointed out was not currently “enjoyed by any other country”.
Regarding the Government, Labour MP Wes Streeting reportedly said: “It is they, not the EU, who have said repeatedly that no deal is better than a bad deal. And yet now they admit that a Brexit with no deal on judicial cooperation could put British children in legal limbo.
“Ministers need to drop their absurd rhetoric about no deal, and focus on negotiating an agreement with the EU that guarantees British families and children will not lose rights and protections as a result of Brexit.”
As well as child abduction, there are also EU rules which govern other child-related arrangements and disputes. Just as with many other family law issues, how these will be dealt with post-Brexit still remains to be seen.
On the issue of family law, the Justice Committee concluded that Brussels II and the Maintenance Regulations “are improvements over their default alternatives”.
It said that although they were not without fault (particularly the “races to issue” resulting from Brussels II’s divorce provisions), the “mutual recognition and enforcement of judgments in family cases is of demonstrable value in resolving cross-border instances of child abduction and non-payment of maintenance.”
It concluded: “We recommend that the Government should seek to maintain the closest possible cooperation with the EU on family justice matters, and in particular to retain a system for mutual recognition and enforcement of judgments.”
In the report’s summary, the Justice Committee said that it believed that “a role for the Court of Justice of the European Union in respect of these essentially procedural regulations is a price worth paying to maintain effective cross-border tools of justice.”
Outside of the EU, there are various other international agreements that enable UK courts to enforce non-EU court orders regarding, for example, maintenance – and vice versa. These agreements could be the type of agreements we may see between the UK and other EU countries after Brexit.
Informally known as the “Great Repeal Bill”, the EU Withdrawal Bill is essentially there to repeal the 1972 European Communities Act and copy all existing EU legislation across into domestic UK law.
The bill has been described as “one of the largest legislative projects ever undertaken in the UK” and a “unique challenge”. The government’s White Paper on the bill says that “simply incorporating EU law into UK law is not enough” and that in some instances, once Britain has left the EU, the “legislation will no longer work”. Some think that the issue of reciprocity in family law matters will “require more thought”.
A report by the European Union Committee of the House of Lords entitled “Brexit: justice for families, individuals and businesses?” said that it had “significant concerns over the impact of the loss of the Brussels IIa and Maintenance Regulations post-Brexit, if no alternative arrangements are put in place.
“We are particularly concerned by David Williams QC’s evidence on the loss of the provisions dealing with international child abduction. To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm.”
As we mentioned at the beginning of this article, Brexit is still full of many uncertainties and when it comes to how Brexit will affect divorce and all of the legal issues that go with it, it is no different. Parents may also need seek advice with regards to their English court order regarding child arrangements, if their child is living with the other parent in an EU member state.
These are just some of the issues we may face after Brexit, depending on the arrangements Britain makes with the EU before its departure. Needless to say, Brexit could cause a wide range of issues for those British expats living in the EU, as well as families living in the UK.
At the moment, there is still a lot of uncertainty ahead and this looks set to continue for a long while yet. No-one is able to predict what the future holds and change itself seems unlikely to be imminent, especially as there is now talk of a transition period.
For those concerned about how Brexit may affect their divorce and any financial and children arrangements already in place or about to be put in place, it is highly recommended that you speak to a solicitor experienced in divorces with international elements about your particular circumstances.
Our expert divorce solicitors can help you with a range of legal issues relating to child abduction, including:
For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.
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