The impact that Brexit will have on family law is no doubt low down on the government’s to-do list (if one of these has actually been created).
But with many families including people who have roots in different European countries, the decisions that are made with regards to how family law will work after Brexit will surely have far-reaching consequences.
A range of EU regulations currently deal with various different aspects of family law, such as divorce, financial settlements and arrangements for children.
The main EU regulations with regards to family law are procedural rather than substantive. They are designed to ensure consistency and keep costs and lengthy legal arguments to a minimum.
If, for example, different jurisdictions could potentially be involved in a divorce, these regulations are there to help decide where the case should be heard and adjudicated.
Regulations are also there to help ensure that once a judge makes a decision on a particular case, it can be recognised and enforced across the EU. This means that at the moment, a divorce which is granted in England and Wales is automatically recognised throughout the EU (except for Denmark).
The European Court of Justice is there to make decisions when questions come up with regards to how the regulations are to be interpreted.
The truth is, that even 24 months after the referendum result, we are really no clearer as to what a post-Brexit Britain will look like. While the government spends its time fighting with itself, what is actually important (negotiating with the EU to discuss what our future will look like) seems to have been all but forgotten.
Put simply, there are still so many unanswered questions, that to build up a clear picture of how many areas, including family law, will work after Brexit, seems almost impossible.
Will we simply replicate EU regulations regarding family law into our own law and keep the reciprocal agreement that we have now, but remain subject to the European Court of Justice? Will we begin the (very lengthy) process of making new arrangements with the EU? Or will we settle somewhere in-between, where we replicate the regulations into our own law but are not subject to the European Court of Justice? However, in this scenario, we may end up having to come to an arrangement where other countries would not have to enforce our courts’ decisions but we would have to enforce theirs.
The government has previously indicated that the UK will be leaving the EU court’s jurisdiction. How this will work with regards to family law remains to be seen.
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