23 March 2018
One might be forgiven for thinking it odd if this post-referendum newsletter were to make no mention of the UK's decision to leave the European Union (EU). There have been numerous articles published since the Brexit result, which have endeavoured to identify its immediate effect and to predict its future impact in the family law arena. Having considered and debated the issue, we would merely say that pending further developments, it is, for now, business as usual.
It is correct that upon Brexit and the date of withdrawal, in the absence of any EU agreement, the UK will no longer be bound by its obligation to implement EU legislation. This of course includes numerous valuable EU regulations, directives, decisions and international treaties. We shall need to fill the legal holes and adopt new national laws.
Although the component countries of the UK (England and Wales, Scotland, Northern Ireland) have distinct matrimonial legislation (particularly as regards the divorce process and financial claims), the application of EU rules and regulations on jurisdiction and children matters are fairly uniform across the three UK jurisdictions.
In the case of divorce, for spouses with EU connections this will mean looking at jurisdictional criteria and a potential return to the more contentious 'forum conveniens' basis of jurisdiction as opposed to the 'first in time' rule under Brussels IIa. In relation to international cases involving children, it will be vitally important for the UK to introduce laws designed to replicate the useful enforcement provisions currently available across the EU for cross-border families: enforcement of custody orders, parental responsibility orders, contact orders and maintenance orders. Clarity and legal restoration must be swift in the post-Brexit era to ensure that the needs and rights of international families continue to benefit from the advances and reforms made over the past few decades.
For those planning pre- or post-nuptial agreements in contemplation of the financial consequences flowing from divorce (whether living in the UK or overseas), it would be prudent to give careful consideration to the jurisdiction and applicable law clauses, and also reassess asset values for the purposes of disclosure and proposed financial provision.
We know that the process of withdrawal of the UK from the EU will take a number of years. However, perhaps we are a little closer to understanding the potential timescale and the mechanics of withdrawal from the EU following the recent announcement by Prime Minister Theresa May at the Conservative Party Conference this October. She has said that the UK Government plans to trigger the Article 50 withdrawal process by the end of March 2017 and to introduce later in the year 2017 a 'Great Repeal Bill' (which would repeal the European Communities Act 1972). The 1972 Act currently gives effect to EU law and priority over UK law, including over Acts of Parliament. The PM has proposed that this Bill should be passed before Brexit, but should not take effect until after Brexit. The intention is for the vast majority of EU law to be transformed (by the Bill) from EU law into UK domestic law, and be effective on Brexit Day. This large mass of newly domestic legislation would then be examined to determine which elements should be retained, which disregarded and which amended.
In many ways, this is good news, because it suggests that many of the valuable EU regulations, directives and decisions referred to above, are to be retained and rebranded under UK domestic law. However, the scale of the task is immense – there will be a mountain of legal instruments all requiring Parliamentary scrutiny – and priority is likely be given to commercial and employment laws, rather than the family law ones. Another concern is that any wholesale adoption of current EU law would quickly become outdated – Brussels II Recast (the successor to Brussels IIa) is already on the horizon. It would be odd, to say the least, for the UK to implement EU Rules which would shortly become outdated. Perhaps more troubling, is the prospect of the UK implementing EU law through domestic legislation, (for example, the 'first in time rule' under Brussels IIA) only for EU countries to ignore them, since, in the absence of new treaties/agreements, EU countries would not be bound by UK laws.
At the time of going to print, the High Court has just delivered judgment that Parliament alone (and not the Government) has the power to notify Brussels of the UK's intention to leave the EU. The decision could slow the pace of UK's departure from the EU as the Government is to appeal to the Supreme Court against the decision. The hearing will take place early next month.
So it remains the case that, until the mechanics by which the exit will take place have been fully established, the immediate and direct legal implications of the vote to leave are difficult to predict. For now, the interpretation and application of EU law remains (temporarily, at least) untouched. The destiny of family law in England after Brexit seems perhaps a little clearer, but either way, little is going to change over-night.