07 November 2017

Family law and Brexit – where are we now?


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Since our last newsletter there have been some significant developments in the journey towards the UK's exit from the EU. Most notably the European Union Withdrawal Bill (2017-2019), which was introduced to the House of Commons in 13 July 2017 and (amidst accusations of diluting parliamentary democracy) passed the second reading stage by 326 votes to 290 on 11 September. The date for the next stage of Parliamentary debate is yet to be announced.

The Government Department for Exiting the EU has published information about the Bill which is designed to 'ensure that the UK exits the EU with maximum certainty, continuity and control'. If it is of interest, you can access the documentation through this link: here

The Bill repeals the European Communities Act 1972, but also brings all EU laws onto the UK Statute books. This means that laws and Regulations made over the past 40 years, while the UK was a member of the EU, will continue to apply after Brexit. If those laws did not apply it would leave a huge gap in our law (according to the EU's legal database, there are currently over 12,000 EU regulations in force).

As highlighted in our last newsletter the 2 pivotal EU regulations for family law are:

1. Brussels IIa (which regulates divorce jurisdiction and parental responsibility regarding children); and
2. the EU Maintenance Regulation (which regulates the jurisdiction for and enforcement of maintenance agreements and court decisions between the UK and the EU).

In order that those regulations are workable, there must be reciprocity. It is not sufficient for the law to be valid in the UK, it must be recognized and applied by all the EU Member States to have any useful effect. Therefore, although the European Union Withdrawal Bill will ensure that the Regulations are brought into UK law, and although the Government has expressed hope that EU Member States will reciprocate recognition, the UK Bill cannot of course bind other members of the European Union.

For example, whether or not the English court has jurisdiction for a divorce case is currently determined in accordance with EU regulation Brussels IIa. If the Regulations are adopted wholesale by the UK the current jurisdictional criteria (habitual maintenance and domicile) will remain the same following Brexit. However, the key difference will be in the (not unusual) circumstance where 2 or more EU Member States have jurisdiction to hear the divorce. Prior to Brexit the question of which court would be able to proceed with the divorce would depend on which court issued the petition first. Post Brexit, however, if one spouse issues a divorce petition in another EU member state, that jurisdiction will not be bound by the fact that divorce proceedings commenced first in England as the latter will not then be a Member State. Whereas pre-Brexit the court in the second country would have to stay proceedings pending an English court's determination as to whether it has jurisdiction, post Brexit that country can proceed with the divorce regardless, if it so chooses. The Withdrawal Bill does not address this problem and the potential for parallel proceedings in two states would be a significant risk.

This was just one of the many thorny issues debated by over 160 family lawyers (from England and Wales, Scotland and Ireland and mainland Europe) at a conference in June which I co-chaired with William Longrigg entitled: 'Does Brexit really mean Brexit for family lawyers.' The Conference provided an excellent opportunity to discuss the implications of Brexit from both a domestic and an international perspective, and we intend to arrange a follow up conference in the next 18 months.

We used the forum to discuss the extent to which existing instruments as well as some old UK bilateral treaties will still be applicable between the UK and member states of the EU. In particular, we considered the extent to which various Hague Conventions would remain in force after a 'hard Brexit'. The general consensus was that the 1996 and 2007 Hague Conventions would be significant, but would not entirely fill the huge legislative void that may well result once the UK has left the EU in cases involving the international recovery of maintenance and the recognition and enforcement of orders relating to children and parental responsibility.

Since that forum the government has published 2 policy papers: 'Providing a cross-border civil judicial cooperation framework – a future partnership paper'; and 'Enforcement a dispute resolution – a future partnership paper.' The government intends to negotiate an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis.

It was reassuring to read the Government's intention to continue to be a leading member in the Hague Conference and to participate in those Hague Conventions to which the UK is already a party and to continue to participate in the Lugano Convention. However, with regard to the Lugano Convention and the Hague Convention on Maintenance, the UK's current membership is dependent on being in the EU and so in order to be a member post-Brexit they will need to negotiate their way in, which may prove challenging.

Another of the issues debated at the forum has also now been clarified by the government: decisions of the Court of Justice of the European Union ('CJEU') made before Brexit will be used to interpret retained EU law. However, decisions of the CJEU made after exit day will not be binding on UK courts and tribunals, and domestic courts and tribunals will no longer be able to refer cases to the CJEU after exit day.

The UK has also made it clear in the policy paper that it does not believe the CJEU should be the arbiter of disputes in relation to any treaties it agrees with the EU and has put forward several alternative illustrations as to how such disputes can be resolved given the importance of effective and efficient resolution. The UK wants to ensure that the Withdrawal Agreement respects the autonomy and integrity of both legal orders.

The implications of the UK's departure from the EU remain unclear and in relation to cross jurisdictional disputes are entirely dependent on what the UK is able to negotiate in terms of reciprocity.

We will continue to keep abreast of the developments and the impact that they will have for clients and contacts. One area to watch is in relation to pre-nuptial agreements. It appears from the EU Commission and UK government's respective position papers that they currently concur that if a couple reached an agreement, pre-Brexit, as to which court should determine their maintenance claims on divorce, they could be bound by that agreement post-Brexit.

For further articles in this series please see below.

This article forms part of our Autumn 2017 family newsletter, alongside the other articles found in the Insight section below.

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