As Brexit is fast approaching and the prospect of a ‘No Deal’ exit looms, the potential impact on divorce and family legislation remains unclear.
There has been no viable plan put forward to address the problems that will arise in family law generally once we leave the EU.
If you are married to someone who was born in the European Union, or if you live in the EU, the implications of Brexit could be substantial to your divorce and family disputes.
Divorce and the issue of jurisdiction: The race to court
One of the most essential statutes within current EU legislation with regards to divorce and family proceedings is the Brussels IIa Regulation.
This stipulates that the rules for determining jurisdiction, that is, the laws of the country that will deal with your case.
This regulation also determines the rules for enforcing judgments between the UK and EU countries, and generally provide for speed and ease in the divorce process.
The benefits of this legislation includes creating flexibility for couples going through a divorce and the choice to issue proceedings in their country of preference.
They will need to have a link with an EU country in order to have this option.
There is a general rule that the country where proceedings are issued in first will have conduct of the entire case.
This often creates a ‘race’ between divorcing couples to issue proceedings in the country they believe would provide them with a more favourable outcome.
By way of an example, a British couple who are domiciled in Italy could commence divorce proceedings in either the UK based on their nationality, or in Italy based on their country of domicile.
It is often financially favourable to one spouse to have proceedings issued in a particular country.
Children and the EU
In general terms, jurisdiction on child matters is determined based on where the child is habitually resident; the laws of the country where the child lives will apply.
The present EU laws, again specifically the Brussels IIa Regulation, deals with jurisdiction and enforceability across EU member states.
Under this Regulation, judgments made in one EU country are recognised and enofrceable in all other EU member states.
It still remains unclear how enforceability of judgments will be dealt with following Brexit.
For child abductions cases, the laws will remain unchanged and will continue to be governed by The Hague Convention 1980, even after we leave the EU.
The Law Society have published guidance and have stated that:
“The UK could potentially create a series of bilateral agreements with other countries, which would mirror the existing provisions in current EU legislation.”
Whilst this could resolve ‘the race to court’ in divorce proceedings, it could leave the UK in the same position we currently face with non-EU countries.
A decision on jurisdiction would have to be made on the basis of which country the divorcing couple is more connected with.
Should matters be dealt with in this way following Brexit, it could lead to unwanted legal costs being added to couples who wish to litigate over jurisdictional disputes.
However, with no deals being made in relation to Brexit, thousands of couples and families remain affected by this uncertainty.