There is considerable uncertainty surrounding a number of legal issues in the UK at the moment following the country’s vote to leave the EU, with both sides of the negotiating table keeping their cards very close to their chest.
Whilst the majority of people are focused on the economic aspects of the deal, one point that has so far been neglected by many Brexit pundits is Family Law.
Like a large amount of legislation, many of the rules that the family law courts abide by have links to the overarching legislation issued by the European Union and interpretations laid down by the Court of Justice of the European Union (CJEU).
Family law is also connected to the Union in a number of ways that will undoubtedly be affected by the UK’s departure, such as access to the courts and reciprocal recognition of enforcements and judgments in other member states.
One of the most significant forms of legislation guiding family law in EU member states is Brussels IIa or Brussels II bis.
This is the European Union’s regulation on conflict of law issues in family law between member states, in particular those related to divorce, child custody and international child abduction.
Introduced in March 2005, it lays out the rules in relation to jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children.
As a member of the EU, the UK courts are currently guided by these rules and the CJEU’s interpretations of them, but the big question is what happens when the UK leaves the Union?
As no other nation has attempted this monumental task before, it is unclear what the new relationship between Europe and the UK may be post-Brexit.
Last on the list?
The EU and the UK are only now just beginning the negotiation process and the enormity of the task is already clear.
It is believed that there may be around 400 legislative pieces relating to family law that may need to be considered on top of the thousands of other rules and regulations relating to trade and commerce.
This has led many to question what priority will be placed on this area of legislation and whether proper consideration will be given to all aspects of family law before separation occurs.
Currently families can rely on the last bastion that is the CJEU to provide a single interpretation of the law distinct from the differing interpretations of each of the 28 member states.
This process allows for disputes over the law to be settled in a relatively straightforward manner without additional interpretation, but once we leave, the new system in the UK whatever that may be, may no longer have this to rely on.
If some form of agreement isn’t reached for access to the UK courts, then dealing with matters across member states is likely to get more complicated.
One alternative is the Lugano Convention, which currently applies between the EU and Norway, Switzerland and Iceland, who while not members, benefit from the EU’s single market.
This relies upon the ‘persuasive’ arguments of the CJEU’s judgments to guide these nations’ interpretation of the law.
The other option, although less likely, is reliance on the jurisprudence of the European Court of Human rights to decide family matters, but this would require significant changes that might not be politically acceptable for other member states.
However, if no alternative is found then the 27 remaining member states will continue to follow the doctrines of exclusive external compliance and universal application.
This may mean that they are prohibited from entering into individual agreements with the UK in areas where the EU has already legislated, the result of which may be that bilateral agreements on the law with individual states will not be allowed to take place and will instead need to be handled with the EU acting as a single body.
Forum Shopping’s Future
The UK is a hot spot for ‘forum shopping’, where parties choose their legal jurisdiction by preference, thanks to its interpretation of matrimonial and child custody matters, with many people choosing the UK courts to handle their legal matters.
The current arrangements for divorce, covered within Article 3.1 under Brussels IIa, assist with this by helping to establish where jurisdiction lies within the EU on these matters.
This concept relies on a qualitative test i.e. where the person’s interests are centred, which differs from the more quantitative international rules, which are based upon the number of days a person is resident in a country.
This qualitative test has opened up the UK as a divorce jurisdiction for far more people, who while not resident long-term in the UK, i.e. 90 days or more a year, have their interests centred in the UK. However, it is important to note that it can also sometimes work against some litigants based upon what the courts see as their common domicile.
In a post-Brexit Britain, it is therefore conceivable that those in the EU’s other member states hoping to take advantage of the UK’s enviable family court system will find themselves facing the standard quantitative test, which may restrict their access.
The EU has also assisted with child matters. Prior to the introduction of Brussels IIa the courts in the UK determined habitual residence based upon the parent’s intentions.
However, its introduction saw the introduction of a new test under Article 8 which instead focuses on the degree of integration a child has in a social and family environment, which is more tied to the needs of the child rather than the parent.
A move back to the older system could adversely affect children and parents, while also causing conflict with other jurisdictions.
So let’s jump ahead several years and we are now at the point of Brexit, we have agreed the final negotiations and signed on the dotted line; what happens to the law in the areas we have discussed?
In January 2017 Theresa May said that as the UK repealed the European Communities Act the Government would convert the body of EU law into British law to ensure “maximum security” when we leave the Union.
She said it will then be for the Government and Parliament to decide after this date which rules should be repealed, amended or replaced.
This may leave the law in limbo and create uncertainty over the future of the current family arrangements and more importantly the relationship between jurisdictions.
So once we are out, will the orders made in the UK still carry the same clout or will they just be ignored by other member states?
Well currently thanks to Brussels IIa, Brussels 1R and the Maintenance Regulation, all orders made in any member state are automatically recognised by all other member states.
This makes the enforcement of orders far more straightforward, as the other jurisdictions treat the order as if it was made within their own courts and can therefore, in most cases, be enforced in the same way.
Outside of these agreements countries must rely on each nation’s interpretations of the law and must establish a link such as nationality, residence or domicile. In the UK this is established under Section 46 of the Family Law Act 1986, which requires a connecting factor, as listed above, within the country granting the divorce. This and similar rules rely on each nation’s interpretation creating an element of flexibility that is not welcomed by claimants.
So what will happen to family law in a post-Brexit world? Well despite the pledges of the Government that it will be business as usual, not enough is yet known about the long-term future of the UK’s agreements with the EU and there are concerns that some of the positive elements may be lost in order to remove some of the less productive elements of the current EU legislation.
Whatever the reality is, the UK as one of the centres of international family law is likely to continue to be a popular jurisdiction thanks to its favourable rules on maintenance and the splitting of matrimonial assets, but solicitors and litigants should take heed of any changes just around the corner.
By Manisha Hurchurn, Mackrell Turner Garrett
About Mackrell Turner Garrett
Mackrell Turner Garrett is a full service law firm with offices in Central London and Surrey. The firm was founded by John Mackrell in the City of London in 1845 and maintains its strong commercial background.