Why does Brexit impact on family law?

Whether you are in favour of Brexit or not, it’s where the UK is headed in one form or other. The headlines are full of the impact this will have on business, but there are other areas that will potentially be completely changed once the UK leaves the EU – and family law is one of them.

Why will family law be affected by Brexit?

Once you take a moment to recall the very diverse population we have in the UK, with around 3.6 million people from another EU country, you start to understand that there could be an impact. Many of these people have formed relationships with UK nationals. There are children. And couples split up. With the free movement of people across the EU has come an increase in marriages between people from different member states, and the attendant complications when those relationships break down. In these circumstances, matters of finance and, perhaps more importantly, of child custody and safety arise across national borders.

How it currently works

Underpinning – or perhaps overarching – family law disputes where there is a pan-EU element (parents from different member states, perhaps) is the Brussels IIa Regulation (2201/2003). This clarifies the position in so far as it includes rules for relating to jurisdiction and enforcement of orders. Brussels IIa also includes provisions for the speedy return of children abducted from one EU country to another. The Maintenance Regulation provides certainty over issues such as jurisdiction and enforcement.  The Court of Justice of the European Union is the ultimate arbiter of any dispute arising from the interpretation of these regulations.

This system will continue until the UK leaves the EU in March 2019 – but the question remains, what will fill the space these Regulations will leave when the UK no longer belongs to the EU, particularly if the UK rejects the authority of the Court of Justice of the European Union for future disputes. It’s clear that everything that is currently being dealt with, and everything that has previously been decided, will stand. The problem will be managing disputes in future.

As Susi Gillespie, Partner in Family Law here at Thomas Mansfield Family Law explains

This Government proposals for negotiating the UK’s exit from EU reject the idea of retaining the Court of Justice of the European Union (‘CJEU’) as the ultimate appeal court.  The Government proposes that instead of the CJEU there should be committees and arbiters or voluntary reference to the CJEU for interpretation of EU law.   The concern here is that the EU member states will probably be unlikely to agree to implement a bespoke arrangement with the UK for the determination of legal disputes involving family matters where there is no ultimate court with jurisdiction over both sides that is able to determine the interpretation of EU law.

The current arrangements for existing proceedings and past decisions are clear because the current EU legislation and jurisdiction of the CJEU applies.  However, the future is not so certain for families who are likely to find themselves embroiled in cross border disputes as to children or financial matters post our leaving the EU because at this stage, we do not know the extent of the reciprocity of legislation, whether or not judgments and orders made in the UK or abroad will be recognised as they are now or whether or not the EU and the UK will all be subject to the jurisdiction of the CJEU.

The national body of family lawyers, Resolution’s position on Brexit is that ‘the family law sphere EU law continues to apply on the basis of full reciprocity and the UK should be bound by decisions of the CJEU. “

What are the alternatives?

It’s difficult to speculate given that there is so much uncertainty around Brexit at present. Stepping back for a moment, without the existing EU regime, we have the Hague Convention which covers international child abduction outside the EU. Equally, the Lugano Treaty 2007 which came into force in 2010 and covers the enforcement of civil judgments between the EU and Denmark, Iceland, Norway and Switzerland, might be an option in relation to maintenance issues. The signatories of the Lugano Treaty do not have to refer matters to the CJEU, although the national courts must “pay due account to the principles laid down by any relevant decision” of the CJEU.  However, if the UK does not stay in the single market then ratifying this Treaty may not be an option.   Another option would be to agree a specifically designed treaty between the EU and the UK to enable the UK to continue the family law legislation currently in place.

There is a chorus of voices led by Theresa May demanding that the CJEU must have no future influence over the UK. The reality is that in areas such as family law, where there will inevitably remain an international element, it makes sense to maintain the full reciprocity of EU law, with the CJEU as the ultimate authority on any issues arising.

There is clearly some way to go before concise guidance as to the consequence of the UK’s withdrawal from the EU and the impact this has on family law and related cross border disputes can be known, understood and disseminated.  We’ll be watching with interest, and will keep you up to date.

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