Whilst the country is still in shock from the EU referendum result, we take a look at how Brexit might impact on family law in England and Wales.
Family law is not unique in the sense that a move away from the EU will involve a certain amount of ‘detangling’ from EU legislation, the same being true for a large proportion of our other laws. As we know, this is likely to be a long and drawn-out process. However, whilst the long-term impacts of Brexit may not be felt for a considerable time to come, there will almost certainly be more immediate consequences of the upcoming ‘divorce’ from the EU.
Speaking after the referendum announcement Nigel Shepherd, chair of the family law organisation Resolution said the result has sparked “a period of great uncertainty” and highlighted that the uncertainty came from the fact that family law here is intrinsically linked to that in other jurisdictions.
Brussels IIa is a key piece of EU legislation that has been in force since 2001 and provides uniformity and certainty in the recognition of divorce proceedings across the various jurisdictions of the EU. In the absence of it, the Family Court here will need to adopt new ways of addressing some important areas that crop up time and time again in matrimonial proceedings.
For example, the first and most important issue when issuing divorce proceedings is to consider whether the Court you are applying to actually has jurisdiction to accept those proceedings. In the case of a multinational couple deciding which Court hears the divorce petition is crucial as different jurisdictions often decide financial cases in differing ways. For example, sometimes the Court here can be seen as more favourable to one party to the divorcing couple, so there is often a ‘race’ to issue the petition first, in the country that will be most favourable to that spouse. Which country then has jurisdiction is governed by EU legislation.
In the absence of this important EU legislation, there may be more uncertainty as to which country has jurisdiction to hear the case. It has been suggested that the Courts here will need to fill the vacuum with something very similar to Brussels II in order to address this.
In addition, Brussels IIa allows an order that has been made in England to be recognised, and therefore enforceable, in other jurisdictions. Orders which are routinely affected by EU legislation, such as child arrangement orders and matrimonial orders may need to be captured by new legislation so that they remain enforceable across borders.
Lastly, maintenance agreements made between multinational divorcing couples are governed by Brussels IIa, again allowing for a more seamless approach to enforceability across differing jurisdictions. The enforceability of these agreements will need to be considered in light of any new legislation and will have most impact where matrimonial property is owned in different countries.
Whilst family law here is not an immediately obvious casualty to Brexit, there will be a period of uncertainty leading up to a formal Brexit, certainly whilst negotiations with the EU are underway. As we are aware, this may take a number of years. In an already uncertain time for divorcing couples, more anxieties and fears are not helpful. In the wider context of the possible impact of Brexit, suggestions that there may be increased interest rates, a fall in pension values and an uncertain property market will surely add another layer of concern in an already stressful time.
However, some commentators have suggested that whilst a break from the EU will provide a period of uncertainty as we part with established EU legislation, it may be an opportunity to embrace that change and to draft domestic legislation that can go one step better than the existing EU laws.
Whilst outcomes cannot be known at this stage, couples who are experiencing difficulties are advised to seek guidance as soon as possible in order to try and understand how the complexities of Brexit may impact on both their personal and financial circumstances.