With a no-deal situation becoming an ever-increasing prospect, there is a feeling of uncertainty around what couples and families could face if they are involved in legal disputes in a post-Brexit climate.
In the UK, families have enjoyed protection under domestic laws such as the Family Law Act 1986, which contains provisions relating to the legal jurisdiction of children issues. British families have also benefited from international laws such as the 1996 Hague Convention which is based upon a child’s habitual residence. As a result, a British parent can ask the English courts to order the return of their child, provided that their child is habitually resident in England and Wales. The UK legislation will, therefore, apply regarding all matters concerning that child. All judgements relating to that child will also be recognised and enforceable in all other member states.
Following Brexit, it is unclear how the issues of jurisdiction, recognition and enforceability will be solved. If no agreement is reached, leaving the EU could potentially make it difficult for British parents to bring their child back to Britain, especially where children live within European countries that are not parties to the Conventions. When it comes to jurisdiction, the situation is likely to be the same as in international cases where the Hague Conventions don’t currently apply. Under the Family Law Act 1986, the English courts can order the return of a child who is habitually resident or present in England and Wales. The country to which the child has been removed to has discretion as to whether or not to recognise and enforce the Order of the British Court.
With divorce, the general EU rule is that the jurisdiction in which divorce proceedings are allowed to continue is the one in which they are lodged first – even by a minute. This rule does not apply to Denmark for various reasons. When the UK leaves, will the EU reciprocate this rule? Or does this leave the EU and UK fighting over who has jurisdiction in divorce proceedings?
Unless an agreement is reached, there is the possibility that the UK will treat all European Countries the same as non-European countries. If this is the case, the English courts will determine the jurisdiction of proceedings based on a number of factors centring around which jurisdiction is most appropriate to deal with the matter, including how closely the family is related to the country and where the assets are. This may lead to many couples incurring further legal costs in litigation over determining the jurisdiction of their divorce proceedings. This is likely to have a disproportionate effect the English courts – particularly those in London – because they are seen as offering a more generous approach to the financially weaker spouse due to the broader discretion Judges in England and Wales have compared to their Continental counterparts.
With March 2019 around the corner, there is a pressing need for a definitive solution. Families in the UK need to know where they stand legally when facing legal proceedings in a post-Brexit world. The hope is that an agreement will be made that definitively clarifies matters, ideally prior to the UK leaving the EU. However, clarity on family law – which is small beer in comparison to pressing economic concerns politicians are currently wrangling with – may come later, leaving the UK an island nation cut off from the EU and all at sea for family law.