The impact of Brexit on Family Law

Following the recent referendum, the British public voted by a small majority to leave the European Union. There has been a great deal of speculation and uncertainty as to what this means next. As matters stand, it is still too early to tell what the impact will be on family law.

The UK is a party to a number of European Regulations which have a significant impact on the practice of family law. These regulations affect the enforcement of decisions, and there are rules for recognising orders between EU countries. Over the next two years, before the exit, there will need to be urgent reconsideration of what will happen when these EU laws no longer apply to Britain.

In relation to jurisdiction (i.e which court in Europe has jurisdiction to hear the divorce dispute), there are a number of EU rules relating to where divorce proceedings should be commenced in situations where there is a choice of countries. ‘Brussells II revised’ is the EU legislation that deals with conflicts of jurisdiction. Depending on where the divorce takes place the financial outcome can be very different and therefore, where this applies, there is typically an urgent race to issue proceedings as the first court involved usually seizes jurisdiction and so decides the financial outcome. It is yet to be seen whether the referendum will mean that these jurisdiction rules no longer apply.

In relation to the arrangements for the children, the exit may mean that provisions are lost such as the ability to transfer a case to another country within the EU if that is in the child’s best interests. Further, EU legislation ‘Brussels II bis’ covers jurisdictional issues in relation to children, and deals with matters relating to care proceedings, access rights and protection from child abduction. Because this protection will be removed, it will now be necessary to rely on the Hague Convention, the Luxembourg Convention and the Family Law Act 1986. It is not yet clear as to what the impact of this will be, but there are concerns that it will lead to less clarity and delay.

It will take at least 2 years (and quite probably much longer) for the negotiations to be completed and for the effects to be clear as to what the referendum means for Family Law. Expert legal advice is necessary when there is an international element in a family case and it is usually necessary to act quickly.  Leaving the EU may therefore lead to an additional element of complexity to secure the best jurisdiction for your case.

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk