The Brexit bomb: Article 50 and family law

Stowe Family Law Senior Partner examines the many legal implications of Brexit for international family law.

Tick, tick, tick – boom! It looks like any day now the Prime Minister will trigger Article 50 and our divorce from Europe will begin. The similarities between Brexit and divorce have already been discussed on this blog and in the media. There is much to untangle both financially, legally and perhaps even culturally. There is also much to ponder regarding our relationship with Europe in the future as we continue to share common interests and values.

So just what will this new future be like? Like most things involving Brexit it is still all speculation. Triggering Article 50 simply starts a process that should take up to two years but could take longer to conclude: indeed a recent European law academic thought it could take up to 10 years to finalise. That doesn’t surprise me. We can tell a client that court proceedings to sort out a financial settlement should take about nine months to conclude. But if problems arise during the course of those proceedings and further hearings are required to deal with such issues as interim maintenance, obtaining disclosure or involving third parties in the process then the time estimate can often be extended. Imagine that situation multiplied a hundredfold, with all the complexities of separating a country from a large organisation of other countries. Where do you even begin with this?

So how will Brexit affect family law? Let’s avoid the more sensational fears such as Brexit causing stress and increasing the number of people divorcing and focus just on the potential legal implications.

Jurisdiction

At the present time, by virtue of an EU regulation Brussels IIa, we have a EU-wide rule that the first jurisdiction in which proceedings are issued will take control of the process of divorce and the financial issues as well. Quite simply it is a race. So if, for example, we had a case where English nationals were living in France it may be that divorce proceedings could be issued in either England or France. This depends on meeting one of the criteria for either ‘habitual residence’ or ‘domicile’ as covered in previous blogs. The first party to issue correctly in either of these two countries will have won the ‘jurisdiction race’. Why engage in the race in the first place? Often people do so because they foresee a financial advantage to issuing in one jurisdiction rather than the other. For example a major incentive to people seeking to receive maintenance is that the English jurisdiction has the power to make lifelong maintenance orders, or at least orders for maintenance which might last longer than other jurisdictions. Also, with a discretionary power to award property and other assets which reflects a party’s financial needs it can lead to more generous outcomes than a jurisdiction which might be based on splitting marital assets equally or ignoring pre-marital assets.

The rest of the world outside the EU is a different competition. Let us take for example a similar scenario to the one above, but swap France for the USA. In that situation the first to issue proceedings does not win the race.  Instead both sides could issue in each jurisdiction. I have covered this very recently in my blog Home is where the heart is so I will not go into the detail here about the law surrounding the idea of forum conveniens. There is a certain common sense to where the parties ‘home’ is under the law but as we saw with U v J, when it comes to a jurisdiction dispute the parties will typically throw every factor they can think of into the mix to try and persuade the court and this can lead to unsightly and expensive legal disputes.

With Brexit what will replace the current Brussels Regulations that we are presently signed up to? There are two possible options. One is that a bilateral treaty is drawn up which mirrors the current legislation – i.e. the race to issue will remain the same. The other is that EU countries will be treated in the same way as the rest of the world.

What are the pros and cons of these options? On the upside a bilateral treaty would mean that there would be no practical change to the way jurisdiction races are dealt with between EU countries at present, even though we will no longer be a part of the EU. The problem with the jurisdiction race, however, is that there is a danger that it can set a divorce on the wrong path from the outset. When a race to issue is identified, everything happens quickly and secretly. A divorce petition is issued with the court. The date and time this was done is noted carefully as timing is essential to this race. The petition is then often served on the other party with no warning, maybe completely unexpectedly, and then what was a broken marriage can turn into all- out war.

Sure, the lawyers will know why it was all done, but that won’t stop them protesting on behalf of their clients about the aggressive, litigious conduct of the other party. With good will between the parties at an all-time low, the prospects of constructive discussions, of voluntary disclosure and a negotiated settlement can be diminished. On the other hand it is a rule that as lawyers we are all familiar with. We know where we stand and we know how to win the race and how to lose it. It also affects a large number of divorces that involve foreign nationals. After we have spent 40 years integrated with Europe, this law is not going to change overnight.

The EU Maintenance Regulations

This set of rules of rules is intended to provide an EU-wide system for enforcement of maintenance obligations, to provide a uniform approach to those situations in which  an order has been made in one country and one or both of the parties later move to another. The problem with this regulation is that it is fraught with problems concerning interpretation and implementation. We have seen several reported cases where the way in which the regulations should be interpreted has in fact been a central issue in the case.

We of course have arrangements with countries around the world and outside the EU for the enforcement of maintenance orders and the use of such Reciprocal Enforcement of Maintenance Orders (REMO) is common. It might suit us to have a treaty which replaces the EU Maintenance Regulations as it is ideal to have an arrangement which is uniform over a large block of countries that we have regular dealings with, and there is other legislation such as the 2007 Hague Maintenance Convention that could be used as well.

Impact on international disputes involving children

As I explained above, at present the main role in divorce of EU family law regulations is to assist in determining issues of jurisdiction and ‘conflict of laws’ as they are called. The principle is the same here. The general rule is that the court of the country in which the child is habitually resident will deal with matters concerning that child. In that regard therefore it is domestic law that will apply.

At present, judgements in matters concerning children made in one member state, which have been served and are enforceable there, can be recognised and enforced in other member states as well. This is relatively easily achieved by obtaining a certificate from the originating court which essentially confirms to other member states that procedural safeguards were adhered to and respected when the order was made.

Depending on the terms of Brexit, this situation could change. It may then be that parties seeking certainty about the recognition and enforceability of ordered arrangements would need to go to the time, expense and additional complexity of obtaining so-called “mirror orders” in other relevant jurisdictions.

In matters concerning international child abduction meanwhile, when a child has been removed from one country to another without the other parent’s consent, then the 1980 Hague Convention on the Civil Aspects of International Child Abduction applies.  It may be that, post-Brexit, we will need to rely on this international treaty to a far greater extent.

Brexit is going to take a long time to conclude and there are a myriad of issues that will need to be untangled and rearranged before the process is completed. Family law, it is fair to say, probably will not be near the top of anybody’s agenda – and after all, the number of cases involving international families still remains relatively low. However this is still an important area that needs to be dealt with properly and my hope is that the Government will give it proper consideration and listen to the family law experts that they are consulting with, such as the Family Law Bar Association and Resolution.

On the one hand, if we are exiting Europe one could legitimately ask why should we have one set of rules for continuing to deal with the EU countries and one set of rules for the rest of the world. On the other hand we currently have a set of rules with Europe that largely work and provide greater certainty to litigating parties , o why not find a way to continue with those arrangements? These decisions are not mine to make nor in reality are they yours but let us hope that the actual decision makers do get it right, that they can iron out the wrinkles that presently exist and find a way to enable our foreign citizens who are going through the trauma of a relationship breakdown to do so without causing them any more distress or upset because of uncertain law. Ultimately the law is there to help us, not hinder us!