As an EU member state, the Britain is subject to a number of regulations that govern divorce and family law in the UK. Damian Baron, head of family law at Harrison Drury, explains some of the likely consequences of a Brexit.
The issue of jurisdiction
One of the most important pieces of EU legislation in family law is ‘Brussels IIa’ which sets out the rules for determining jurisdiction, principally in respect of divorce proceedings.
Under the regulations there are also rules for recognising and enforcing orders between the UK and other EU countries without the need for any further investigation. This creates certainty, speed and ease in the procedure.
In terms of jurisdiction, the effect of this regulation creates flexibility for divorcing couples who have links with numerous countries within the EU to issue proceedings in the country of their preference.
For example, an English couple living in France could issue proceedings in either England, on the basis of their nationality, or in France on the basis of their residence. In some instances it can be financially beneficial for one spouse to issue proceedings in a particular country.
Compared to many continental European countries the UK offers a generous approach to the financially weaker spouse as our judges have much more discretion. Therefore, this can sometimes create a race between the spouses to issue divorce proceedings, as each party seeks to issue in the country that would provide the more favourable outcome for them.
Avoiding the ‘first to issue race’
A decision to leave the European Union could provide the opportunity to reconsider this jurisdictional issue which could be positive and may avoid the ‘first to issue race’ as described above.
On the other hand, the removal of the regulatory framework may lead to a similar position to that which we currently face with non-European countries. This would require a decision on jurisdiction to be made on the basis of ‘forum conveniens’.
Here, the court would be required to consider how closely connected a family is to this country and where the assets are before a decision is made as to whether proceedings can be issued.
The Law Society has recently published a report on the impact of an exit from Europe on differing areas of law, including family. It was stated in this report that “the UK could potentially create a series of bilateral agreements with other countries, which would mirror the existing provisions in current EU legislation”.
This could go some way to addressing some of the concerns raised by family law practitioners and it has already been stated there will be a two year transitional period to facilitate such changes being implemented.
Damian Baron heads up Harrison Drury’s experienced team of family and divorce lawyers in Lancashire and Cumbria. If you would like to speak confidentially to Damian about any family law matter contact him on 01772 258321.