See February 2019 update, What Does Brexit No Deal Mean For Family Law
Brexit will affect international families involved in family law disputes.
Are you part of an international family?
Let’s use the example of Sarah and Pierre. She was born in England, he in France. They married ten years ago and have two children, both of whom were born in France. The marriage has broken down and Sarah has returned to England and, with Pierre’s agreement, she has brought the children with her.
You are part of an international family if you live in the UK but were born in another EU country. Or if you were born in the UK but move to another EU country. Or perhaps your ex was born in another EU country or moves to another EU country.
Brexit And Family Law: What Is The Significance?
Many of the important steps in Sarah and Pierre’s divorce are determined by EU rules. For example EU rules ensure court decisions made in one EU country are recognised in other EU countries.
Vital EU rules apply to divorces and family law in the UK.
Brexit And Family Law: EU Rules Decide Where To Start Court Cases
The importance of these rules cannot be overstated. Otherwise there can be family law cases in courts in two different countries at the same time.
Sarah and Pierre can’t agree in which country to start their divorce. Pierre urgently needs an order setting out when he can see the children. Sarah urgently needs a maintenance order. She starts divorce proceedings in England, which means Pierre can’t ask the French courts to make decisions. All the issues that concern them – the divorce proceedings, questions about the finances, how much time the children are going to spend with Pierre – are decided in England. But the English orders are enforceable in France.
Without EU rules, Sarah and Pierre could have proceedings going on in England and France at the same time leading to tremendous confusion, expense and delay.
EU rules decide in which country you can start your divorce and obtain a financial order. Without these rules couples who can't agree upon a country could face lengthy and expensive court cases. EU rules decide in which country you can start cases about your children, too. And these rules say it's where the children live. Without these rules there could be court proceedings about the children in two different countries at the same time.
Brexit And Family Law: EU Rules Streamline Child Abduction Cases
Do EU rules have anything to do with the Hague Convention’s role in child abduction? Yes, they are very significant. EU rules ensure a court in the child’s home country makes the final decision. This can mean the difference between a child returning home or not.
So if Pierre doesn’t return the children from France after a contact visit, Sarah knows a court in England will review any decision made in a French court.
EU rules will soon tighten up the Hague Convention by allowing the court to hear evidence from the child. EU rules will also impose a time limit of six weeks for the court to give its judgment.
Children who have been abducted are likely to be traumatised. Any delays and uncertainty in the procedure are to be avoided.
Without EU rules child abduction cases under the Hague Convention would take much longer. They wouldn’t take into account the child’s wishes. Furthermore there wouldn’t be an automatic review in our courts of the decisions of other EU courts.
Brexit And Family Law: EU Rules Allow Enforcement Of Family Orders In Other EU Countries
Sarah obtains a maintenance order against Pierre. Because of EU rules, this order can be enforced in the French courts. Pierre will have to pay Sarah maintenance even though she lives in England, and he lives in France.
If you obtain a court order you need to know it will work in other EU countries. These are orders concerning children, who sees them and where they are to live, maintenance, financial orders, and domestic abuse. And in particular orders made by consent.
Sarah and Pierre are able to agree the matrimonial finances which means they have avoided the stress and expense of court proceedings. They have a “consent order” made in the English court setting out what they have agreed. Under EU rules this is enforceable in France.
What Are The Options for Protecting International Families on Divorce After Brexit?
The Government is steering the European Union (Withdrawal) Bill through Parliament. This will bring all EU family law rules onto our books. But we will need new agreements to ensure EU family law rules remain reciprocal with other European countries.
When the European Union (Withdrawal) Bill becomes law, we will absorb all EU family law rules into our system. This means we will be bound by them. So we need the remaining EU countries to be bound by them as far as this country is concerned, too. But this isn’t automatic because, of course, we will no longer be a member of the EU.
If both this country and the remaining EU countries are bound by the same rules, they will be reciprocal. But there must be agreements to ensure reciprocity as we will no longer be part of the EU.
The Government will need to enter into fresh agreements with the remaining EU countries to ensure the rules are reciprocal. It is vital we use this opportunity to knit our family law system and the EU family law system together. Because this will keep it fully functioning for international families.
But it is by no means guaranteed we will enter into these new agreements. The Government is concentrating on trade and other important agreements. Family law is, perhaps understandably, low on the agenda. But various family law organisations are lobbying Parliament about this important issue.
The Family Law Bar Association, the International Academy of Family Lawyers, and the family law solicitors’ association, Resolution, have published a paper, Brexit and Family Law. This paper sets out the options available to the Government, along with their recommendation to retain full reciprocity.
Why Parliament Needs To Enter Into Fresh Agreements For Brexit and Family Law Rules
What could go wrong if there aren’t reciprocal agreements for Brexit and Family Law rules.
Imagine a situation where Sarah starts the divorce in England and shortly afterwards Pierre starts the divorce in France. The French court would not recognise Sarah’s proceedings in England, or any of the orders made. But the English courts would recognise the orders made in the French court. Both Sarah and Pierre would be involved in protracted and expensive court cases in both countries to sort out the resulting confusion.
Without reciprocal agreements we would lose the straightforward enforceability of orders in EU countries concerning maintenance and children. And the question of where to start your divorce case or your case about the children will be unnecessarily complicated.
What About The Court of Justice of the European Union?
The Court of Justice of the European Union has an important role in the updating and interpretation of EU family law rules. But the Government wants to end all links with it.
What are the implications of merging EU family law rules with our laws, but ending our links with the Court of Justice? Changes in interpretation of these rules, and amendments to these rules, will apply to all the remaining EU countries, but not to us.
This will cause confusion for international families. Here again Sarah and Pierre may become involved in lengthy and expensive court cases simply to decide fine points of legal interpretation.
Family law organisations are proposing to Parliament we maintain links with the Court of Justice of the European Union. This means we would be able to have our say in EU family law procedure and interpretation, and keep our laws and rules up to date. This would ensure continued fairness for international families in this country. It has no implications for sovereignty.
Should I crack on with my divorce or wait a bit?
If you are keen to divorce in a particular country for financial reasons you should seek legal advice without delay
I’m not sure what to do in the meantime. Can you help?
Yes of course. Here at Just Family Law we’re closely monitoring the situation and are up to speed with all changes as they occur.
Phone Joanne Houston on 01962 217640 for a free 20 minute consultation on these important issues.
We offer collaborative law to provide you with solutions tailored to your family’s needs – including same sex couples and families.
Visit our website just-family-law.com
The topics covered in this blog post are complex and are provided for general guidance only. If any of the circumstances mentioned in this blog might have application to you, you should seek expert legal advice.
image credit: Happy Families by Catherine Scott on Wikimedia (filter applied)