What does Brexit No Deal Mean for Family Law?


What does Brexit No Deal Mean for Family Law

What does Brexit No Deal Mean for Family Law?

How will a ‘No deal’ Brexit affect my family law case?

This blog is for you if you are a UK/EU family, and it also applies to anyone from anywhere in the world who has a pension here. If you are in Northern Ireland your situation might be slightly different to England and Wales and you should speak to your lawyer. Similarly Scotland.

If you are a family lawyer seeking information, download guidance from the Law Society, “Joint Resolution and Law Society note to family lawyers in England and Wales of practical recommendations in the circumstances of no deal on EU exit”.

What should I do?

Take advice from an expert international family lawyer immediately. Why? It might be important for your case to be started and finished before Brexit because it might be difficult afterwards. And it could be your Court order might not be recognised or enforceable afterwards.

Obviously there are many countries involved and there isn’t a one size fits all answer. Your lawyer may need to speak to a lawyer in another EU country.

Should I start my divorce before Brexit?

EU rules contain a “first past the post” rule for starting divorces. After Brexit, divorces will be on the basis of “closest connection”. So if it’s important for you to divorce here and “closest connection” might not work, you better start before Brexit. But recognition of your divorce in EU member states may differ depending on the state involved. So you might need to finish before Brexit too.

What about recognition of UK divorces in EU member states?

Divorces are likely to be recognised in some but not all remaining EU countries. If recognition of your divorce is important for you, take advice immediately. For example, do you intend to live or work or buy property in a member state? Are you going through a same sex divorce?

What’s the solution? Make sure the divorce is finalised before Brexit.

How do I get divorced before Brexit? 

The petition is issued in the Court and served on your ex, your ex acknowledges it, you fill in the statement in support, the decree nisi is pronounced by the Court. Six weeks and one day later you make an application for the decree absolute. This brings your marriage to an end.

In a hurry? Apply to the Court to abridge time for the whole process or to obtain the decree absolute earlier.

After the decree absolute comes the certificate …

You will need to complete the certificate before Brexit too, and you will need to file the certificate in the Court of the member state. Speak to an expert international family lawyer about certificates and how to apply for them.

What about maintenance?

If you want to be sure a maintenance order is recognised or enforced in another EU member state after Brexit, get it made by the Court beforehand. If there isn’t agreement between you, time is getting short to list the final hearing before Brexit, and time should also be allowed to register (‘exequatur’) the order before Brexit. How long will this take? Depends which member state is involved. Speak to an expert international family lawyer as soon as possible.

This applies not only to maintenance cases involving other EU member states but also within the UK; eg in English/Scottish divorces.

We don’t live in England or Wales, but one of us comes from there …

This is called “sole domicile”. Things might get better for you after Brexit if you have a needs based claim for maintenance. This applies to claims involving countries the world over, not just the EU. Talk to an expert international family lawyer about whether this applies to you, and the possibility of adjourning your case until afterwards.

The pension is in the UK but I’m not …

You want a pension sharing order of a pension in the UK but you don’t live here and you don’t come from here. Article 7 of the EU Maintenance Regulation looks after you by providing a “forum of necessity”. But this will go after Brexit. See your lawyer about an urgent application to be made before Brexit.

Children …

An EU provision called “Brussels II” allows contact orders and orders for the return of children to be enforced in the remaining EU countries. But a certificate has to be obtained when the order is made. This is a similar certificate to that required in the recognition of divorces, as above.

In other children cases, such as residence, the process is different. As in the case of finances, the order must be registered (the “exequatur” process).

If it’s important to get the order before Brexit, factor in how long it will take to get the certificate, or to complete the registration, too.

What does Brexit No Deal Mean for Family Law?

Contact Family Lawyer Joanne Houston on 01962 217640 for an initial free of charge consultation on the question What does Brexit No Deal Mean for Family Law? In this 20 minute session she will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family lawyers. We offer Pay as you go costs. We offer Collaborative law solutions tailored to your family’s needs. 

The topics covered in this blog post What does Brexit No Deal Mean for Family Law? are complex. They are provided for general guidance only. If any of the circumstances mentioned in this blog apply to you, seek expert legal advice.

image for What does Brexit No Deal Mean for Family Law? Worried People by Magdalena on Wikimedia

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Brexit, Family Law & Divorce – March 2018 Update

Brexit, Family Law And Divorce

 

See February 2019 update, What Does Brexit No Deal Mean For Family Law 

Brexit, family law and divorce – do you think this might have relevance to you? Well, yes, if you’re part of an International Family, and you’re involved in a family law dispute.

Are You In An International Family?

If you or your ex were:

  • born in another EU country but live in the UK
  • born in the UK but live in another EU country

you’re part of an International Family.

How Do EU Rules Help Family Law?

They say:

  • Where to start Court cases. Otherwise there can be cases going on in two different countries at the same time
  • Court Orders made in this country can be enforced in other EU countries and vice versa

Do EU Rules Help Children In Family Law Disputes?

Yes.

  • They say where to start Court cases. This is the country where the children live. Otherwise there could be cases going on in two different countries at the same time
  • They tighten up the Hague Convention in child abduction cases:
    • A stricter timetable
    • The children’s home country must make the final decision
    • The Court will hear evidence from the child (a benefit shortly to be added)

What Difference Will Brexit Make?

The European Union (Withdrawal) Bill will bring all EU family law rules onto our books. But we need new agreements with the remaining EU countries to ensure these rules remain reciprocal. In other words, both we and the remaining EU countries must agree to be bound by them. Because otherwise there will be confusion, delay and extra expense for families.

Why Is Reciprocity Vital?

The Government must knit our family law system and the EU family law system together

Will These Vital Reciprocal Agreements Be Made?

It’s uncertain. The Government is concentrating on trade and other important agreements.

What Will Happen Without Reciprocal Agreements?

We will lose the straightforward enforceability of orders in EU countries concerning maintenance and children.  And the question of where to start divorce cases or cases about the children will be complicated.

Is The Court Of Justice Of The European Union (CJEU) Important?

Yes. It updates and interprets EU family law rules. But the Government wants to end all links with it.

What Happens If We End All Links With The CJEU?

Changes in the interpretation of EU rules, and amendments to these rules, will apply to all the remaining EU countries, but not to us. So our rules and the remaining EU countries’ rules will not knit together.

What Should Happen?

Family law organisations such as Resolution are lobbying Parliament about Brexit, family law and divorce. They’re saying in particular we should maintain links with the CJEU. This means we’d have a say in EU family law procedure and interpretation, and keep our laws and rules up to date.

Has The Lobbying Of Parliament Had Any Effect?

Yes. Amendments have been tabled to The European Union (Withdrawal) Bill currently going through the House of Lords. These are the amendments:

  • A requirement on the Government to report every six months on the progress of negotiating new reciprocal arrangements in family law, and a specific requirement to seek ongoing reciprocal arrangements;
  • Allowing UK Courts to refer family law matters to the CJEU for eight years and, where a referral has been made, to be bound by that decision. In addition, for the English Court to have regard to other CJEU decisions; and
  • Ensuring the Hague Conventions are ratified by the UK.

Is There Anything You Can Do To Help?

But Please Remember …

If you are keen to divorce in a particular country for financial reasons you should seek legal advice without delay

Brexit, Family Law And Divorce

Contact  Joanne Houston on 01962 217640 for free advice on Brexit, Family Law and Divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

 

image Happy Family by Vera Kratochvil on Wikimedia Commons

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Brexit, Family Law And Divorce

 

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.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

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)

 

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What Does Article 50 Mean For Family Law? 12 FAQs

article 50 family law

 

See February 2019 update, What Does Brexit No Deal Mean For Family Law 

1. Are there immediate changes to family law? None for now but it might get complicated in the future for international families, in other words if you live in this country but were born in another EU country, or if you move to another EU country, or if your ex was born in another EU country or moves to another EU country.

2. What’s the Government going to do next? This is by no means clear. In simple terms, the options are to pass the “Great Repeal Bill”, or in some other way absorb EU family law rules into our system, or do nothing and rely on the common law and the Hague Convention.

3. What about the Great Repeal Bill? Even if the Government absorbs all EU family law rules into our national law, they won’t work in the same way because they will no longer be reciprocal. This means they won’t knit together with the rules in other EU countries unless the Government makes fresh agreements with these countries. If fresh agreements aren’t made and the rules are no longer reciprocal, this would undermine the effectiveness of our laws against child abduction, and hinder the enforceability of orders concerning maintenance and children. Questions of jurisdiction would become complicated; in other words in which country a case should be heard.

4. Should I crack on with my divorce or wait a bit? You should seek legal advice without delay if you are keen for your divorce to be heard in a particular country for financial reasons.

5. Can I divorce in a particular country because it’ll give me a better financial result? EU rules state in which country you can start your divorce, and these rules also state if it’s issued in one EU country, it can’t also proceed in another EU country. As countries can give different financial outcomes, benefitting one spouse over the other, this means there can be races to issue divorce petitions – not exactly a recipe for coming to an amicable agreement. But if these EU rules aren’t incorporated into our legal system before we leave the EU you might be involved in a lengthy and expensive court case to decide in which country your case should be heard.

5. I’m leaving the country, can I take the children with me? It’s important to take legal advice if you don’t have the other parent’s consent because child abduction is an imprisonable offence. Perhaps you’ll be able to reach an agreement with the help of mediation or collaborative law instead? Alternatively you can make an application to the court for permission.

6. Where will my court case about the arrangements for the children be heard? EU rules say it’s where the children live. If we lose these rules there could be court proceedings about the children going on in different countries at the same time, and if you obtain a court order in one country but you need it to be enforceable in another country, you will need a “mirror” order in that country.

7. Do EU rules have anything to do with the Hague Convention’s role in child abduction? Yes they have a significant effect. If there are court proceedings to decide whether or not the children should be returned, EU rules ensure a review of the decision in the country from which they were abducted. This could mean the difference between the children being returned or not. EU rules will also tighten up the Hague Convention by allowing the court to hear evidence from the children if there’s a defence to abduction, and by imposing a time limit of six weeks for the judgment to be given.

8. My ex has moved to another EU country, what happens to our court orders about maintenance and the children? EU rules currently enforce family orders in other EU countries. If we’re not to continue with these EU rules after we leave the EU, the Hague Convention should help with spousal and child maintenance enforceability across borders, and some argue it might be better as it allows the order of only one jurisdiction to be enforced, namely the first by date. However we will lose the EU’s automatic enforceability of orders made by consent. These are all areas where it’s vital for orders to be easily enforceable in other countries – if all else fails the Government will need to make individual agreements with the remaining EU countries.

9. What happens if the Government decides not to adopt the EU rules? We would be reliant on the Hague Convention, and also what is known as “common law” – laws developed over the centuries by our courts (as opposed to Parliament).

10. What are the arguments for keeping the EU rules? Common law hasn’t moved with the times as we’ve been relying on EU rules. You’ll still be able to get divorced, determine your children’s futures, and protect them from abduction, it just means it may take longer and may be more difficult, stressful and expensive. If you can’t agree in which country your divorce is to be issued, and where your cases about the finances and children are to be heard, there could be lengthy and expensive court cases to decide. It may be more complicated and expensive to enforce family orders in the remaining EU countries, and child abduction cases under the Hague Convention might take longer and won’t take into account the children’s wishes in appropriate cases, and abducted children might not be returned to the UK because there won’t be an automatic right for decisions of courts in the remaining EU countries to be reviewed in our courts.

11. What are the arguments for ditching the EU rules? Couples will no longer have to race to be the first to start proceedings in the country of their choice in the hope they will get a better financial outcome, and this will allow more time for amicable solutions such as mediation or collaborative law. The Court of Justice of the European Union has an important role in the interpretation of EU rules but the Government wants to end all links with it. This means even if we merge all EU rules with our laws, and manage to make fresh reciprocal agreements with the remaining EU countries, we will have the odd situation where changes in the interpretation of these rules will apply to all the remaining EU countries, but not to us. This obviously is not in the best interests of clarity and certainty in sorting out the concerns of international families.

12. 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 me on 01962 217640 for a free 20 minute consultation on these important issues.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

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.

Marmot by Inklein, edit by jjron, on WikiMedia 

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Returning To Poland Following Brexit? 5 Helpful Tips

1.   Since the Referendum vote on 23 June 2016 there’s been a lot to think about. Will you be able to stay in the UK? Will you need to seek citizenship? The answers to these questions aren’t known yet. But what about the children if one of you decides to return to Poland, and the other decides to stay in the UK? You need answers and a good solicitor can provide them.

2.   If you aren’t in agreement about where the children should live, the parent who wants to take them back to Poland will need the consent of the other parent (or anyone else with parental responsibility) or the permission of the court otherwise he or she could be guilty of child abduction, an imprisonable offence.

3.   This is a situation where it is vital to take legal advice. The Children Act says the paramount consideration is the welfare of the children and this is the basis upon which the court will make its decision.

4.   The UK is signed up to the Hague Convention and if a child is abducted an application can be made for an order that he or she be returned.

5.   Where are court cases about children heard? Current EU rules say it’s the country where the children are habitually resident. Current EU rules also ensure orders concerning children are recognised in member states and are enforceable. (The UK government will have to decide whether to incorporate these EU rules into national law.)

Phone me on 01962 217640 for a free 20 minute consultation on these complicated issues

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

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.

photo of Poznań Market Square by Scotch Mist on Wikimedia Commons

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What does Brexit mean for Divorce? And for International Families?

brexit divorce international families

See February 2019 update, What Does Brexit No Deal Mean For Family Law 

International families are those who originate in different member states from where they live now. This applies not only to people living here who were born elsewhere in the EU, but to Brits living in other member states

  Important EU Rules that apply to Family Law

There are a handful of EU rules which apply to family law (under a EU regulation often called “Brussels II Revised”). Although not great in number, these rules go deep into our system and have significance for us all. The government will need to decide what to do about these rules.

As I mentioned in my post on Brexit prior to the Referendum, the government will be busy enacting countless laws to fill the vacuum that will be created by leaving the EU. Hopefully they won’t forget about family law.

Later in this post I describe how EU rules affect family law, 
and how these helpful rules might disappear altogether even before we
leave the EU

  What are the immediate changes to Family Law?

There are none. Everything carries on as before.

You have to remember that the vast majority of the laws in this country have been made by our own Parliament.

So for example if you are considering divorce you will still need to decide between one of five grounds for divorce as laid down by our very own Matrimonial Causes Act.

And what about disputes over matrimonial finances? Unless you are able to reach an agreement through mediation or collaborative law you might still find your case in the court and that too is determined by the Matrimonial Causes Act.

And if your dispute concerns the children we have our own Children Act which provides that the paramount consideration is the welfare of the children.

Vitally for international families this country is signed up to the Hague Convention and so in the case of child abduction (where a child is removed from England and Wales or is retained after a holiday) an application can be made for an order that the child be returned.

  Is our Justice System still fully functioning?

Yes, of course.

There are some issues though. The courts are overwhelmed with people representing themselves now that legal aid is difficult to obtain.

And family law is in need of reform to cut down on the cost and uncertainty of divorce, and to promote equality.

There are those who argue for no fault divorce, clarity on the division of matrimonial finances, binding prenuptial and postnuptial agreements, the extension of civil partnerships to opposite sex couples, rights for cohabitees on the breakdown of relationships or death etc.

With the recent political shakeup we have a new justice secretary
with little experience of the law, and of course the government 
and the civil service will be engrossed in Brexit related issues
for many years to come. You have to wonder whether there will be
much movement on family law reform.

But fundamentally, yes, we have a system that works.

  Are you going through Divorce?

If you are already going through divorce then there are no immediate changes.

But if you are contemplating divorce, there are those who say there will be an economic downturn as a result of the Referendum and those who say there will be an improvement. So some couples might decide to delay their divorce to wait and see but it is of course impossible to predict the future.

It may be that couples will delay divorcing if they work in a sector, or have a business in a sector, which is heavily involved in the EU.

I’m beginning to hear stories of families that have experienced strife because they took different sides in the Referendum. Some say it could even cause marriage breakdown.

As I mentioned in my last post, it's sometimes hard to cope with a 
clash of expectations in a relationship. If you can't talk it 
through maybe relationship counselling is the answer

  Are International Families in a difficult position?

They have their own set of worries. Will they be able to stay? Will they need to seek citizenship? To what degree will there be freedom of movement in the future? Will they still feel welcome?

At the moment it’s impossible to give a final answer to any of these questions.

In cases where there has been family breakdown the situation 
becomes complicated if one parent wants to remain in the country 
and the other wants to leave. If you aren't in agreement with the 
children's other parent (or other person with parental 
responsibility) about moving them don’t forget you will need the 
permission of the court. Otherwise you could be guilty of 
child abduction, an imprisonable offence

  What did the EU ever do for Family Law?

In my earlier blog post I summarised the significance of EU rules in family law. They have narrow but far reaching consequences.

  EU rules decide which country you can start your divorce in

Whilst it might be relatively straightforward for you to decide which ground you wish to rely on in your divorce petition, you also have to address an important technical question about “jurisdiction”, in other words what entitles you to start your divorce in the country of your choice.

EU rules determine this question. It depends on for example the country you usually live in. But jurisdiction can be complicated if couples live in different countries and/or were born in different countries. So EU rules ensure that once a divorce has been issued in one EU country, it can’t also proceed in another EU country as well.

This is important because obviously you want your divorce to go ahead in your country of choice, usually the one you live in.

And some people want the case to go ahead in a country which will give them the best outcome.

An example would be wives in high value divorces who are keen 
to issue in London as it tends to give better results. 
For example, the extraordinary and ground breaking case of 
Christina Estrada which I described in a previous post

  EU rules decide which country will deal with cases about your children

Similar EU rules about jurisdiction apply to cases regarding children. When you are having a dispute about your children it’s important to know where the case will go ahead.

  EU rules streamline child abduction cases

EU rules tighten up the Hague Convention. The court may hear evidence from the child or children concerned if there is a defence to the abduction, and a time limit of six weeks for the judgment to be given is imposed.

  EU rules enforce family orders in other EU countries

EU rules also ensure that orders concerning spousal maintenance and children are recognised in member states and are enforceable. That makes everything a lot simpler and faster where, for instance, one of the parties has gone abroad to work.

  What will happen without these EU rules for Family Law?

The government will have to decide to what extent it wants to incorporate these EU rules into our national law.

If it doesn’t we will still be able to get divorced, determine our children’s futures, and protect them from abduction. It just means that it may take longer and be a lot more fiddly and expensive. There could be costly court cases about which country should deal with the divorce or the matrimonial finances or the children. Your case could be heard in a country other than your first choice.

Child abduction cases under the Hague Convention might take longer and will not take into account the children’s wishes in appropriate cases.

As for the recognition and enforcement of orders about maintenance and children, we have international agreements with a range of countries but it’s not automatic and hoops have to be jumped through first. It’s costly and time consuming.

  The EU is improving these Family Law rules – will we miss out?

Easy to overlook in the avalanche of Brexit related news, but the EU is currently vamping up some of the rules that apply to family law. If the government doesn’t take action soon we could lose these rules altogether.

The proposed amendments include a tighter timetable in both 
child abduction cases and the enforcement of orders in other 
EU countries. If our government wants to adopt these improved 
rules there’s a deadline. We have to “opt in” to the 
negotiations about the rules by the autumn otherwise we might 
not be able to adopt them.

It would be a shame to miss out on these updated rules which are likely to come into force before we exit the EU.

Rather alarmingly if we don’t sign up to the amended EU family rules we will no longer be able to rely on the old ones either. This is because the new rules take over from the old rules and the old rules will no longer exist.

If this were to happen then clients, lawyers, the court system and court forms will have to move from the old EU rules about jurisdiction, child abduction, and the recognition and enforcement of orders to a set of our own national rules on these areas which, of course, have yet to be made by Parliament.

Alternatively we would be left with the potential for costly and lengthy disputes about jurisdiction, and unnecessary delays in child abduction cases and the enforcement of maintenance and children orders abroad.

All of this would cause a significant upheaval in family law and the courts.

Here at Just Family Law we will of course be closely monitoring 
the situation and ensuring that we are up to speed with 
all changes as they occur

  SUMMARY

  • The UK voted to leave the EU on 23 June 2016
  • The government has yet to give the EU two years notice under Article 50
  • In the meantime we remain in the EU and there are no immediate changes to family law
  • It is important to take legal advice if you are considering moving your children from one country to another without the other parent’s consent (or the consent of anyone else with parental responsibility).
  • When we eventually leave the EU we will lose a number of important family law rules concerning
    • “jurisdiction” in family law matters (in which country a case should be heard)
    • streamlining of child abduction cases
    • enforceability of family law orders in the EU
  • These rules will shortly be updated. Will the government be able to adopt them, or will these helpful rules disappear altogether?

Do you think Brexit will affect your family? We would love to hear from you so please leave us a comment.

If you have found this post interesting please sign up below for new posts by email.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

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.

picture credit: Jean-Pierre Dalbéra on wikimedia

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What would Brexit mean for Family Law?

brexit and family law

by Joe Chahwan on flickr 

See February 2019 update, What Does Brexit No Deal Mean For Family Law 

On Thursday 23 June 2016 the UK will vote either to remain in or to leave the European Union.

What would Brexit mean for family law? Is this something we need to worry about? Will it make a difference?

      International Families and International Family Law

It may come as a surprise to you to know that EU regulations are extremely significant to families with an international element, and international families are on the increase.

What are ‘international families’ in this context? They are British families living in the EU, and EU families living in Britain. They are UK nationals and nationals of other EU countries who marry or enter into civil partnerships. The children of these international families are often born in a variety of EU countries.

And this increase in the number of international families is hardly surprising given the free movement of populations in the EU. According to a recent Parliamentary Briefing Paper, ‘Migration Statistics’ by Oliver Hawkins (no. SN06077, 26 May 2016) over a million Brits live in one of the other twenty seven EU countries, and about three million non-British EU citizens live in this country.

    How do EU regulations impact on Family Law?

These fall broadly under three headings:

They determine jurisdiction; in other words, in which court, and in which country, cases can be heard

They allow the recognition and enforcement of certain orders made in this country throughout the EU

They strengthen the Hague Convention on international child abduction

      Jurisdiction

If we leave the EU there will undoubtedly be implications for family law. The most significant aspect is likely to relate to jurisdiction. Where will divorce proceedings be issued? Where will children cases be heard?

    Why is jurisdiction significant in divorce?

The EU rule is that divorces proceed in the country where they are first issued. This means if the couple have different ideas about which country is best for them, it can turn into a ‘Divorce Race’. As jurisdiction can be based on a number of factors, including where the couple live, or where they originated, there is often a choice.

But why is this important? It’s because the court that deals with the divorce usually deals with the matrimonial finances too. London has the reputation of being the ‘Divorce Capital Of The World’ because the Judges in our courts have much more discretion to change the ownership of matrimonial assets than in other European countries.

This means that typically wives often do better in this country than elsewhere in the EU.

So you can see why it’s important to some people to issue their divorce in England and Wales (that’s the jurisdiction we live in), but for others, just about anywhere else in the EU.

    Children

The jurisdictional rule in respect of children is that the case is heard in the country in which they live.

    Recognition and enforcement of children and maintenance orders

Under EU regulation, orders concerning children, and the payment of maintenance are recognised and enforceable in all other EU countries. So if you have a maintenance order made in England and Wales against a French former spouse or civil partner, it can be enforced in France, or indeed in any other EU country that they might happen to move to.

    Hague Convention on international child abduction

EU rules tighten and improve the procedure under the Hague Convention on international child abduction.

    What will happen to family law if we leave the EU?

If we leave the EU these rules concerning jurisdiction, the recognition and enforcement of orders, and the strengthened procedure under the Hague Convention on international child abduction will no longer apply.

Assuming that we want to keep these regulations (and many family lawyers agree that we do) it is to be hoped that the government would negotiate agreements across Europe to mirror them. But the government will have its work cut out negotiating a whole raft of trade deals and you have to wonder just how high up the agenda family law will be.

The aim of any negotiation is, of course, to achieve a balanced and fair outcome. But will the outcome in terms of family law be better or worse? It is impossible to say.

    What if fresh agreements are not negotiated?

In the case of jurisdiction the rule would revert to ‘Forum Conveniens’, in other words the most convenient court would hear the case. This might be based for example on where the couple live or where their assets are.

But this approach can lead to notoriously complicated, lengthy and expensive disputes if couples have different ideas about where proceedings should be issued and courts of more than one country are involved.

    The risks

Unless the clear cut rules on jurisdiction, mutual recognition and enforceability of orders, and the strengthened procedure under the Hague Convention for international child abduction are maintained there is a risk that family law in this country could get a lot more unwieldy, costly and time consuming.

At a time when the family courts are dealing with the fall out of the changes to legal aid, and at the same time are amalgamating and closing, this would not be good news for family law.

    A period of uncertainty

Whether or not the government does negotiate fresh agreements with the EU there will be a period of uncertainty before the new procedures are in place or the old procedures are readopted. New regulations will have to be drafted, new court forms will have to be produced, and the already overloaded court system will have to get up to speed.

    The role of lawyers

There is a great deal of speculation about what might happen. In the meantime all family lawyers will be doing their utmost to reassure their international clients. If we do leave the EU and new rules are put in place, family lawyers will be making sure they and their staff are appropriately trained and that their clients are properly advised.

    Summary 

  • EU regulations are important in family law when it comes to jurisdiction, the recognition and enforcement of court orders, and the procedure under the Hague Convention for international child abduction
  • These regulations are of particular significance to international families, in other words British families living in the EU, and EU families living in Britain, and to marriages and civil partnerships involving members of different EU countries, or EU countries and non-EU countries
  • If we leave the EU these regulations will no longer apply.
  • There will be a period of uncertainty
    • Either new agreements will have to be negotiated, or the old pre-EU rules will apply
    • The old pre-EU rules, particularly those relating to jurisdiction, could lead to complicated, lengthy and expensive court cases
    • How easily will the court system cope?
  • Family solicitors will be monitoring the situation and will ensure that they are up to date at all times during this process in order to advise their international family clients

Do you think that Brexit will affect you or your family? We would love to hear from you with your opinion so please leave us a comment.

If you have found this post interesting please sign up below for new posts by email.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

Visit our website just-family-law.com

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