One might be forgiven for thinking it odd if this
post-referendum newsletter were to make no mention of the UK's
decision to leave the European Union (EU). There have been numerous
articles published since the Brexit result, which have endeavoured
to identify its immediate effect and to predict its future impact
in the family law arena. Having considered and debated the issue,
we would merely say that pending further developments, it is, for
now, business as usual.
It is correct that upon Brexit and the date of withdrawal, in the
absence of any EU agreement, the UK will no longer be bound by its
obligation to implement EU legislation. This of course includes
numerous valuable EU regulations, directives, decisions and
international treaties. We shall need to fill the legal holes and
adopt new national laws.
Although the component countries of the UK (England and Wales,
Scotland, Northern Ireland) have distinct matrimonial legislation
(particularly as regards the divorce process and financial claims),
the application of EU rules and regulations on jurisdiction and
children matters are fairly uniform across the three UK
jurisdictions.
In the case of divorce, for spouses with EU connections this will
mean looking at jurisdictional criteria and a potential return to
the more contentious 'forum conveniens' basis of
jurisdiction as opposed to the 'first in time' rule under
Brussels IIa. In relation to international cases involving
children, it will be vitally important for the UK to introduce laws
designed to replicate the useful enforcement provisions currently
available across the EU for cross-border families: enforcement of
custody orders, parental responsibility orders, contact orders and
maintenance orders. Clarity and legal restoration must be swift in
the post-Brexit era to ensure that the needs and rights of
international families continue to benefit from the advances and
reforms made over the past few decades.
For those planning pre- or post-nuptial agreements in contemplation
of the financial consequences flowing from divorce (whether living
in the UK or overseas), it would be prudent to give careful
consideration to the jurisdiction and applicable law clauses, and
also reassess asset values for the purposes of disclosure and
proposed financial provision.
We know that the process of withdrawal of the UK from the EU will
take a number of years. However, perhaps we are a little closer to
understanding the potential timescale and the mechanics of
withdrawal from the EU following the recent announcement by Prime
Minister Theresa May at the Conservative Party Conference this
October. She has said that the UK Government plans to trigger the
Article 50 withdrawal process by the end of March 2017 and to
introduce later in the year 2017 a 'Great Repeal Bill'
(which would repeal the European Communities Act 1972). The 1972
Act currently gives effect to EU law and priority over UK law,
including over Acts of Parliament. The PM has proposed that this
Bill should be passed before Brexit, but should not take effect
until after Brexit. The intention is for the vast majority of EU
law to be transformed (by the Bill) from EU law into UK domestic
law, and be effective on Brexit Day. This large mass of newly
domestic legislation would then be examined to determine which
elements should be retained, which disregarded and which
amended.
In many ways, this is good news, because it suggests that many of
the valuable EU regulations, directives and decisions referred to
above, are to be retained and rebranded under UK domestic law.
However, the scale of the task is immense – there will be a
mountain of legal instruments all requiring Parliamentary scrutiny
– and priority is likely be given to commercial and
employment laws, rather than the family law ones. Another concern
is that any wholesale adoption of current EU law would quickly
become outdated - Brussels II Recast (the successor to Brussels
IIa) is already on the horizon. It would be odd, to say the least,
for the UK to implement EU Rules which would shortly become
outdated. Perhaps more troubling, is the prospect of the UK
implementing EU law through domestic legislation, (for example, the
'first in time rule' under Brussels IIA) only for EU
countries to ignore them, since, in the absence of new
treaties/agreements, EU countries would not be bound by UK laws.
At the time of going to print, we await a ruling from the UK
Supreme Court on the question of whether the Government has the
power to trigger Article 50 without parliamentary authorisation. If
the Court rules that Parliament must be involved in the process,
then the PM will need to revisit this new timetable.
So it remains the case that, until the mechanics by which the exit
will take place have been fully established, the immediate and
direct legal implications of the vote to leave are difficult to
predict. For now, the interpretation and application of EU law
remains (temporarily, at least) untouched. The destiny of family
law in England after Brexit seems perhaps a little clearer, but
either way, little is going to change over-night.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
