On 29 March 2017, the UK formally triggered Article 50, thereby starting the process of leaving the European Union (EU).
Having been a member of the EU for over 40 years, many of our laws and procedures are intrinsically linked to European Regulations, and our leaving the EU will now create great uncertainty about how this will affect families whose relationships break down.
It is unclear at this stage as to the date we will officially leave the EU. Until this date, the Regulations continue to apply and nothing changes. Currently the European Regulations particularly affect jurisdiction in family law disputes and the enforcement of decisions. It is therefore in respect of these areas lies the greatest uncertainty in the lead up to our final exit from the EU.
The area of family law in which clients could face the biggest problems is jurisdiction in divorce cases. Currently, if divorce proceedings are commenced in one member state, assuming the jurisdiction requirement is satisfied, any subsequent proceedings in another member state will be automatically stayed in favour of the proceedings first issued. This has the certainty of preventing competing proceedings. However, this can cause injustice and unfairness where the financially stronger party issues proceedings outside of the UK where Courts tend to be less generous to the financially weaker spouse.
In the absence of such regulations or conventions, our position is likely to be similar to that of non-European countries where a decision on jurisdiction as between two competing countries is made on the basis of "forum conveniens" arguments, where the more appropriate Court will be considered in light of how closely connected the family is to that country and where the assets are located.
In relation to disputes concerning children, uncertainty will involve jurisdiction in relation to child related disputes, recognition and enforcement of child related orders across European borders and protections to support abduction proceedings under the Hague Child Abduction Conventions.
The other area that uncertainty is likely to arise is with regard to maintenance. Currently there is recognition and enforcement of maintenance orders across European borders. However, similar provisions are provided in the 2007 Convention to which the UK is bound. The 2007 Hague Convention does not apply within the EU as the EU Maintenance Regulation takes precedence. Provided the EU does not refuse to recognise the UK's accession to the Hague 2007 Convention in its own right, then the effect of the Maintenance Regulations no longer being applicable, could be limited.
There is clearly much work to be done by our elected representatives to ensure that the advantages we currently have from our membership of the EU in terms of family law are not lost upon our exit.
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.