English family law and the big European divorce

2 March, 2017

UK family statute law is a combination of domestic legislation, EU legislation and international treaties. The vote to leave the European Union has had no immediate effect as all of the legislation continues to apply.

The Prime Minister is proposing a “Great Repeal Bill” which will remove the European Communities Act 1972 from the statute book and end the jurisdiction of the European Court of Justice in the UK. Parliament will have the opportunity to enshrine parts of EU legislation and remove others. However, the early indications are that treaty provisions will fall away, leaving a vacuum on some important issues. This will affect, in particular, the body of European law that was designed to harmonise rules over which country’s courts should resolve disputes and ensure that decisions made in one jurisdiction were easily enforceable in others.

So, what is likely to change in family law?

 

Divorce Jurisdiction

The current rules on which country a divorce should be dealt with are relatively simple as they are based on establishing the habitual residence of the parties. However, the existing “first in time” rule means that the case is often heard in the first country in which a spouse petitions. This has been criticised for leading to a race to the court, which discourages parties from trying to reach an agreement, and tends to benefit the wealthier party. Brexit will end this system and English and Welsh courts will be able to accept cases based on domicile.

This could be replaced by a system in which divorce proceedings are issued in the most suitable jurisdiction. It might be possible to transfer proceedings from one jurisdiction to another.

 

Enforcement

Current EU enforcement measures provide a relatively simple framework in which orders can be enforced in other member states. These too will end post-Brexit. There is no indication from the UK government as to whether it will seek to ensure that there continue to be effective enforcement measures post exit.

 

Child Abduction

The UK will continue to be a signatory to the 1980 Hague Child Abduction Convention and 1996 Hague Child Protection Convention, to which EU member states are also signatories. However some EU legislation supplements these and unless they are enshrined in UK law through the Great Repeal Bill or later legislation, there will be gaps to address.

 

How will this affect me?

As there have been no immediate changes to the law, existing proceedings should not be affected. However, Brexit will lead to changes that are likely to have profound effects on separating couples with connections to more than one European country. Without access to the system of European law that harmonises the approach taken in the courts of all members states, the law will become more complex for those affected unless lawmakers intervene. Historically, governments of all colours have shown reluctance to reform family law, so family law professionals await with interest the outcome of Brexit negotiations.