It’s not EU, it’s me

It’s not EU, it’s me

“We must build a kind of United States of Europe. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which make life worth living”
Winston Churchill 1946

Like approximately half of the voting population (or thereabouts), the decision to leave the EU was horribly disappointing for me on every level. It felt regressive. But what would the impact on my professional life be? What is the true effect on family law? How will this affect our clients?

The UK joined the EEC on January 1st 1973, just over four years before I was born and we remained members until the final adieu, on 31 January 2020, with the transition period ending on 31 December 2020. In many ways it’s all I have ever known. I lived in a country that was a member state and there was a certain comfort in that, much like the United States of Europe that Churchill referred to in 1946. I was (and continue to be) very fond of it, despite the divorce.

Despite the long and arduous negotiations, culminating in the final (and very last minute) deal for Britain the leave the European Union being agreed on 24 December 2020, family law was certainly not top or even middle of the agenda. It may have been considered that some of the EU regulations pertaining to family law would be covered by existing Hague conventions so no need to focus on it; and that is to an extent true. However, it is clear that these are by no means a complete solution.

Where EU laws cease to apply and there is no substitute domestic law or other international treaty, there will inevitably be gaps that need addressing.

What is the impact on divorce proceedings?

Those who managed to issue before the end of the transition period will continue subject to the EU rules.

For many it won’t have a significant impact as before 31 December 2020, couples who were citizens of one EU country, but lived in another, would have the opportunity to consider the benefits of relying on the Lis Pendens (first past the post) rule to race to the chosen court and therefore secure the chosen jurisdiction to deal with their divorce, commonly referred to as the jurisdiction race. It was common to consider which country’s matrimonial law was more advantageous to a client’s case and that was a primary consideration for lawyers to consider. However, ringing in the New Year, we waved Au Revoir to the Eurostar divorce.

Will London remain the “divorce capital” of the world?

Yes, and in some ways removal of the jurisdiction race will make that position stronger. The courts will look at the parties’ connection to the competing countries in the case of a disagreement as to jurisdiction and it will be arguable that if the stronger connections are with England and Wales then jurisdiction will be secured here, regardless of whether or not proceedings have already been issued elsewhere.

Of course there is the issue of additional litigation and the costs and delay caused by that. We are yet to see the impact but it is likely that there will emerge lengthy and costly disputes for divorcing couples on the subject of jurisdiction alone and this will impact not only the parties but also the courts who will struggle.

On the plus side, there will be a single approach for all international families and also for the less financially dominant party at least, the potential unfairness of the race for jurisdiction to one which is less favourable to that party will be evened out. This, of course, is subject to whether they can afford to argue the jurisdiction point in the first place!

Will divorces be recognised throughout the EU?

If the divorce was finalised before the end of the transition period, there will be no issue. However, for divorce proceedings issued after or not concluded before 31 December 2020, recognition of the divorce may become an issue.

Previously, UK divorces were recognised throughout the EU automatically by virtue of Brussels IIa but now reference will need to be made to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations. Less than half of the member states are signatories to the Hague Convention 1970 and so a potential gap exists here.

It may well be that the non-signatories will still recognise the UK divorce but they may not and it is incumbent upon the UK practitioner to ensure that the jurisdiction grounds for the divorce would satisfy the requirements in the country where recognition is sought. It is certainly advisable to obtain a Certificate of Recognition just in case!

Will financial orders be recognised?

If proceedings were concluded before the end of the transition period, and as above, the answer is yes. But for those not yet concluded then enforceability and recognition may be an issue and if there are connections with an EU country then local advice should be obtained.

The EU Maintenance Regulation provided for recognition and enforcement of maintenance awards between EU member states and financial orders made before 31 December 2020 will still be recognised. The UK ratified the 2007 Hague Convention on Maintenance on 28 December 2018 and there are many similarities, though there are some differences too. Therefore a cautious approach ought to be taken, particularly if there are connections to any EU country, as there is a risk that they will not be recognised and will therefore be unenforceable. It will therefore be essential to consider the jurisdiction rules in the relevant member state where enforcement may become necessary.

What is the impact on children matters?

Brussels IIa also regulated the rules of jurisdiction for children matters and allowed for the recognition and enforcement of orders relating to parental responsibility. Brussels IIa gave an added layer of protection. We now rely solely on the 1996 and 1980 Hague Conventions. Whilst similar, they are not identical and so automatic recognition of orders will be no longer and for example in relocation cases, we will need to consider “mirror orders”, therefore increasing costs. In terms of child abduction, there are concerns that delays in returning children will occur.

Will it be ok?

Of course, it will be. It always is.

There is no doubt that the interests of family law rely on the reciprocity and uniformity of all countries, particularly for our international families. There will initially be a change for the European families as a result of Brexit and there is certainly uncertainty for family lawyers on how things will work out.

Seeking local advice at an early stage will be an essential part of our job and for that I am grateful for my wonderful network in the International Association of Family Lawyers. More now than ever our cross-border relationships with our fellows in family law are hugely important and valued.

Written by Grainne Fahy, Partner and Head of Family Law at BLM

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