After months of argument, we now know: the voters have spoken and have recommended to Parliament that the UK should leave the European Union.
It is at the moment too early to know the precise details of the way in which the law in this country may be affected by that decision. It is, however, possible to look, at least in general terms and for the immediate future, at the consequences of the referendum result for family law here.
In what follows, for convenience, references are made to the “UK”. It will be remembered that the law is different in Scotland and also in some respects in Northern Ireland, to that which applies in England and Wales.
The intermingling of the law in UK with European law
Family law in the UK has always been adept at dealing with cases with a foreign dimension. It was not as if the arrival in the UK of people from other members of the EU was the first occasion on which the law had to adopt flexibility in dealing with such cases. For many years the UK has seen foreign nationals (often becoming British nationals) living in the UK.
The same has been true with the EU. The UK law has always proved capable of adjusting to new situations.
One of the objectives of the EU being the free movement of people within its area, the effect of that policy and the increase in the number of citizens of other EU countries living in the UK, has meant a large number of cases coming before British courts involving cross-border disputes between citizens of two different EU countries. These have involved such issues as the grounds for divorce, the financial arrangements made after divorce, the recognition of marriage between same sex couples, the resolution of disputes relating to children involving parents living in separate EU countries.
Increasingly, therefore, the courts and lawyers have had to take account of EU Regulations and Directives which have been adopted in the UK and have seamlessly become part of the law here.
No immediate changes after the Brexit vote
One thing is certain: there will be no immediate changes. The common consensus is it will take at least 2 years, and quite probably much longer, for the negotiations leading to the exit of the UK from the EU to be completed.
Until that time, the current law in the UK, including that part of our law which involves Regulations passed in the EU remains. In other words, that part of EU law which applies to the UK will continue in force and cases will be decided under the law as it was immediately before the referendum.
The consequence is that anyone involved in a family case now or who may become involved in the next two years or so, will find that nothing will be different.
Accordingly, if a dispute arises between two EU parents concerning a child, it will still be necessary to decide the “habitual residence” of the child before a decision can be made about where any court proceedings can be heard.
Similarly, in divorce proceedings, the general rule is that the case, including the financial arrangements, will be heard in the country in which at least one of the parties live.
Apart from the question of the country in which a case may be heard, by and large, the law applicable to family cases in the UK did not significantly change as a result of the membership of the EU by the UK.
For example, the grounds on which it is possible to obtain a divorce in the UK were decided by the UK Parliament. The same applied to the UK law relating to child arrangements orders for resolving disputes concerning children. The fact that there was an increasing alignment of the law between many EU countries was a result, not of common law making, but of a recognition of the appropriate way to deal with such cases.
It remains to be seen what Parliament will decide about the way in which EU Regulations, albeit probably formally remade as UK statutes, will continue to be applied in the UK. It is quite possible that political expediency by those in favour of the UK withdrawal from the EU will require there to be cosmetic changes to the way in which some previously formulated EU laws are formulated.
It is very unlikely however that the underlying family law will significantly change by virtue of Brexit. For example, whilst some argue that the time has come for a change to the grounds on which it is possible to obtain a divorce, the pressure for that change comes from within the UK and is not related to our withdrawal from the EU.
The reality is that the country is in unchartered waters in relation to every part of our law, mostly particularly in family law.