The triggering of Article 50 of the Treaty of European Union on 29 March 2017 began the process of the UK’s withdrawal from the EU, and this week the negotiations commence.
Because we have a comprehensive system of national law which governs divorce and child related matters it may be imagined that family law is unlikely to be affected by Brexit but certain aspects of procedural family law are very important for couples and these will be affected by Brexit including:
- which country should hear an application for divorce or an application in relation to children?
- how are Scottish judgements to be recognised and enforced in other European countries?
- how are European judgements to be recognised and enforced in Scotland?
- child abduction within Europe
All of these matters are governed by European regulations which have provided certainty and security for separating couples for many years.
International relocation is not uncommon today. There are many families who have taken advantage of free movement and who have lived either for short periods or more permanently in other European countries.
When relationships break down in circumstances such as this the question of where proceedings will be raised is thrown into stark relief. European Regulation (Brussells II Bis.) provides a common basis for jurisdiction throughout the EU in actions of divorce, separation and nullity of marriage.
The basis for jurisdiction is habitual residence. There is a clear and efficient rule in place to overcome conflict if a court in more than one country has jurisdiction.
Essentially, who gets to court first, wins.
The proceedings within the member state in which the divorce action was first raised take priority. The White Paper on the Great Repeal Bill sets out the government’s proposals for giving effect to EU law in force at the time of Brexit. Replicating the certainty provided by Brussells II Bis. within national law is of importance to the many separating couples with European links.
Recognition and enforcement
Brussells II Bis. also provides for the automatic recognition of divorce actions concluded in one member state by other members states, without the need for further procedure. Brexit raises concerns about how readily Scottish judgements will be capable of enforcement elsewhere in Europe and conversely how readily European judgements will be capable of enforcement in Scotland.
Brexit and children
Brussells II Bis also regulates jurisdiction in relation to matters concerning parental responsibilities. Again certainty flows from the jurisdictional rules contained within Brussells II Bis. for child related cases. And clarity for children may be particularly important.
Time is of the essence for parents trying to re-establish contact with children and of course for the children themselves who find themselves in the midst of adult conflict.
Although exiting the European Union will not affect the UK’s obligation under the Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention) which governs international child abduction, the protections for children provided by the Convention are enhanced by Brussells II Bis. It imposes certain helpful time limits to ensure that such cases are resolved within six weeks where the child has been abducted from one member state to another.
Enforcement of maintenance
Other European regulations facilitate the enforcement of maintenance orders throughout the EC. They permit an individual who seeks maintenance to obtain a maintenance order in one member state which is easily enforced in another member state.
In addition, the regulations facilitate couples agreeing and resolving matters long before separation may be contemplated. The validity of prenuptial agreements which determine in which country an application for maintenance should be determined may be in jeopardy upon Brexit if similar legislation is not enacted in the UK.
Looking to the future
At a time when international relocation is commonplace it is of some comfort to separating couples to know that they can readily access information about where they can raise divorce actions and about how orders might be enforced in countries throughout Europe. Brexit may leave a significant vacuum.
We await with interest what progress may be made in the ongoing negotiations to ensure that this vacuum is filled for families.
Whilst legislation may be possible to replicate the rules on jurisdiction and the rules for the recognition and enforcement of orders, replicating the longstanding spirit of co-operation between EC member states which has benefited families, may be more difficult to salvage.