The withdrawal date for the UK leaving the EU is just over a year away, and the impact of Brexit upon family law clients remains unclear.
There are two main EU Regulations that can impact on UK based family law clients. These are commonly referred to as Brussels II bis and the EU Maintenance Regulations.
Brussels II bis provides rules of jurisdiction to regulate which country’s court can hear a divorce, as well as which court will take precedence in the event of two competing divorce actions (for example a husband raising a divorce action in Scotland and the wife raising a divorce in Spain). Although Scottish family lawyers will be able to cope if we lose the rules of jurisdiction contained within Brussels II bis, it will be harder for us and our clients if we lose the rules for enforcement which Brussels II bis also contains. If a parent removes a child from one EU country to the other, without the appropriate permissions, Brussels II bis provides a fast and easy mechanism to secure the return of that child to the country from where they were removed. If Brexit results in us losing the enforcement aspect of Brussels II bis we still have the Hague Convention on International Child Abduction to fall back on, but that provides the removing parent with a greater potential to defend an application for the return of a child than Brussels II bis.
Similarly to Brussels II bis, the EU Maintenance Regulations provide rules for jurisdiction of maintenance claims, including how to deal with competing maintenance claims between two courts as well as the enforcement of maintenance obligations.
The reach of the EU Maintenance Regulations is wide, impacting on: married clients who have connections with another EU country; married clients with a connection between Scotland and England, such as an English wife living in Scotland, but then returning to England when her marriage breaks down; British ex-pat couples living outwith the EU; and parents who have an obligation to pay maintenance for a child within the EU.
The EU Maintenance Regulations provide a simple procedure for enforcing a maintenance award in another EU country (for example a Scottish maintenance order to be enforced in Spain). Although there are other international treaties we can fall back on for the enforcement of maintenance post-Brexit, the reality remains that enforcing maintenance awards in another EU country post-Brexit is going to be more complicated, time consuming and ultimately more expensive for the client.
In addition to providing a framework for jurisdiction and enforcement, the EU Maintenance Regulations also allow a couple to agree in advance, under which country’s laws any future maintenance claim will be heard. Although this might not appear to be that big a thing, the approach of different countries throughout the EU towards maintenance can be quite different. An EU maintenance claim in the right, or wrong court, can make a huge difference to the overall financial package. The ability to nominate which country’s laws a maintenance claim is to be heard under is particularly relevant to those couples entering into a Pre or Post Nuptial Agreement. Will all these maintenance provisions in existing Pre-Nuptial Agreements become void upon Brexit? We do not know.
At some time in the future we may get clarity on the future of family law post-Brexit, but for the time being we have to advise clients whose cases could be impacted by the EU family law regulations that nothing is clear. Once it is we will share that information on our website.