In the midst of the confusion as to when Britain will finally exit the EU and what the eventual deal will look like, the crucial impact upon international family law needs to be considered.
With approximately 1 million British citizens living in EU member states and 3 million citizens from other EU member states living in the UK, it is essential that a smooth transition and plan of action is effected to protect the interests of UK and EU member state citizens.
It is important to understand how the European Union affects family law in the UK. Each member state has its own family legal system, however the overarching EU directives provide a common set of rules for jurisdiction, recognition and enforcement of judgments and orders in every member state.
These EU directives include a mechanism to decide which country’s court has exclusive jurisdiction to hear a case, when it is issued in two countries at the same time. This helps avoid having two different countries, both adjudicating over the same case, which carries the risk of resulting in two very different outcomes.
Currently, EU regulations are immediately recognised and enforceable in all member states. Upon leaving the EU, this is set to change.
In the event of a no deal Brexit, the Government has recently set out its proposals in which it is immediately clear, that the recognition of agreements and orders between the UK and other EU member states will be affected.
The Government’s proposal could bring implications in regards to the EU Maintenance Regulation. This regulation aims to enable an individual entitled to maintenance payments, to easily obtain a decision in one Member State, which will automatically be enforceable in another Member State without further formalities. The Regulation governs which courts have jurisdiction and which law it should apply. It also governs the recognition and enforcement of decisions in respect of contact orders and injunctions. This helps ensure there is common and shared information between member states, in respect of the protection of children and maintenance which former partners have been ordered to pay. Therefore, enforcing maintenance orders, contact orders and injunctions, in a post Brexit world will be more complicated, time consuming and more expensive for the client.
Currently, EU regulations state that parties who are divorcing can apply for a divorce in the country where:
(a) The parties currently live
(b) The parties last lived together
(c) One of the parties lives – although there are requirements that you have either lived there for six months immediately before filing and you are a national. If you are not a national, you must have lived there for at least one year immediately before filing.
As long as these conditions are met, the court where the divorce petition is first filed, has the power to rule on the divorce. This court also has the power to decide on issues relating to parental responsibility with regard to children, if the child lives in that country.
With the Government’s proposals, it is likely to be the case that the English courts would have to decide if there was a more appropriate country for the proceedings to take place. This would be expensive and complex for the applicant and could be further complicated if there were conflicting decisions.
Other proposals include the UK’s continued recognition of domestic violence injunctions obtained in the EU, however (and crucially), there is no reciprocal recognition from the EU as to domestic violence injunctions made in the UK. This will cause a particular issue with a party who obtains a Non-Molestation Order or Occupation Order in the UK and wishes for it to be recognised in other EU member states.
The gravest of concerns, is whether divorces granted in the UK will have automatic recognition in the EU. At this stage, it looks unlikely and this is another area which will cause significant issues.
It is clear that such important matters must be addressed with complete clarity. Unfortunately, at this stage, it is unclear what any future Brexit deal has in store for family law in the UK. We will provide further updates on this matter as it progresses.
If you would like to discuss any aspect of this article, please contact Javita Malhotra on 01494781358 or at firstname.lastname@example.org