by Deborah Murphy
So, we’ve finally started ‘divorce’ proceedings against our European other half. Now comes the hard bit – the splitting up of the joint assets, the recriminations, the ‘have I done the right thing’ thoughts. Well, as our politicians seem to say, there’s no going back, so we’ll have to do what we can to try and make the split as amicable as possible and to ensure everybody is dealt with fairly.
Amongst all the other law that will need to be rewritten, family law – which is already complex – looks set to be a bit of a tester. With free movement of EU members over the years, and with the range of nationalities both settling in this country with a marriage made in their own, and vice versa for British nationals, untangling their marriages will need some clever drafting of law to ensure that everybody is considered.
Resolution, which was formerly known as the Solicitors Family Law Association (SFLA), is an organisation of 6,500 family lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters. Resolution also campaigns for improvements to the family justice system.
St Helens Law is a member of Resolution – whose full statement, released as a reaction to Brexit day, is copied below…
If you would like a FREE 30 minute consultation regarding any matter of family law, then please email email@example.com or telephone 01744 454433 and ask for Debbie or Nicola.
How will it affect family matters?
(text taken from Resolution’s newsletter 29.03.17)
In the last few minutes, a letter has been delivered from the Prime Minister to the President of the European Council to formally trigger Article 50, starting the formal process of the UK leaving the EU.
Yet there is still great uncertainty about how this affects families whose relationships break down, whether that involves foreign nationals living in the UK, or UK citizens living abroad or married to foreign nationals.
MPs on the Committee have listened to the legal profession and recognised that there is a significant risk that the vision put forward in the Government’s White Paper won’t work for British families.
Incorporating EU law into domestic legislation on its own won’t work as there is a need for reciprocity and cross-border recognition. Without reciprocal rules, there can be no legal certainty in outcomes with all the ensuing complications, delays and potential costs for families and children. There must also be suitable transitional provisions in case not all negotiations are concluded before the UK has formally left the EU.
Until we leave the EU, the regulations continue to apply and nothing alters. However, there are still potential issues for current cases which need to be considered.
This is where our clients will face the biggest potential problems if we leave the EU and no new framework is put in place.
Since 2001, if divorce proceedings are pending in one Member State, subsequent proceedings in another Member State must be automatically stayed in favour of the proceedings first in time. This prevents competing proceedings and provides certainty for the litigant. In the absence of Brussels IIa, the Courts of England and Wales will revert to forum conveniens with all that entails in terms of cost and complexity for our clients.
There is of course a tension here as Brussels IIa can lead to real unfairness and often greater financial hardship if the stronger financial party can issue first outside of England. Resolution has always considered that the potential injustice of Brussells IIa could be tempered by having a hierarchy of jurisdictions, but this has never found favour amongst the rest of the EU.
Another advantage of forum conveniens is that there is a greater possibility of reconciliation or DR options which are all but extinguished by the ‘first to issue’ regime. Some commentators would certainly prefer it if we were no longer subject to the jurisdictional rigidity of Brussels IIa, but inevitably the alternative would cause even greater strain on our already creaking family justice system, as well as the requirement for the retraining of a whole generation of Resolution lawyers.
The effect on litigants also cannot be under estimated:
“A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed”.
Even when the case is finished, there is then the risk of any judgment/divorce not being recognised elsewhere in the EU as is automatically the case with Brussels IIa. The 1970 Hague Convention on recognition of divorces only currently applies to 8 EU Member States.
The position for children if Brussels IIa no longer applies is more mixed, although any loss of protections for children should be avoided. In terms of abduction, the 1980 Hague Convention will still provide a mechanism (albeit slower) for the return of children, including co-operation between the judiciary and Central Authorities.
Similarly, although little utilised at present, the Hague 1996 Convention provides jurisdictional rules, allows for the transfer of proceedings in certain circumstances and for the recognition of orders relating to children. However, the proposed changes to time limits, appeals and hearing the voice of the child in the recast of Brussels IIa will be lost (assuming the UK had remained in the EU and had signed up to this).
There will also be the loss of the EU Charter on Fundamental Rights and Freedoms. This has been central in advancing the rights of the child, for example to have their voice heard and to maintain direct and regular contact with their parents. The UN Convention on the Rights of the Child will remain and has similar scope but has not been incorporated into domestic legislation.
Provided the EU does not refuse to recognise the UK’s accession to the Hague 2007 Convention in its own right, the position for English and Welsh clients may actually be preferable to the current system under the Maintenance Regulation.
At the moment we have to automatically recognise judgments of other Member States but outgoing English judgments require a declaration of enforceability. This declaration is also required under the Convention, but the same will apply to incoming judgments as well. Both the Convention and the Regulation allow for jurisdiction agreements. There are no direct jurisdictional rules or lis pendens in the Convention. However, under the Convention if proceedings are pending in another state and those proceedings were issued first, then that state can refuse to recognise another order.
Similarly, if a judgment has already been obtained in one state, then that state can refuse to recognise the order of another state. Thus, the provisions on recognition operate as indirect jurisdictional rules but without limiting the English Court’s ability to make a maintenance order if only one party is domiciled in this jurisdiction.
The EU has declared that the provisions for co-operation between Central Authorities in the Hague Convention apply to spousal maintenance as well as child maintenance so again there is no difference. The Convention in theory is more exacting in terms of enforcement as it requires contracting states to have effective measures in their internal laws for enforcement.
On balance therefore, it is arguable that the Hague 2007 Convention is not only the equal of the Maintenance Regulation but preferable in some respects. In reality, the downside is not the loss of the Maintenance Regulation, but rather the loss of the European Enforcement Order which allows automatic recognition of UK maintenance orders made by consent.
The problem with the proposed Great Repeal Bill is that it would force us to adopt rules which may not be helpful to families, but with no guarantee that the other Member States will play by the same rules. Thus, proceedings issued or orders made in England could simply be ignored.
So what is the alternative? Ideally, the UK would enter into a bespoke treaty with the EU which could allow us to adopt those aspects of EU family law which work for our systems and clients, with mutual recognition and an ultimate appeal court in the shape of the CJEU. Unfortunately, this is contrary to the Brexit agenda laid out in the government’s White Paper which requires rejection of the EU, its laws and its institutions (even if in the case of family law the laws are procedural rather than substantive).
One alternative would be to agree to apply all of the EU regulations, (a) with the CJEU as the appeal court, or (b) without the CJEU. This would appear to be politically unachievable, because (a) the government has made it clear that it will not accept the jurisdiction of the CJEU and because (b) it will not be acceptable to the other Member States if we will not abide by the decisions of the CJEU.
Another option would be to operate without the EU regulations and to rely on other conventions, particularly those emanating from the Hague. This would certainly be preferable to the mooted Great Repeal Bill but, as outlined above, it is not without its problems.