What can couples expect in competing jurisdictions?
More than 6 months has passed since the UK voted to leave the EU and, despite the ceaseless speculation, there remains a huge amount of uncertainty about the future legal relationship between the UK and the EU. For family law this uncertainty is causing concern, as the EU has been an active player in implementing important legal procedures regarding cross-border disputes relating to children, divorce and financial issues. The UK government has suggested a ‘Great Repeal Bill’ which initially preserves all existing EU law. The suggested Bill is seen as the easiest way to deal with the transitional problems given our ties with Europe. The effectiveness of such a Bill could be undermined by the fact that the UK would likely no longer have access to the judicial structures of the EU, and would not benefit from the cooperative nature of the organisation in cross-border issues; there are therefore inherent problems in retaining EU laws in the UK legal system while no longer having access to the structure within which these provisions were designed to work.
The key piece of legislation in the area of cross-border divorce and children matters is Brussels II(a) (Regulation 2201/2003). In dealing with jurisdictional issues relating to divorce and children matters, the Regulation uses habitual residency as a key factor, and provides that when there are competing jurisdictions, the court where proceedings are first begun can seize jurisdiction. There are advantages with this Regulation in providing certainty about jurisdictional issues, creating a system where enforcement of court orders is straightforward, promoting cooperation between Central Authorities (government agencies assisting in linking foreign lawyers and courts) in Member States, and providing protective interim measures in disputes. If the Brussels II(a), and other Regulations, were to fall away without adequate replacement, this could create a vacuum of legal uncertainty that could adversely affect children and families involved in cross-border disputes.
So far, the UK government has not given a clear indication of how it intends to deal with these issues. With so many other legal and political challenges facing the UK and the EU over the next few years, it is hoped that the millions of people with potential cross-border aspects to their family and personal lives will not be ignored during the impending negotiations.