It is hard to be believe that with only days away from a vote in Parliament on the Brexit deal, 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 is proposing a transitional arrangement which will initially preserve all existing EU law and this is perhaps seen as the easiest way to deal with the transitional problems given our ties with Europe. The effectiveness of a transitional arrangement 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.
Brexit: implications for issues involving children
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.
Brexit: implications for finances
Since the referendum we have seen a number of enquiries coming in from clients concerned about the implications for them and their financial claims on divorce. Theses enquiries have included clients going through the process already, or contemplating a separation or divorce, whether they live in the UK or abroad. For those who already have a final order from the Court, they may find that the result of crashing out of the EU with no deal they may no longer provide the same financial security as there are concerns about house prices, interest rates, currency exchange and unemployment. For individuals who have ties abroad there are added concerns because European Conventions (which the UK is a signatory to by virtue of EU membership) may no longer be binding in the future. This will have particular implications for those seeking to establish domiciled or habitual residence and also the enforcement of orders against foreign assets and maintenance.
Until the UK completes the transition process, much of what happens will be driven by sentiment and often emotional reactions to a situation can take over. Regardless of your nationality, Brexit will have far reaching implications for individuals seeking to separate the division of assets and the possible relocation of children.
If you have any specific questions about how Brexit may affect your situation, don't hesitate to get in touch.
