This article was first published in Solicitors Journal on 6 September 2017 and is reproduced by kind permission.
There is no doubt that family law reform is currently at the bottom of the priorities pile. While the Brexit negotiations focus on the ‘divorce bill’ that the UK will need to foot, the No Fault Divorce Bill (2015-16) was stalled after its first reading in parliament in October 2015. In this time of political uncertainty, our far-from-sturdy government is undoubtedly compelled to focus its energy on the ongoing Brexit dialogue, particularly given that it has not had the smoothest of starts.
What will happen to family law after the UK leaves the European Union remains a crystal ball-gazing exercise at best – but this doesn’t mean that the possibilities cannot or should not be considered. Apathy is not a helpful attitude to adopt in the circumstances.
On the face of it, it would appear that the blanket approach of all current EU law being incorporated into UK law will avoid any complications in relation to family law. The sceptical (or realistic) view, though, is that it simply cannot and will not be as straightforward as this.
Family practitioners are much more frequently faced with international and cross-jurisdictional family life. Individuals are much more likely to travel, and therefore also more likely to meet their partners and start their families in different countries, or to adopt an international lifestyle for work, pleasure, or both.
One of the crucial issues is therefore going to be how the current certainty that courts in other EU jurisdictions will both recognise and enforce legal decisions made in the UK is to be preserved. Without the continuation of such reciprocity, family practitioners will undoubtedly face more challenges in dealing with matters with an international element, and the individuals involved will face a level of uncertainty they previously did not. A situation without the existing certainty in this respect would no doubt present increased litigation risks and, in turn, increased costs. Neither of these will make what are usually already very emotionally difficult situations any less stressful for those individuals involved.
Even worse, there is a possibility that different EU member states might take differing and thus inconsistent approaches in their dealings with the UK going forward, or even potentially be negatively prejudiced by political opinion following the UK’s exit. Commentators have also identified the potential ‘internal’ problem that this approach only turns EU law at the time of Brexit into UK law, meaning that it will become outdated as time goes on. Furthermore, UK courts will no longer have the ability or opportunity to influence EU law, which could be disadvantageous to litigants going forward. Uncertainty is no doubt what we currently face while Brexit negotiations continue. We can only hope that uncertainty is not what family clients and practitioners continue to experience once they have concluded.