Brexit: where are we now for family law?
It would be easy to think that hardly a day went by in 2017 when the state of the negotiations for the UK to leave the EU was not being discussed.
Shortly before Christmas, a joint 'report' was issued by the UK government and the EU negotiators. That report was intended to be an explanation of how matters stood “under phase 1 of the negotiations under Article 50 in relation to the orderly withdrawal of the UK from the European Union”.
In some quarters, the report was heralded as being the 'agreement' which enabled the negotiations to move on to the next stage, namely discussions on the liabilities, responsibilities and relationship between the two sides in the future.
Does the report affect family law in the UK after Brexit?
It is important to recognise that the report is certainly not an agreement and does not set out the laws which will apply in the UK after Brexit. Indeed, it is no guarantee that there will be an agreement. It is best described as a statement of 'goodwill' between the UK and the EU of a joint intention to move on to the next stage of the negotiations.
In the part of the report dealing with legal matters, it is recorded that there is a need to provide:
“legal certainty as to the circumstances under which EU law on jurisdiction, recognition and enforcement of judgments will continue to apply and that judicial cooperation procedures should be finalised”.
In other words, the parties were stating formally that both the UK and the EU wish to ensure that the eventual agreement (if there is one) will do everything possible to ensure that there is legal consistency and cooperation between UK and EU law after Brexit. In this way, individuals or businesses who need to resolve a dispute straddling the two jurisdictions will be able to rely on a sensible outcome from cooperation and recognition of and for the, by then, separate legal systems in the UK on the one hand and the EU on the other.
For individuals, nowhere is this more important than in family law.
Family law between the UK and the EU
During the years of the UK membership of the EU, there has been a significant increase in the number of people of different nationalities forming personal relationships, some of which become marriages, some cohabitation outside marriage and many involving the arrival of children. Where relationships are created, some break down.
When a relationship breaks down, if both parties are of the same nationality and live in the same country, there is no difficulty; the laws of that country will apply in resolving any problems which arise from the breakdown. It is when the parties are of different nationalities and are living in different countries that serious (and often expensive) problems can arise.
A practical example
Take the fictional example of a British man (Jo) who married a German woman (Heidi): they set up home in England. They have two children who are now aged eight and six. Both children have English as their first language and are at school. Heidi alleges that Jo was violent and controlling. Despite counselling, they are unable to resolve their problems; the marriage breaks down and they separate. Heidi takes a flat in the same town and the children share their time between their parents. However, Heidi feels that she has no close friends in England and her family is in Germany. After only a month, Heidi moves to Germany, taking the children with her. She does not speak to Jo about her planned move, a possible divorce or the future of the children.
Heidi consults a lawyer in Germany, says she wants a divorce and also wants to apply for a court order which states that the children should primarily live with her. Jo denies the behaviour complained of against him, does not want a divorce and says that the children should live with him so that they can continue their education in England.
One of the first issues which will arise is the country which should deal with the legal proceedings, in relation to the divorce, any financial arrangements that need to be made and where the children are to live and go to school.
Coordinated approach to family law problems
Over the last 20 years or so, a series of agreements have been made between the member states of the EU, which of course currently includes the UK. These agreements have been made into EU and national law, covering all countries in the group.
Accordingly, in the example given above, if the proceedings are issued in Germany, then the UK courts would recognise any orders made there and help to enforce them, through the English courts if necessary. Similarly, if the proceedings were to take place in England, the orders of the English courts would be recognised and enforced in Germany. This, of course, would be of enormous help to Jo if the decision was that the children should be brought back to England.
There are many other examples of family situations where such a coordinated approach has provided consistency and reciprocity between the courts of two member states of the EU.
The future under Brexit
The December 2017 report is a good starting point: it shows intent to resolve the problem. However, it is not sufficient to resolve the potential problem of what will happen to those in the UK who become embroiled in legal proceedings relating to the breakdown of a relationship with a former partner from another EU country.
After Brexit, the UK will no longer recognise EU laws made during its membership of the EU, unless the UK Parliament specifically decides to do so. That is the result that most UK family lawyers hope will be achieved, in the interests of their UK clients. There is much work still to be done to achieve a legally binding solution to this modern day problem, a problem which could easily affect many former partners who have no idea of the potential complexities which they face. For their sake and the sake of the children, agreement is needed, and needed before the UK leaves the EU.