What Does Leaving The EU Mean For Family Law?

On 29 March 2017, the UK formally triggered Article 50, thereby starting the process of leaving the European Union (EU).

Having been a member of the EU for over 40 years, many of our laws and procedures are intrinsically linked to European Regulations, and our leaving the EU will now create great uncertainty about how this will affect families whose relationships break down.

It is unclear at this stage as to the date we will officially leave the EU. Until this date, the Regulations continue to apply and nothing changes. Currently the European Regulations particularly affect jurisdiction in family law disputes and the enforcement of decisions. It is therefore in respect of these areas lies the greatest uncertainty in the lead up to our final exit from the EU.

The area of family law in which clients could face the biggest problems is jurisdiction in divorce cases. Currently, if divorce proceedings are commenced in one member state, assuming the jurisdiction requirement is satisfied, any subsequent proceedings in another member state will be automatically stayed in favour of the proceedings first issued. This has the certainty of preventing competing proceedings. However, this can cause injustice and unfairness where the financially stronger party issues proceedings outside of the UK where Courts tend to be less generous to the financially weaker spouse.

In the absence of such regulations or conventions, our position is likely to be similar to that of non-European countries where a decision on jurisdiction as between two competing countries is made on the basis of "forum conveniens" arguments, where the more appropriate Court will be...