Spotlight
Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Resolution issues Brexit notes for family lawyers ahead of IP completion day
Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
Online filing is real-time on New Year's Eve: practice direction change to accommodate EU withdrawal arrangements
I have heard that there will be an amendment to the relevant practice directions to provide that online applications received on New Year’s Eve after 4:30 PM and before 11:00 PM will count as...
Northamptonshire Healthcare NHS Foundation Trust v AB
The issue in this case concerned AB’s capacity to make specific decisions about treatment relating to her anorexia nervosa. She was 28 years old and had suffered with anorexia since the age of...
EU laws continue until at least 2038 and beyond
The UK left the EU on 31 January 2020.  But in matters of law it fully leaves on 31 December 2020.  But EU laws will continue to apply, and be applied, in the English family courts from 1...
Remote hearings in family proceedings – how is justice perceived?
The motion for the recent Kingsley Napley debate:  “This House believes remote hearings are not remotely fair” was carried with a fairly balanced 56% in favour and 44% against....
View all articles
Authors

Brexit and national family law

Sep 29, 2018, 18:31 PM
family law, brexit, uk, Brussels IIa, politics, EU law, Treaty of Lisbon, domestic law
David Hodson OBE sets out some preliminary reflections on the impact on domestic, national family law of the UK voting to leave the EU.
Slug : brexit-and-national-family-law
Meta Title : Brexit and national family law
Meta Keywords : family law, brexit, uk, Brussels IIa, politics, EU law, Treaty of Lisbon, domestic law
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Jun 28, 2016, 03:30 AM
Article ID : 112625

David Hodson OBE sets out some preliminary reflections on the impact on domestic, national family law of the UK voting to leave the EU. 

In my article, ‘Brexit and international family law’, I examined the impact of the decision by the UK to leave the EU on family law with specific reference to international families and EU laws with cross-border impact.

It might be thought that as it is EU law, it would be irrelevant for entirely national families and domestic family law. Not so. Because the EU has had a policy of imposing laws to apply in Member States for their own nationals and their own law, even if no cross-border element, there are family laws in England and Wales which are exclusively or largely EU law. Certainly not as many or as widespread as those affecting international families but certainly EU laws affect all national, domestic family law solicitors, barristers and judges and those involved in family court proceedings.

Whereas domestic laws pass through the UK Parliament, EU laws apply automatically and directly in Member States without going through local legislatures. If the EU laws cease to have effect on a particular date when the UK finally leaves the EU and there is no substitute domestic law or other international treaty, there will be a vacuum. This cannot happen. Domestic legislation is needed.

If the UK leaves sometime between late June 2018 and October 2018, ie the UK government gives the notice under Art 50 Treaty of Lisbon over the next few months, then domestic legislation is urgently needed from the UK Parliament to replace the EU laws which will have fallen. This is the case in many other areas of national law where EU law has directly applied. It means the domestic law replacements need to pass through Parliament and into law by June 2018, therefore introduced into Parliament in about November 2017. This is a tight timetable. It is achievable.

The most obvious area where EU law applies to entirely domestic cases is jurisdiction for divorce, judicial separation and similar proceedings. These are in Art 3 of Brussels IIa, known as the Brussels Regulation. In almost all entirely domestic cases, the jurisdiction is based on the habitual residence of both spouses in England and Wales.

It may be sensible to have a straight replacement of Art 3 into domestic law. It continues the very commendable identical divorce jurisdiction across the EU where, even after leaving the EU, there will still be significant cross-border work. It has been the law since March 2001, 15 years ago, and with only a couple of issues on interpretation in narrow circumstances it has been well accepted. This is probably the EU family law which has the greatest impact on entirely domestic, national cases and law. But there are others.

An analysis is needed and quickly of what other areas of entirely domestic, national law, unrelated to any cross-border element, is within EU law and will need domestic legislation, and what then should be that domestic legislation. That work should start very soon.

None of this will happen very fast but it requires serious, wise, careful and deliberate debate and discussion to start now.

The International Family Law Group LLP (www.iflg.uk.com) has set up a special helpdesk for information on the impact on family law of Brexit.


Categories :
  • Articles
Tags :
EU_Commission2
Provider :
Product Bucket :
Load more comments
Comment by from