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14 JAN 2019

Opinion: The UK will be ready for a no deal Brexit in family law

Opinion: The UK will be ready for a no deal Brexit in family law

iFLG partner David Hodson argues the UK is prepared and ready to leave the EU in the event of no deal in the family law context.

The UK civil service has been very busy preparing, particularly since early summer for the eventuality of a no deal. Of course, it’s strongly arguable that the preparation should have been throughout the entire period since Art 50 notice was given. It’s a foolish family lawyer who with a final hearing approaching fails to prepare for trial in the hope of negotiating a settlement. Nevertheless there has been intensive and effective activity in civil servant circles in readiness.

In my perception, having studied the various statutory instruments released by government and worked closely with government officials, I think the UK in the family law perspective will be ready if it is necessary to leave with no deal. Of course many hope that a good deal can be still accomplished. But if sadly not, then departure with no deal will now be workable, with no material prejudice in most cases to clients, and with adequate alternatives to EU laws

What will no deal departure look like in family law?

This summary note applies primarily to England and Wales; Scotland will be introducing separate measures.  Details of the various statutory instruments referred to can be supplied.

Divorce jurisdiction

This area was the most crucial because without EU legislation, we have no national law on jurisdiction for divorce, judicial separation, civil partnership and similar. The position with no deal is very simple. We will have within our own national law the same jurisdiction at present, now found in EU law. There is only one slight variation. At the moment sole domicile is not available if any EU member state has jurisdiction. From the exit day, sole domicile will be immediately available with all of the other grounds, as it was before this EU law was introduced.

This is very familiar to English divorce practitioners.  The vast majority of practitioners will not notice any change.  There will be no difference in almost all cases.

For those who say it will put us out of kilter with EU member states, we are already very different in our interpretation of divorce jurisdiction in EU law. There is a different meaning given by us to residence and habitual residence. There is a different requirement of the period of time before jurisdiction is available. Without CJEU guidance, which might well have said the English courts had been getting it wrong for the past decade, this different interpretation and approach would simply have continued.

So divorce jurisdiction will not be any difficulty on exit day if there is no deal. The vacuum has been filled by government statutory instrument.

Divorce forum: where will proceedings take place if proceedings in the UK and in EU member state

At the moment there is a contradictory approach in law when there are proceedings in two different countries: a so-called forum dispute. Where an EU member state is involved, forum is decided simply by whoever is the first to win the race to court in their preferred country. Prospects of reconciliation, mediation, negotiation and ADR are ignored and the financially weaker spouse or the one wanting the relationship to continue is really vulnerable and loses the race and therefore has the less good financial settlement. But in a forum dispute where no EU member state is involved, the forum criteria is with which country does the family have the closest connection, forum non conveniens. This has operated successfully over very many years with an established body of case law, and an intrinsic fairness as perceived by the public.  Closer connection makes far more sense than an artificial race to court.  It operates in other areas of English civil law and by many other common law countries around the world.

On exit day if there is no deal, England will adopt the test of closest connection in all cross-border cases in deciding appropriate forum. The race to issue will be no more. This will be a colossal benefit in practice to so many parties. There will be no new law to be understood because England has been continuing to operate this forum law with all non-EU cases.

Some have suggested there will be a surge in forum cases. This is unlikely. Although there are already a number of forum cases going through the courts with non-EU countries, it’s unlikely there will be masses more with EU countries. In any event there are at the moment many disputed habitual residence and domicile cases where parties are seeking to allege that although the other party may have issued first, there was in fact no jurisdiction at all. These will not be necessary if there is a discretionary forum choice.

Divorce recognition

As far as the UK recognising divorces pronounced abroad by civil courts in EU member states this is unlikely to be a problem. We are one of the most liberal regimes in our recognition of foreign divorces.

Concerning UK divorces to be recognised around the EU, about half of the EU member states are signatories to the 1970 Hague Divorce Recognition Convention. These countries will therefore automatically recognise UK divorces. It’s likely that in almost all cases the other EU countries will recognise divorces granted by UK civil courts. It’s difficult to understand why they may not, especially where they have automatically done so as a consequence of EU law. The obvious solution of course is for the EU to enter into the 1970 Hague Convention on behalf of the EU member states so there is automatic divorce recognition around Europe. It is to be hoped that they will do so but this is outside the UK control if the EU will not help in this recognition process.

Maintenance jurisdiction

On exit day the EU Maintenance Regulation will cease to exist if there is no deal. This has been an exceedingly complex piece of legislation with many controversial features. Its absence will not be missed.

One controversy has been the inability of the UK courts to deal with maintenance claims, defined by EU law as needs-based claims, if either party is relying on sole domicile. This has prevented many UK domiciliaries, who do not want divorce proceedings in a country abroad, from being able to access justice through the English courts. This will end on exit day. Government statutory instruments have set out the jurisdictional requirements for maintenance claims, similar to the pre-June 2011 position. This will be claims in divorce proceedings, Part III MFPA 1984, Sch 1 Children Act 1989 and similar.

In place of the EU law will be the 2007 Hague Maintenance Convention. The UK government has entered into this in its own right on the basis of no deal so that it comes into force on 1 April 2019, the first working day after exit day. The EU is also a signatory as is countries such as the USA, Canada and others. The UK government has described it as an effective alternative to the EU law.  Unlike EU laws, it doesn’t impose jurisdictional rules and these are set by national law as the UK government has done.

It would be beneficial if the UK government were to introduce one small part of the EU family law namely the forum of necessity found in the EU Maintenance Regulation. This is relied on for the making of pension sharing orders after foreign orders or agreements abroad. It’s a small piece of legislation which we trust the government will introduce in the next two months.

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Maintenance forum

Just as with divorce, present EU law on needs-based claims favours the race to issue.  This has had many unfair consequences.  It will end on exit day if there is no deal. It will be replaced by the closest connection forum test which is much fairer and better understood.

Recognition and enforcement of maintenance orders

This will proceed under the 2007 Hague Maintenance Convention if there is no deal. This legislation has been in place in the UK for several years and has operated to enforce UK maintenance orders abroad and foreign orders to be enforced in the UK. It is similar in a number of ways to the EU law although more collaboratively introduced. All EU member states are signatories

Jurisdiction, forum, recognition and enforcement of other financial orders

These are presently unaffected by EU laws and therefore will not change on exit day.

Children Law

Instead of Brussels II, there will be reliance in circumstances of no deal on 1996 Hague Child Protection Convention and 1980 Hague Child Abduction Convention. The UK is already a signatory and has been operating these laws over very many years with many non-EU countries. On exit day if there is no deal, these laws will then be operated with EU member states. All EU countries are signatories to both Hague Conventions.

There are a couple of detailed areas of difference which in reality only arise in very few cases. The power to trump an order refusing return of an abducted child will be lost but it is used in at most a couple of cases each year by the UK and some countries around Europe do not use it on any regular basis. The EU is producing another timetable for the return of abducted children but this is because some EU countries are incredibly slow at returning abducted children, in contrast to the UK which is one of the fastest in the world and doesn’t distinguish between EU or Hague abductions in that it always applies a fast return timetable.

There will be little disadvantage in all the circumstances on leaving EU laws on exit day if there is no deal in relation to children matters

Domestic violence

At the moment there is an EU law whereby domestic protection orders made in one EU member state will be recognised and enforced in all others. The UK government said in September 2018 that notwithstanding departure with no deal, the UK will continue to recognise and enforce all domestic protection orders made in other EU member states. This is excellent news. It is to be hoped that the EU will reciprocate and confirm that all UK domestic protection orders will be recognised and enforced around the EU. Unfortunately, nothing has been heard from the EU about this issue.

Serving court papers and taking evidence

The UK will no longer rely on EU laws about the above if there is no deal but the UK is a member of equivalent Hague laws, which have the benefit of applying with many countries around the world and not just the EU.  If no deal, the UK will simply rely on these Hague laws as equivalent to EU laws

Training

It has been said by some that there will have to be massive retraining of lawyers and judges as a consequence of leaving the EU. The above shows this is patently not the case. In almost all instances, the UK will continue to adopt the same or similar laws as at present. At most it will be adopting laws which were previously in existence in June 2011. In a number of instances it will be using laws which already apply in non-EU international cases.  Most practitioners will hardly notice that anything has changed.

Conclusion

So whilst a good EU deal, legally and politically, may be favoured, the UK should not be anxious now about leaving without a deal in the family law context. A lot of excellent hard work has been successfully undertaken by UK civil servants to put arrangements in place. In addition, a number of specialist practitioners across the UK have worked incredibly hard on these very complex and challenging issues on behalf of the family law professions. 

David Hodson OBE MICArb - dh@davidhodson.com - The International Family Law Group LLP