On Thursday 23 June 2016 the UK voted in a referendum by a fairly narrow majority to leave the EU. Family law has been part of Europe since, at least, March 2001 with the introduction of Brussels II. What will be the impact of Brexit on family law practitioners?
The referendum outcome
The UK has at least another two years of EU law continuing to apply, including new EU family laws.
The first very practical impact for practitioners in the immediate aftermath of the referendum was to examine valuations of assets in existing cases. With market instability, and forecasts of falling shares, currencies and house prices, it was crucial to pause until there was some stabilising of the markets and it was better known what would be the medium- and longer-term impact rather than the short-term anxieties. In many instances this continued throughout 2016 and will continue into 2017 and beyond. Some assets are more prone to international fluctuations and to market and currency worries. Some businesses have already prospered as a consequence of the referendum. Some have undoubtedly had, and will continue to have, difficulties. Practitioners must be alert to valuations and the other economic impact on their clients and market, valuation and price fluctuations as a consequence of the UK’s departure from the EU.
It should mean that family law services to EU residents (but not UK residents) become cheaper as VAT would not be payable. Currently, VAT is payable by a EU resident. It’s reasonable to anticipate that upon departure this will revert to only payable by UK residents.
There are no indications that any EU laws will come to an end before the UK leaves the EU. Practitioners should therefore proceed on the basis that existing and indeed some new EU laws will continue to apply until the very eve of departure. Nevertheless with huge care and caution and in situations where EU laws have gone against previously established national laws and practice of England and Wales and seem to produce unfair results, there might occasionally be instances where a less strict approach is taken. This may occur when it is clearer what will be the various replacements.
Nearer the date of departure, there will need to be transitional provisions about proceedings underway at the point of departure.
The impact of the referendum result on family law is significantly reduced and ameliorated because there are already many existing international laws from The Hague covering similar ground. Some EU laws are specifically modelled on the Hague laws, often with additional elements applicable within the EU. Leaving the EU will mean the UK placing greater reliance on the Hague laws. This has the significant benefit of the UK being part of a global legal community rather than separate distinctive laws applying to one continent. It should also give a boost to Hague laws e.g. in respect of the Hague 2007 Maintenance Convention, being introduced in more countries around the world.
Hague Convention legislation will provide adequate substitutes for the following:
• EU Maintenance Regulation in 2007 Hague Child Support and Maintenance Convention
• EU Brussels II recognition of children orders in 1996 Hague Child Protection Convention
• EU Service Regulation in Hague Service Regulation
• EU Taking of Evidence Regulation in Hague Taking of Evidence Regulation
• EU Legal Aid Directive in Strasberg 1997 agreement
Many other aspects are already covered satisfactorily in domestic legislation e.g. recognition of foreign divorces.
Where the EU is continuing to introduce new laws e.g. the update to Brussels II, the UK has decided to opt in so such laws would come into force before the UK leaves the EU. To do otherwise would risk leaving the UK in legislative limbo, where the rest of Europe has a newer version of a particular law while the UK is still following the previous version.
These are probably the primary areas for resolution:
Divorce forum criteria
Between the UK and all other EU member states, it is a race to court, the first to lodge proceedings. The winner secures the most advantageous place for the proceedings irrespective of any relative lack of connection. It discourages mediation, alternate dispute resolution (ADR) and reconciliation. It is arbitrary and favours the party making the break in the relationship and the financially wealthier spouse. Between the UK and all non-EU member states forum is a matter of which country has the closest connection with the family. It is more discretionary and flexible; the race to court creates some certainty but at a significant cost to the rest of the case and resolving matters. To maintain two different forum criteria (EU and non-EU) would perpetuate two different conflicting systems. There are some organisations, including some which are supportive of mediation and ADR, who nevertheless argue to retain the race to court. Many of us are calling for the end to this arbitrary and discriminatory race and to create one closest connection, forum law between the UK and the rest of the world.
This is in Article 3 of the Brussels Regulation. It will need to be put into domestic divorce law. It will probably bear some significant resemblance to the existing law, for continuity and familiarity.
EU Maintenance Regulation
This deals with reciprocal enforcement and recognition of needs based orders around the EU. It has had many problems in practice. Across the world, as distinct from the EU, there is the Hague 2007 Maintenance Convention. From mid-January 2017 the USA is a signatory. It is expected to be increasingly in force around the world. There’s little good reason to retain the difficult EU law as the Hague will be an adequate substitute.
In respect of child abduction in the Brussels Regulation, the UK already leads the way in a strict enforcement for the summary return of children. There are the 1980 and 1996 Hague Conventions. Although the Brussels Regulation is being updated, the UK is already ahead of these changes. It’s not clear what overall benefits would come from retaining the Brussels Regulation.
Recognition of children orders
Recognition of children orders around Europe is covered by the same law but there is now the 1996 Hague Convention, recently entered into by the UK. This covers fairly similar ground.
Public law children matters
A number of local authorities have argued that they would like some continuing EU reciprocity for the return of children in local authority care in England to the countries with which they have a close connection, including Eastern Europe. There could be a limited reciprocal arrangement of EU law which may be sufficient on a transitional, fixed term basis.
There are other areas which are being considered but these are primary. The above can only be a generalisation of the arguments on both sides. In any event many of these need reciprocity which carries real political issues
Adopting the acquis
One option would be to incorporate into national law all existing EU family laws that prevailed at the date of departure from the EU. Debate about alternative options could wait and should not be rushed. This placing of all EU law, known as acquis, into English domestic law seemed to be indicated by the Prime Minster in her speech on 2 October 2016 although no further clarification has been given and her remarks were in the context of the preservation of the rights of workers and others which is presently enshrined in EU law.
Whilst this is appealing for simplicity, convenience, avoidance of any substantive primary legislation and the natural anxieties about a rushed reform, it has several real disadvantages:
• The UK would find itself with laws which were increasingly out of date where the EU had introduced more up-to-date laws between member states.
• It does not solve the need for reciprocity laws directly with EU member states.
• In areas where there is significant criticism of certain EU laws e.g. race to court, it makes no sense to introduce those laws within national law.
• Controversial areas have been debated between practitioners and in reported cases over several years and the opportunity should be taken before the UK Parliament of reform through primary legislation.
England and Wales in a global family law leading role
It has been written that the issues which family law faced within the EU were a microcosm of the UK relationship generally; an acknowledgement of the historic, commercial and cultural closeness with Europe yet real anxieties about the direction, laws and ambitions of the EU. Family law will be part of the exit process. It will be a period of much change for the country including for family law and family lawyers.
Whatever happens about movement of people within the EU after UK’s departure, England and Wales remains two of the most international jurisdictions in the world, with many international families from throughout the world living here and many families from England and Wales living abroad. There will still be a huge need for international family law, and for practitioners with experience of international aspects. It may be that the laws emanate from the Hague rather than Brussels but many will seem fairly similar, albeit having a global reach rather than separating the legal globe into the EU v non-EU.
This is the time and opportunity for the UK’s family law once again to have an unfettered prominent role globally in family law. We are the original common law jurisdiction and work closely with our common-law family justice colleagues in a many countries. If we continue post-Brexit in a way which appears as if we have not really left the EU i.e. by incorporating EU law into national law and entering into direct reciprocal arrangements, this will be unhappily felt around the common-law world. We have many connections with countries throughout the world, apart from the common-law world and the EU. We must continue to work closely with the EU itself and with European countries. But not at the cost of our other connections worldwide.
Brexit is an opportunity for the UK to be a force for innovation, enterprise and inventiveness in justice and fairness for international families and national families across the whole world. The EU has held back the UK in a number of respects in the family law dimension and we should not try to continue with these EU family laws as part of our national law.
The UK can and now should look forward to working with countries around the world to develop the best possible family law and family law practice for the better outcomes for international families and their children.
About the author - David Hodson
David Hodson OBE MICArb is a family law dispute resolution specialist who deals with complex family law cases, often with an international element. He practices in London and is a partner and co-founder of The International Family Law Group LLP.
He was given the OBE in 2014 for 'services to international family law'. He is a visiting professor at the University of Law, giving keynote lectures and contributing to the development in the education of family law. He has written and spoken extensively on family law including many conferences abroad.
He is the editor and a primary author of The International Family Law Practice, (Jordans 5th edition, January 2017), the leading textbook on international family law. In 2011 he received the inaugural Jordans Family Law Commentator of the Year.