To leave or not to leave….that is the question. What does a vote to leave the EU mean for family law practitioners? (Part one)
England’s membership of the EU (European Union) has had a profound impact on the day to day practice of family lawyers up and down the country, from establishing jurisdiction in cross-border disputes, to the recognition of overseas orders from other EU countries. In the run up to the referendum on 23 June, it begs the question, what does a vote to leave the EU mean for family practitioners in England and Wales?
In Part one of this two-part blog I have focussed on the implications of the loss of EC Regulation 2201/2003 (Brussels II bis). In Part two, I shall focus on the EU concept of applicable law or choice of law, universal application and the EU Maintenance Regulation 4/2009.
Brussels II bis now permeates the whole of family law. This Regulation applies directly to all member states, excluding Denmark – and brings together into a single text the provisions on matrimonial matters and matters of parental responsibility (including custody and access rights). The fundamental principle of the Regulation is enshrined in Article 8 which sets out that the most appropriate forum for matters of parental responsibility is the relevant court of the member state of the habitual residence of the child. Habitual residence is not defined by the Regulation, however the guidance notes to Brussels II bis stipulate that a person cannot be habitually resident in more than one country at the same time. It is therefore highly fact specific. Article 3 sets out a complete system of grounds of jurisdiction in matrimonial matters including divorce, legal separation and marriage annulment (carried over by EC Regulation 1347/2000).
With the freedom of movement around Europe and the wave of internationally blended families, it was both sensible and practical to introduce identical divorce jurisdiction across the EU. However, Brussels II bis also introduced the concept of lis pendens i.e. when proceedings are brought in two different member states the country of the person who issued first seises jurisdiction. This was not something that previously featured in English domestic law and in fact was condemned by many practitioners as it was seen to discourage alternative dispute resolution and concentrated the parties attention on issuing proceedings simply to secure jurisdiction. The wide list of jurisdictional divorce criteria inevitably means that for international families more than one EU country may have jurisdiction giving rise to a forum race? i.e. the first to issue.
Ancillary to divorce proceedings is the resolution of financial matters. England has long been regarded as the divorce capital of the world being perceived as the most generous, particularly to the financially weaker party. In England it is not possible to issue financial proceedings until jurisdiction for divorce has been established. International family lawyers have to be alert and quick to obtain instructions to issue first to establish jurisdiction in England (or not as the case may be) to seek to secure the forum which might provide the best outcome for their clients. However, there is an unattractive element to this as it actively discourages attempts at reconciliation and non-court dispute resolution it is all about the race to issue. This has been tempered slightly by changes brought in to domestic law by the introduction of section 10 of the Children and Families Act 2014. This provides that before making a relevant family application (including an application for financial remedy on divorce and private children applications) the parties must attend a Mediation Information Assessment Meeting (MIAM), the purpose of which is to assess whether a case is suitable for non-court dispute resolution. However, I am sure many of us can give examples where lip service is paid to this!
Leaving the EU would mean that England is no longer bound by the jurisdictional divorce criteria set down in Brussels II bis. The Family Law Act 1986 would, for the reasons explained in the next paragraph, have to be amended. It could be that identical jurisdiction provisions are incorporated into domestic law with or without the imposition of lis pendens and instead impose a test based on which court is most appropriate taking all the circumstances of the case into consideration; no doubt the welfare any children will be likely to weigh heavy when considering this issue.
Jurisdiction relating to private children matters based on the habitual residence of the child is already written into domestic law by virtue of the Family Law Act 1986. It is also a feature of the 1996 Hague Convention to which England is a signatory. Under Brussels II bis, lis pendens also applies to proceedings on parental responsibility concerning the same child brought in two different member states. However in practice it rarely arises as a child is usually only habitually resident in one member state at any given time.
One very commendable feature of Brussels II bis is to ensure that a child can maintain contact with all holders of parental responsibility after a separation by ensuring that a judgement on access rights (contact) and the return of a child following abduction issued in one member state is directly recognised and enforceable in another member state provided it is accompanied by a certificate issued by the Judge of origin (Articles 40, 41). However, a very similar provision is provided at Article 23 of the 1996 Hague Convention, therefore no adverse consequences are likely to arise from England leaving the EU in this regard. Furthermore, all EU member states are contracting states to the Convention.
Brussels II bis provides a framework for the automatic recognition of overseas divorces between EU member states without any special procedure. Where Brussels II bis does not apply, the validity of an overseas divorce, annulment or legal separation is subject to the Family Law Act 1986. Section 46(1) provides that an overseas divorce, annulment or legal separation will be recognised if it is effective under the law of the country in which it was obtained and either party to the marriage was habitually resident or domiciled in the country in which the divorce, annulment or legal separation was obtained or was a national of that country at the time. As such, again, no adverse consequences are likely to arise from leaving the EU.
Brussels II bis also provides for the automatic recognition of children orders from other EU countries, which is another highly commendable feature. However, an almost identical provision is set out at Article 23 of the 1996 Hague Convention.
In conclusion, I do not consider the loss of Brussels II bis would be catastrophic for domestic family law, as comparable domestic statutory provisions or Hague Convention obligations are already in place. Further, a departure from lis pendens would conceivably prioritise a considered evaluation of appropriate dispute resolution models over a headlong dash to issue court proceedings.