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Cutting Off From the Continent

View profile for Eileen Pembridge
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Few people realise, perhaps, just how intertwined our domestic family law has become over the years with international law and particularly EU law (in which we have been enthusiastic participants). With the increase in marriages and relationships between people of different nationalities and residences and the movement of partners and their children around the globe it has been necessary to continually provide rules for access to courts when disputes arise and other rules for enforcement abroad of orders once made in this jurisdiction (England and Wales for the purposes of family law).

The law and procedure in relation to the enforcement of English financial orders abroad and of overseas orders in England is spread over a patchwork of regulations, statutes and conventions. In any particular case there may be one or more specific instruments that apply both between the relevant countries and to the type of order in question.  Within the EU it is EU Regulations that govern enforcement of orders made under English statutes

Now as we learn that Brexit process will start by the triggering of Article 50 on 29 March lawyers have to give thought to what will be lost when we exit the EU and what will replace it.

Today a House of Lords Select committee has published the result of its first consideration of how family law will be affected and thus the personal lives of adults and children here and with connections in Europe. Its report is very clear that the ‘promised Great Repeal Bill will be insufficient to ensure the continuing application of the convention known as Brussels IIA and the Maintenance Regulations’ and that ‘there is no known domestic legal mechanism that can replicate the reciprocal effect of the Rules’—but that the government ministers have not yet acknowledged this let alone started to address it.

It is technically possible to fall back on the old ‘common law’ rules which have not applied in the European context for over 30 years, but this would be ‘a recipe for confusion, expense and uncertainty’. Yet if the EU framework of family law is to be maintained post Brexit to avoid chaos for mobile families there will inevitably have to be oversight by the Court of Justice of the European Union (CJEU) –a body against which the government has often railed and from which it wants to get away.

So it is unclear how in future post Brexit how a person with an English maintenance order against their former partner for themselves or their children  will be able to enforce if the payer is living elsewhere in Europe—or how British expats or foreign nationals living in the EU could enforce foreign maintenance or property orders in England.

Likewise child arrangements within Europe are likely to be fraught with difficulty—in an era when families move frequently and children need to keep in touch with absent parents-- if contact orders will not be automatically recognised.

For those negotiating a prenuptial agreement in England with a national of an EU state the issue of jurisdiction will be tricky and intentions to apply the law of a particular state may not be effective.

We are being warned that a huge amount of legislation will need to pass through Parliament to provide for life post Brexit, and with the government’s emphasis on trade the issue of family law will doubtless not figure very high—yet the implications for family life and justice of the ‘cliff edge’ are extremely worrying.

The House of Lords committee concluded its report by calling upon the government to publish a coherent plan as a matter of urgency and stated …’We are left unable to discern a clear policy’….sound familiar?