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Jean-Yves Gilg

Editor, Solicitors Journal

Brexit is not in the interest of the family lawyer

Brexit is not in the interest of the family lawyer


Since 2001, when Brussels I regulation arrived on our shores as the first attempt to synchronise laws between EU countries, family lawyers have tended to greet each new EU convention with some hesitation and suspicion.

So, with a referendum on the EU on the horizon, it is a good time to consider the impact on family law issues in the event of Brexit, which brings into consideration what benefits we have and what we could lose.

Despite our EU membership, there are still differences between UK family law and that of Europe. The fundamental difference is that European law is based on property regimes with the intention to keep property in the family, whereas English law recognises the individual's right to their property and to do what they like with it. So far as divorce law is concerned, this means the English court has the power to transfer property or redistribute capital, which its European friends do not. This is why London is widely regarded as the divorce capital of the world. The outcome of the referendum will have no impact on this key difference.

Currently, a two-tier system of law exists: that for EU countries (bar the exception, Denmark), based predominantly on 'habitual residence', i.e. where the parties or children live, and one for non-EU countries (and Denmark), which comes under the old concept of forum non conveniens.

So, if we leave the EU, there is no reason to suppose that EU law will be allowed to continue and we will fall back on the old system. There are disadvantages of the EU system and injustices caused by the country where the petition is issued first - that country being the one that deals with the divorce and financial settlement - which can lead to unattractive petition races. However, the alternative, where jurisdiction is challenged because the country is not the closest country to the family, is less attractive. Take, for example, the headline-grabbing 'titanic' case of Khoo Kay Peng, the Laura Ashley boss, with costs of already £6.1m.

Where does Brexit leave the children of divorcing couples? Fortunately, some of the important child conventions are worldwide and not limited to the EU. The most significant is the Hague Convention on Child Abduction, which we will continue to be a member of whatever.

Then, there are the living arrangements for children. Under EU law, this is determined by the court where the child lives. If we leave the EU, concepts of residence, nationality, domicile, and the court's inherent jurisdiction will come back into play, with a lack of clarity and potential for conflict, as we see in the current Madonna case. The EU wins.

On enforceability of maintenance orders, the legislation dates back to 1972, and so predates our EU law and will continue to apply.

Whatever the defects in the
EU system, they are probably better than the free-for-all we
will fall back on. Brexit is not
in the interests of the international family.

Frances Sieber is a partner in the family team at Spring Law @SpringLawUK