Brexit's impact on family justice
As article 50 is triggered, Jane Keir considers the family law challenges ahead
The recent report by the European Union Committee of the House of Lords 'Brexit: justice for families, individuals, and businesses?' highlighted how Brexit will mean the loss of certain Brussels regulations which will impact the family law arena.
In particular, the Brussels IIa Regulation (BIIa) and Maintenance Regulation (MR) (regulations 2201/2003 and 4/2009 respectively) have been important for protecting UK citizens when it comes to the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.
They have combined well over the last eight years to afford a degree of certainty and order as to the member state in which divorce proceedings are begun where there is a choice of more than one jurisdiction. In short, whoever gets to the court first, wins the race.
While that can have the effect of encouraging a husband or wife to file the divorce papers before they may be entirely sure that a divorce is what he or she wants, it has put an end to expensive, and often long drawn out parallel litigation in two member states.
For many, the greater advantage, however, is that the regulations aid the enforcement of judgments in member states, with greater reciprocity and the ability to give effect to a judgment obtained outside the state where an individual may be a citizen or resident. Provisions dealing with international child abduction, for example, have been recognised as extremely beneficial.
The worrying aspect of the loss of the BIIa and the MR is that, save for the provisions of the Lugano Convention on cases involving maintenance, there appears to be no satisfactory fall-back position. All the witnesses who gave evidence to the committee were unanimous that a return to common law rules and the old forum conveniens process would be detrimental for those engaged in family law litigation given, for one thing, the family courts' already dangerously over-stretched capacity.
Paragraph 93 of the report says 'to walk away from these regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm'. We have, in effect, less than two years to underpin the benefits of BIIa and the MR into our family law system.
Many EU family lawyers are feeling less than sympathetic to the UK as we sever ourselves from the benefits of BIIa and the MR. Broaching the subject at the recent International Academy of Family Lawyers (IAFL) European Chapter meeting in Lisbon this past weekend, there appeared little evidence of reciprocity in terms of precisely how we will enforce judgments in future and guarantee even some predictability about the divorce process.
Given the report itself refers to 'three million citizens of other member states living in the UK and 1.23 million citizens living in other member states' that is highly concerning. We can only hope some reciprocity is inevitable regardless of the current mood music.
How parliament can be expected to funnel through all the legislation which will be impacted by Brexit, across all aspects of our society, in a considerably shorter period than the two-year period post 29 March 2017 is extremely difficult to see.
However, we have our chance to influence and persuade our current EU counterparts and our government as to the benefits that BIIa and the MR have afforded UK citizens and international families living here. The framing and structure of their replacements must remain our clear and overriding objective.