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Uncertain future for family law after Brexit

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Uncertain future for family law after Brexit

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Cross-border divorce cases face uncertain post-Brexit future, says Clayton Miller

The vote to leave the EU has left the future of family law in a state of uncertainty. The changes will take at least two years to come into effect, however, so for couples getting divorced within this time frame, the laws will remain the same. But what could be the future of family law in the UK?

The Brussels II Revised regulation has been responsible for the ‘race to court’ phenomenon, which happens when a separating couple has the option of multiple courts to which they can take their divorce. For instance, an English couple living in France has the option of taking their divorce to either France or the UK. The first partner to file for divorce is the one who gets to choose in which country the divorce is then settled.

The benefit of this for the financially weaker spouse is that the UK courts are arguably the most generous jurisdiction in the world for spousal maintenance. In the case of a divorce where there’s a significant income difference, it benefits the spouse who earns less to file for divorce in the UK, where prenups are taken as guidelines rather than legally binding contracts, and vice versa for the spouse earning more, who will want to file for divorce in France.

It is uncertain whether the trigger of article 50 will dissolve this law, or whether the UK will have to quickly push through a similar bill to keep the law extant.

After Brexit, a leading London lawyer warned that this could result in millions of dollars being wasted on international custody battles.

The Brussels II regulation is undoubtedly one of the least family-friendly laws imposed upon the UK by the EU, encouraging custody battles and swift action rather than mediation.

Without EU rules making it clear in which jurisdiction the divorce falls, a lot of money will be spent deciding which jurisdiction is appropriate. Without free movement between the UK and the EU, family lawyers in London will find themselves fighting international custody battles, rather than dividing assets and allocating childcare.

Of course, all this is speculation. Predictions and studies pre-Brexit foretold that the plebiscite would be ‘disproportionately harmful for UK law, but will it?

When article 50 is eventually triggered, the best thing the UK can hope for is that the courts will use it as a chance to modernise family law. The dissolution of the EU laws holding our legal system in place will leave family law open and vulnerable parties, such as domestic abuse victims or abducted children, exposed.

Although the Hague Convention on international recovery of child support will step into place when Brussels II Revised has gone, the UK must use the next two years wisely.The time can be used to draft new legislation that keeps the best of Brussels II, but modernises aspects to make the laws more supportive towards families. Much hangs upon the wider decision of whether the UK still has free movement within the EU – something that is far from certain.

Clayton Miller is a founding partner of KMJ Solicitors and dual-qualified in Australia and the UK kmjsolicitors.com

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