Brexit & Family Law (Fl-Exit!) - In, Out, Shake it all about

If the first week is anything to go by, I suspect many of us may tire pretty quickly of what is likely to be a long run in to the Brexit referendum on 23 June. When mulling over whether to vote in or out some will analyse the competing arguments very carefully. Some will be persuaded and others put off by the stream of politicians and commentators lining up to give us their views. Many will no doubt go with their gut feeling on what’s best in terms of their personal or business interests.

Whatever the result, the decision will have far-reaching political and economic consequences. It will also have significant legal consequences, including for those who are having to deal with divorce or other family law issues. So what are the key points to be thinking about when it comes to “Flexit” - family law exit?

England is often billed as the divorce capital of the world. We are considered to be one of the most generous jurisdictions for those making a claim for maintenance or assets, with a flow of high profile, high value cases coming before the courts here. The wealthy will more often than not have some kind of connection to one or more European countries, whether that is a holiday home in Spain or international business interests. But with freedom of movement of workers throughout the EU it’s not just the well-off who can find themselves dealing with the foreign connection. Couples from a broad spectrum of society are living and working here and one or both may have their roots elsewhere.

The influence of Europe on how these family law cases are dealt with is considerable. There are complex rules on where divorce proceedings can be started where there is a choice between one or more countries. Where, for example, a French couple is living here they could have the option of divorcing here or in France. The financial outcome will be very different and because the first court involved gets to deal with it there is often a race to issue the proceedings.

There are rules for recognising and enforcing orders between the EU countries. For example, a maintenance order made in Italy can be enforced in England without the need for any further investigation. A couple can choose in a pre-nup where maintenance claims are dealt with (and the definition of maintenance is wider than just monthly payments - it can include a cash payment in lieu of maintenance) and that could be in a different country to the divorce itself.

There are also rules dealing with arrangements for children and an exit could mean losing some provisions such as the ability to transfer a case to another country within the EU if that’s in the child’s best interests.

If we do vote “out” some areas of family law will not be affected. The Human Rights Act will still apply. So will the Hague Convention which ensures that as a general principle an abducted child has to be returned to the country he or she was taken from and any decision about the long term position dealt with there, although aspects of cooperation and enforcement within Europe in these cases might be less effective.

Even if we do come out, we might decide to join the European Economic Area (EEA), like Norway, meaning that we could sign up to some provisions that are equivalent to existing ones - a kind of halfway house if you like.

Finally, even if the vote is “out” there will be a two year transition period. There would be a lot to do in that time. So much of our family law procedure is based on our membership. This will all need to be reviewed, with forms and court rules being re-written and that comes at a time when there is already a great deal of pressure on the family justice system, with the sweeping legal aid cuts of 2013 resulting in more people having to represent themselves and doing their best to understand the way it all works.

Expert legal advice is essential where there is any international element in a family case and speed can be of the essence. If we end up leaving the EU there will be an added layer of complexity.

Nigel Shepherd
Partner