Should we stay or should we go now?

The Brexit referendum takes place on 23 June. I can’t help but look at this with my “family lawyer” hat on and consider what the implications would be for my day-to-day practice and my clients, whether based in England or abroad. Many international families would inevitably be affected by changes to our laws as a result of leaving the EU.

Broadly, our family law regime, especially in relation to finances on divorce, is already very different elsewhere in the EU and so this in itself will remain unaffected (I’ll save the arguments about the merits or otherwise of how the law works for a different day). Although our own domestic laws govern our family justice system, several European Regulations form part of UK law, and some of these affect jurisdiction, cross-border recognition and enforcement in family law cases.  The growth of EU membership in recent decades has meant more cross-border relationships and so the development of law regulating this was both inevitable and essential.

London is seen as the “divorce capital of the world” at present.  If our status within the EU changes, will other countries around the world change their view of us and our legal system? Will we lose our influence and reputation within the sphere of family law?

Nowadays, with the internet and cheap flights making travel easier, we have more international couples and people setting down routes in different countries across the globe.  This means that increasingly there are arguments as to where a divorce should take place.

There are often benefits to clients to starting divorce proceedings in England, especially (traditionally) the non-working female spouse, settlements tending to be more favourable in England than elsewhere in the EU.  Brussels II Revised is an EU provision which governs what happens when conflicts arise as to whether divorce cases should be heard in England or elsewhere in the EU.  Presumably this regulation would fall away and we could be left with more arguments surrounding jurisdiction if we vote out, including whether cases in England and Wales are heard purely on the principles of English law.  However, EEA member states subscribe to the Lugano convention, which mirrors Brussels IIr and so this is something that we may sign up to if we were to be part of the EEA instead.

Cross-European maintenance enforcement would become less easy – we would lose the EU Maintenance Regulation (Council Regulation (EC) No 4/2009) which means that (at present) a maintenance order made in England can easily be registered in another EU member state.

Similarly, we would lose the measures designed to protect victims of domestic abuse and ensure cross-European enforcement of domestic violence orders, leaving vulnerable people at risk.

Brussels II R also provides for recognition and enforcement of parental responsibility judgments across European member states.  This would fall away if we exit the EU and so enforcing PR orders made in the UK would depend on us forming separate agreements with other countries.  Likewise, judgments made in other EU countries would not automatically be enforceable in England.

Whilst European regulations regarding child abduction would fall away on a “no” vote, the Hague Convention would remain in place, and indeed is in place worldwide.  However, we would be left with less robust cross-border enforcement and protection, particularly in cases of child abduction.    Under EU law at present, the court that has jurisdiction in children proceedings is the one in the country where the child lives.  Without these laws in place, there is a risk of uncertainty and conflict, longer proceedings and inevitably higher costs for the client.

The enforceability, structure and treatment of pre-marital agreements under English law are heavily influenced by EU regulations.  A couple can elect where they can get divorced and even what country’s maintenance regime will be used, as part of their own bespoke pre-nup.  Thought will need to be given about whether these considerations are still relevant and if so, how they should be applied.

There are definite benefits to being part of Europe and having access to the laws currently in place across the EU, for those experiencing family law issues, especially international clients.  Leaving the EU would mean we no longer benefit from a pan-European framework covering important matters such as maintenance enforcement and child abduction.  Whilst changes in the law as a result of Brexit may lead to more work for lawyers, this will inevitably lead to greater expense to clients.

Flexit* would see us taking away from, rather than progressing and developing, our family law system.  If we do vote to leave, we will have about 2 years to make arrangements for withdrawal from the EU, so the changes won’t happen overnight.  However, it would seem optimistic to think that we could make all the necessary amends to our current legislation, given how long it takes for a bill to work its way through Parliament at the moment (the second reading of the No Fault Divorce bill has already been delayed).  How will our already-pushed family justice system cope?

Our family justice system already needs significant modernisation and we are crying out for more politicians passionate enough about the cause to back family law reform.  To me, Brexit seems like a giant leap backwards for family law, at a time when we really need to be taking many steps forward, quickly, down a number of different paths. On the other hand, perhaps this is the perfect excuse for an overhaul of family law in England and Wales?