Published: 30th June 2016
On Friday 24th June 2016, the nation awoke to the – for many, rather surprising – news that the UK had voted to leave the European Union. The result of the EU referendum has caused a great deal of uncertainty and confusion as to how the UK will cope with its decision to leave the EU.
With the family courts already struggling with the sheer volume of casesand the rising number of litigants in person, how will Britain's impending departure from the EU effect family law?
The Bar Council made its opinion on Brexit clear in a recently published report highlighting the beneficial impact that EU laws have had on UK family law, which are now likely to change following the country's decision to leave the EU. The report also highlighted the strain it would have on the family courts, saying: '[Brexit] would be particularly difficult for the English family courts to cope with, at a time when legal aid has been greatly reduced in this field and many more litigants are not legally represented and the family courts are undergoing and/or adjusting to major structural changes.'
There are numerous areas of family law that would be affected by our decision to leave the EU. Jurisdiction on divorce proceedings is uniform across the EU and has generally been recognised as being successful; a new national law would be required to replace the current EU law, with many experts suggesting that it should remain as close to EU law as possible. Maintenance proceedings are also regulated through the EU Maintenance Regulation, which was brought in by the 2007 Hague Maintenance Convention.
International child law would also be affected, especially laws involving child abduction. One area that might benefit from England and Wales leaving the EU would be marital agreements. Family law professionals in England and Wales have often criticised the EU for imposing marital agreements without any independent legal advice, which has sometimes led to complications in the family courts. Leaving the EU could possibly allow proposals put forward in February 2014 by the Law Commission to be implemented, with England and Wales reinforcing the importance of independent legal advice as a way of overcoming issues such as gender discrimination.
Resolution have also had their say on the result of the EU referendum, with Resolution Chair Nigel Shepherd saying that although it is too early to understand the full implications for family law ‘what is clear is that we are entering a period of great uncertainty. Like most areas of legislation, family law in the UK is currently intrinsically linked to that in other jurisdictions.’
‘We won’t know yet what withdrawal from the EU will mean for measures like Brussels IIa, which provides for uniform jurisdictional rules for divorce proceedings; or maintenance arrangements, which are currently regulated throughout the European Union. It’s unlikely that the implications for family law will be a priority for the government, and it’s a distinct possibility that any currently planned or envisaged reforms to family law will be put on hold.’
Mr Shepherd also noted that if the ‘short-term impact on the financial markets turn[s] into a longer-term economic issue then it will affect people’s personal finances – things like pensions, investments and house values. These will all need to be taken into consideration when dealing with financial matters upon divorce.’
Whatever the outcome, he assures that ‘Resolution will continue [to] work with the government and others to both influence the future of family justice, and provide our members with the support, information and resources they need in order to deal with the post-referendum landscape.'
Clearly none of us can be sure what the impact of Brexit will be and according to some experts the cessation of our formal relationship with the EU may take up to two years to be implemented fully. Perhaps, as with any relationship breakdown, the best course of action is for a period of consideration and reflection to ensure the best possible outcome!
If your relationship is on the verge of breakdown and you are considering divorce or separation then
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