Published: 20th October 2016
Following this summer's unexpected EU referendum result, The House of Commons Justice Committee have launched an inquiry into what implications Brexit will have for the justice system.
The Justice Committee are welcoming experts from all different areas of law to write to them with their concerns and recommendations in order for the Justice Committee to then present their findings to the government. The aim is to assist with the negotiation process when the UK does eventually leave the EU.
Within EU law, there is a significant body that currently deals with cross-border legal disputes, such as family, civil and commercial matters, which is covered by the ‘Brussels Regulations’.
After the UK leaves the EU, the legislation will no longer automatically apply to the UK, even though much of the international law that is currently in place will remain the same.
Something that would initially be affected would be the UK courts having jurisdiction to deal with some cross-border disputes and also the enforceability in other member states of English and Welsh judgements. This would affect family law because jurisdictional legislation often provides benefits for family related cases.
The EU regulations do not determine the result of a case, but do currently decide the jurisdiction that a claim relating to family law is to be heard. However, there have recently been regulations that have decided on which jurisdiction should be considered for divorce and the division of property. The jurisdiction for divorce is based on the habitual residence of the spouses, but if they share a common nationality there can be additional complications.
The system that is currently in place in England and Wales for financial claims on divorce procedures is typically generous for the claimant, which is why many people making the claim prefer to litigate in the UK, particularly in London – the co-called 'divorce capital of the world'. Choosing to divorce in England and Wales, and therefore using the system to gain more money from the divorce, can affect the proceedings negatively, creating more tension between parties and dragging the rest of the family into further turmoil.
When the UK does leave the EU, it is possible that the European laws that are currently in place will remain. There may be changes made on a case-by-case basis, meaning that there may well be changes in UK family law, depending on the circumstances. Regarding law on children, Brexit is unlikely to have an impact.
The Justice Committee is inviting experts and affected parties to submit their recommendations in writing by Friday 11th November 2016 and would like submissions to contain no more than 3,000 words. There will then be an oral evidence session that will generate a report designed to assist the Government’s negotiations of Brexit.
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