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Brexit or Bremain? Impact on family law

It is unlikely to have escaped your attention that the UK has a huge decision to make on 23 June. Should we remain part of the European Union, or should we leave it? The question is arousing intense feeling on both sides of the debate, and polls are suggesting that the nation really is divided. We thought we’d take a look at the impact of a leave vote on people going through divorce and separation, current and future.

The first thing to say is that we work in a highly European environment in Cambridge, with plenty of families whose heritage crosses borders. The family law that affects these people is often highly influenced by Europe. Additionally to those whose families are internationally European, many other families have business or property interests elsewhere in the EU.

Currently the framework of European law covers us all, and regulates matters such as where a cross-border European couple can get divorced, and which court should have jurisdiction in the event of a dispute. It also ensures that when the terms of a divorce are decided in one European country, they can be enforced in another where there might be property or business interests. Although the laws that apply to divorcing couples in different European countries are not the same, one can at least be sure that a final settlement can be obtained wherever the divorce happens, as other European countries will respect and assist with carrying out any order made.

There is further cooperation between European courts with regard to cases about children. In recent times, those working with children have developed close working relationships with professionals in other European countries that enable us to deal with children of parents whose heritage is from elsewhere in Europe effectively, for the promotion of the child’s best interests. It is possible to transfer a case to another European country to be dealt with if the child’s welfare demands it. These professional relationships and transfer provisions might be affected by an exit. What wouldn’t be affected is the Hague Convention, which operates independently of the EU and ensures the swift return of abducted children to their country of origin.

This week, the Bar Council – the body that represents England’s barristers – has produced a full report that considers the effect of a potential exit from Europe on the laws of our country. It is comprehensive across all areas of law and makes interesting reading, so here is a link to the executive summary.  In terms of family law, the barristers say this:

In family law, EU measures have had a significant impact that the Bar Council considers beneficial and that is still growing. Obvious advantages include having uniform jurisdictional rules in all or most Member States for divorce proceedings and for maintenance proceedings; having a system of summary enforcement in the courts of all Member States of orders under the Maintenance Regulation; and likewise as regards orders for contact between parents and children made in the courts of each Member State. The terms of the UK’s current membership of the EU have allowed it to “pick and choose” which measures in this, as in other civil and criminal justice fields, it wishes to take part in, and which not. Those that it has opted into, are generally seen as useful by practitioners in the field. A major change, or withdrawal from these EU instruments, would risk disruption and confusion. That could be particularly problematic at a time when (a) the availability of legal aid has been greatly reduced in this field, resulting in a real increase of litigants who do not have the benefit of legal advice or representation; and (b) the family courts are undergoing or adjusting to, major structural changes.

From this analysis it seems that the impact of a leave vote would be felt by all of those using the family courts, in terms of added pressure on the courts from the changes necessary, rather than just those with European connections themselves. Unfortunately, legislation on private family law matters is not generally seen as a priority for government, and therefore it might be considered likely that we are not towards the front of the queue for the new rules that will need to be made within the two-year period of exit negotiations. The prediction of the risk of ‘disruption and confusion’ is worrying indeed for families who need to access the courts.

Family law is simply one cog in the legal wheel, which is but one single wheel on the juggernaut of government. There are many considerations when working out which way to vote on 23 June. One thing is certain: this is a hugely important moment in our history. If you have a vote, we’d like to urge you to use it!

If you have any questions about the effect of EU law on your family circumstances or any other family law issue, please do give us a call on 01223 443333 and make an appointment to speak with Sue, Simon, Adam, Gail or Tricia.

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