Since Brexit became a reality, there has been much debate about the future disassociation of the UK from the European Union. As many family lawyers know, sometimes divorce proceedings can become extremely complicated, highly emotional and often end up with a result that neither side is particularly happy with.
Obviously the hope is that the above will not apply to the Brexit divorce, but family lawyers have to consider that the loss of EU laws means that there is going to be a need for domestic legislation to replace them… and on a relatively urgent basis!
There will – of course – be certain key relevant areas that will be affected. Most importantly, is that the jurisdiction for divorce cases is governed purely by EU law. As the jurisdiction is set out in Article 3 of Brussels ii a., known as the Brussels Regulation, in the majority of domestic divorces the jurisdiction is based on the habitual residence of both parties in England and Wales.
The end of EU law will also signal the end of “Forum Shopping”. Previously, there could be a race by both parties to the Court to be the first to issue in the jurisdiction that best suited their circumstances. In the future, this issue is going to require further consideration and debate.
Under current EU law, much use is made of the 2007 Hague Maintenance Convention in relation to reciprocal jurisdiction regarding maintenance claims, and these laws are extremely helpful in respect of child abduction cases.
It is clear, therefore, that the recent vote will lead to a period of uncertainty in domestic family law. Until these issues are properly debated – and a decision is made as to the relevant domestic legislation in England and Wales that will properly replace the key areas mentioned above – we will all have to just wait and see and hope that Brexit really does become an amicable divorce.