Brexit and Family Law

As the pound continues to fall, markets are in turmoil, Easyjet shares fall by 18% and Barclays and RBS share trading is temporarily suspended Britain braces itself to withstand the wide ranging implications of Brexit which it is said for some at least, are only beginning to be understood.

Despite the calming words of Bank of England Governor, Mark Carney, and Chancellor of the Exchequer, George Osborne, that Britain is well prepared for every eventuality, we all wonder just how long and how messy divorce from the EU is going to be. Does Britain get to keep the house and the bank account and spend time overseas as it picks and chooses?

As we all have some anxiety about job losses, a fall in house prices, rises in interest rates and indeed who is going to negotiate the divorce on our behalf we wonder just how far reaching the implications of Brexit are going to be. What legacy have we left for our children who are by and large outraged by what we have done. Those leading the campaign to leave seem inclined to let the dust settle, to mediate rather than litigate in the hope of achieving improved communication, a better understanding of the issues facing one another and a compromise.

Resolution (an organisation of over 6000 family lawyers) indicates that “it’s too early to know the full implications for family law, but 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”

Less calming than Mr Carney perhaps but the Law Society’s report “The EU and the Legal Sector” published in October 2015 sets out the main areas of family law affected by Brexit:

Divorce

Our divorce petitions (applications) comply with the requirements of Brussels IIa. Brussels IIa is EU legislation. The provisions set out in Brussels IIa are relevant to many aspects of children law. The current provisions of Brussels IIa encourage a race to issue a divorce petition in the EU country likely to give you the most favourable outcome. We have always retained however our primary divorce legislation set out in Matrimonial Causes Act 1973 and a fault based divorce system.

Brussels IIa and the Hague Convention

These are pieces of legislation which provide an international mechanism for children wrongly removed from the country where they usually live to be returned. They deal with recognition and enforcement of orders made in this country and overseas. Not every country in the world is a signatory to these pieces of legislation but the EU member states are signatories to Brussels IIa and the Hague Convention.

Maintenance

People have increasingly moved overseas to work in recent years. The EU laws relating to recovery of maintenance and which country can determine disputes, help ease recovery of money overseas from those living and working in member states.

Domestic Violence of Harassment

An order in one member state of the EU can be recognised in another EU member state.

It is likely that England and Wales will continue to be highly recognised worldwide for family disputes. The Children Act 1989 is a piece of legislation that has been emulated in other countries. In the short term then, we return to individual anxiety about pensions, investments, house values and jobs in priority to changes in the law. Resolution comments, “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”. 

For more information on any of the issues above, give one of our Family Law experts a call on 0113 201 4900 for a free, initial consultation.

Gabbie  Clasper

Written by

Gabbie Clasper

Head of Family Law

Gabbie has over 20 years’ experience in family law. She has expert knowledge in complex issues including financial aspects following divorce; pre and post-nuptial agreements; cases with an international element; and civil partnerships. Gabbie is regularly instructed by clients based across the country and abroad. She...

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