4 MOST IMPORTANT effects of BREXIT on Divorce and Family Law disputes concerning Ireland and the UK

 

Summary:

1.         Family law disputes with an EU law angle will become less clear, more complicated and take                 longer to resolve
2.         Child abduction cases taken under the Hague Convention are unlikely to be as severely                        affected and the emergency provisions and urgency of these non EU law elements will not be               affected by Brexit
3.          We are only at the beginning of this process and it is probably too early to tell how things will                 end up

MOST IMPORTANT 

4.          If you have a family law/separation/divorce/child law/child abduction issue involving the UK or                possibly relating to persons living in Britain or if you live there then you should seek legal                      advice immediately and see whether it is in your best interests to move your case on asap.

 

Contact us for advice

 

Keith Walsh                    keith@kwsols.ie

Solicitor, Mediator, Collaborative and Family Lawyer.

8 St. Agnes Road,  Crumlin Village, Dublin 12, D12 VR64,

Consulting rooms, Pembroke Hall, 38/39 Fitzwilliam Square, Dublin 2. IRELAND

 

Tel:   00 353 1 455 4723

 

W:     www.kwsols.ie

Full article below:

 

As the Houses of Parliament in London yesterday debated the EU Withdrawal Bill, we recap the likely effect of Brexit on Divorce and family law disputes for Ireland and other EU countries.

 

The stated aim of the European Union (Withdrawal) Bill 2017-19 is to:

repeal the European Communities Act 1972 (ECA) on the day the United Kingdom leaves the European Union
end the supremacy of European Union (EU) law in UK law and convert EU law as it stands at the moment of exit into domestic law. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU.
enable domestic law to reflect the content of a withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU.

The most recent statements of British policy in relation to Brexit and Family Law are contained in two documents published in August 2017:

Providing a cross-border civil judicial cooperation framework - a future partnership paper; 22nd August 2017, Department for Exiting the European Union

The British government emphasises the importance of continuing some system of common rules after Brexit – ‘Building on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems.’ They go on to point out that:

‘citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now.’

 

In relation to family law, the British government recognise the importance of clarity and the importance of predictable laws which can be implemented in an expeditiously:

 

‘The world is more interconnected than ever and families increasingly come from or reside in more than one country – there are approximately one million British citizens living in other EU Member States and some three million EU citizens living in the UK. When things go wrong, families need to know that they will be able to resolve disputes in a clear, predictable way, without undue delay.’

 

Comment:       In spite of the objective of the British government for clarity and certainty, it is far more likely, as set out below that Brexit will result in lack of clarity and confusion in the area of family law due to end of the current Brussels II system of lis pendens where the first party to properly issue and serve divorce proceedings will obtain jurisdiction. It is more likely that a forums conveniens approach will instead be introduced leading to technical disputes about which country’s court is the most appropriate to deal with the dispute. Only when this jurisdictional dispute is resolved, costing precious time and money, can the parties proceed to deal with the main issues.

 

 

‘The UK is clear that international civil judicial cooperation is in the mutual interest of consumers, citizens, families and businesses in the EU and in the UK. With this in mind, we are seeking a close and comprehensive framework of civil judicial cooperation with the EU. That framework would be on a reciprocal basis, which would mirror closely the current EU system and would provide a clear legal basis to support cross-border activities, after the UK’s withdrawal.’

 

Comment:       The difficulty with this approach from the British government is that the EU may not decide to reciprocate leading to delay and confusion. The EU position may very well be – if you want the same system as is currently in place, then you should not leave the EU.

 

 

The British set out the principles that should apply to the winding down of the current relationship if no agreement can be reached and they state:

 

 

‘Avoiding disruption and providing legal certainty is our guiding principle in negotiations on separation issues.’

The UK believes that agreeing high-level principles that articulate clearly the  approach to separation issues, should there be no future agreement in this area, will provide legal certainty and enable a smooth, orderly withdrawal.
They set out the following principles with the aim of ensuring orderly completion of ongoing cooperation, so that citizens, consumers, families and businesses involved in a dispute continue to have a clear, predictable, legal framework for the resolution of that dispute
legal certainty is maximised to the benefit of citizens and business by ensuring that their properly negotiated arrangements are respected;
good administration and effective access to justice is ensured; and
operational disruption to judicial authorities is minimised.
In response to the principles stated in the EU position paper (from 13 July 2017), the UK proposes the following general approach.

Applicable law: the existing EU rules governing the applicable law for contractual and non-contractual obligations should continue to apply to contracts concluded before the withdrawal date, and in respect of non-contractual liability, to events giving rise to damage which occur before withdrawal date. This will be necessary to avoid uncertainty or confusion as to which rules apply, which could cause disadvantage to families, businesses and individuals

Jurisdiction: the existing EU rules governing jurisdiction to determine disputes should continue to apply to all legal proceedings instituted before withdrawal date.

Choice of court: where a choice of court has been made prior to withdrawal date the existing EU rules should continue to apply to establishment of jurisdiction, and recognition and enforcement of any resulting judicial decision, where a dispute arises to which such a choice applies, whether before or after withdrawal date.

 

Recognition and enforcement of judicial decisions: the existing EU rules governing recognition and enforcement of judicial decisions should continue to apply to judicial decisions given before the withdrawal date, and to judicial decisions given after the withdrawal date in proceedings which were instituted before that date.

 

Judicial cooperation procedures and requests for information: judicial cooperation procedures and requests for information within the European Judicial Network in civil and commercial matters which are pending on the date of withdrawal should continue to be governed by the existing EU rules. The UK agrees that there is a need to identify the appropriate procedural stage that has to have been reached for the procedure to continue in accordance with those rules.

 

References to ‘judicial decision’ in this approach includes reference to authentic instruments formally drawn up or registered, and court settlements approved or concluded, as appropriate.’

 

Enforcement and dispute resolution - a future partnership paper; 22nd August 2017, Department for Exiting the European Union

This paper makes it clear that the Court of Justice of the EU will not function as the final appeal court for disputes and its future decisions will not bind the UK. A variety of other alternatives are suggested, none of which appear that attractive to those outside Britain eg models of arbitration, overseeing committees etc. The paper is silent on the effect of EU law made in the future on Britain and how it would fit into the enforcement and dispute resolution architecture.

 

As Resolution point out ‘if we [the British] are no longer members of the EU, we will have no direct say in how EU law develops in this area.’ and ‘whilst there may be certainty in respect of existing decisions and for those involved in existing proceedings, the opposite is true for any families who must embark on proceedings after we leave the EU but before a bespoke treaty is in place.  In that situation, they will be left in limbo’.

Comment:       Unfortunately the British position as articulated in their recent policy papers does not provide a huge amount more clarity than was previously the case. The position of family lawyers in Ireland and the UK (Resolution) would be that in the area of family law - EU law should continue to apply in the UK on the basis of full reciprocity and the UK should be bound by the decisions of the CJEU, however that is not the stated position of the British government.

Contact us for advice

 

Keith Walsh                    keith@kwsols.ie

Solicitor, Mediator, Collaborative and Family Lawyer.

8 St. Agnes Road,  Crumlin Village, Dublin 12, D12 VR64,

Consulting rooms, Pembroke Hall, 38/39 Fitzwilliam Square, Dublin 2. IRELAND

 

Tel:   00 353 1 455 4723

 

W:     www.kwsols.ie