How do I deal with Divorce or Legal Separation between Ireland and England/UK/Britain and does Brexit matter

By Keith Walsh AWARD WINNING FAMILY LAW SOLICITOR

Tuesday, 12th September 2017

Filed under: Divorce, Separation, FamilyLaw317, LegalSeparation, RecognitionofforeigndivorceinIreland486, ChildAbduction541, Sharedparenting, FamilyLawyer, bestfamilylawsolicitordublin, Brexit, BrexitandfamilylawinIrelandandBritainUK

What is the current position regarding Divorce and Family Law disputes between Ireland and the UK ? How will Brexit affect these disputes?

“A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed. In reality it is a curse restricted to the rich. Only they can afford such folly.”

Thorpe LJ of the Court of Appeal of England and Wales in Wermuth (2003) 1 FLR 1029 at 34

The folly of Brexit may, in the coming years, be visited on divorcing couples where there is an inter jurisdictional dispute involving the UK and not simply the wealthy ones but also those who can least afford it.

Contact us for advice- rest of article below 00 353 1 455 4723

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

The consequences of jurisdictional disputes in family law are different to those in civil or commercial law as:

Family law applies to the private life of individuals and to their family life. It is a far more intrusive and personal form of litigation than almost any other.
The length of time it may take to litigate a divorce or separation and its costs impact considerably on the lives of those involved. Any further complication of an already detailed and complex litigation process will adversely affect both litigants involved.
Most couples involved in family law proceedings are paying their own costs from after tax income. This is in contrast to commercial disputes where business entities can write off legal costs.
Family law involves not only financial remedies but custody and access issues and delays in commencing, progressing and completing these disputes can cause very serious harm to parent-child relationships as well as impacting on the normal development of children.
The voice of the child is often lost in disputes not about the substantive issue but disputes about jurisdiction.

The legal regime currently in place between Ireland and the UK in divorce, separation, annulment and parental responsibility is governed by Brussels II bis Council Regulation No. 2201/2003. Maintenance obligations are excluded from the scope of this regulation as they are covered by Council Regulation No.44/2001.

The Bar Council of England and Wales in their Brexit Papers dated 12 December 2016 set out the advantage of Brussels II bis and the Maintenance Regulation as follows:

Certainty about jurisdiction. Couples of different nationalities who live in different EU member states can find out relatively easily where issues concerning the welfare of children, divorce and/or maintenance should be resolved.
Ease of enforcement. Orders concerning custody, access and maintenance must be recognised and enforced in other member states.
Each member state must designate a central authority which is responsible for cross-border enforcement of orders and for the exchange of information and general cooperation in matters concerning the welfare of children.
The availability of protective measures pending resolution of disputes protect children’s welfare.

This is likely to change with Brexit. Brussels II bis deals with issues of:

jurisdiction
service
recognition and enforcement of judgments

in divorce, legal separation, annulment and parental responsibility cases in member states.

It does not deal with substantive laws but could be viewed as dealing with the more technical aspects. There is no system of applicable law in these matters.

In relation to jurisdiction in separation and divorce cases, the basic principle set out in Brussels II bis is that of lis pendens – the first in time rule. The party who commences proceedings first obtains jurisdiction and the courts of other member states must stay any subsequent equivalent proceedings until the jurisdiction of the first court has been established (by the first court).

Brussels II bis also deals with issues of jurisdiction in parental responsibility cases. There is a more nuanced approach here where the rush to issue first may not succeed in determining jurisdiction if it can be shown that there is a court in a better position to determine the child’s habitual residence other than the court where the proceedings were issued first.

What will happen after Brexit ?

As the UK will no longer be part of the EU, Brussels II bis will not apply to them. There will be an immediate issue for the UK of certainty as to jurisdiction and how (if at all) reciprocal arrangements could be put in place with the EU. The UK may choose to retain the rules of Brussels II bis but other states will not be obliged to abide by the UK’s domestic laws. This lack of reciprocity will be a huge issue for litigants and family lawyers in the UK.

The Court of Justice of the EU will continue to function without the UK whose clock will stop at the date of Brexit. Professor Rebecca Bailey-Harris, speaking at the recent four jurisdictions conference, estimated that over 40,000 items of legislation require consideration post Brexit. The Great Repeal Act will only hold or freeze the decisions to be made regarding the UK’s domestic law post Brexit. How high up the priority list will resolving family law disputes be ?

Britain may choose, although it appears unlikely, to recognise the rules set down in Brussels II bis and the maintenance regulation in relation to jurisdiction but it appears more likely that there would be a move to impose British law where possible. However this is currently unclear.

How will disputes in relation to jurisdiction involving the UK and Ireland in divorce cases be resolved post Brexit ?

In the absence of any other agreement, disputes in relation to jurisdiction will be resolved by forum conveniens which involves the court determining which jurisdiction is the most appropriate or suitable to adjudicate the issues in dispute. This litigation to establish where divorce litigation should take place would have the following adverse effects for both litigants:

it would substantially increase the costs involved
it would further delay the resolution of the substantive dispute ie the divorce
it would lead to uncertainty

Recognition and enforcement of orders

There is provision in Article 21 of Brussels II bis for automatic recognition of orders, without any special procedure, made in one member state by other member states in divorce, separation and marriage annulment matters. There are a number of grounds for non recognition of judgments relating to divorce, legal separation or marriage annulment:

if recognition would be manifestly contrary to the public policy of the member state where recognition sought
where given in default of appearance or if the respondent was not served with the writ or with an equivalent document in sufficient time and in such a way for them to arrange for their defence unless it is determined that the respondent has accepted the jurisdiction unequivocally;
if it is irreconcilable with a judgement given in proceedings between the same parties in the member state in which recognition is sought; or
if it is irreconcilable with an earlier judgement given in another member state or in a non member state between the same parties, provided that the earlier judgement fulfils the conditions necessary for its recognition in the member state in which recognition is sought.

The above grounds also apply to judgments relating to parental responsibility with 3 additional grounds for non recognition of judgments :

if the judgement was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition is sought.
on the request of any person claiming that the judgement infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard
if the procedure for placement of a child in another member state applies and is not complied with (as set out in Article 56)

While the UK may decide to automatically recognise EU orders post Brexit, there is no guarantee that the EU will decide to automatically recognise orders made in the UK. Leading English family lawyer Professor Rebecca Bailey Harris is sceptical that automatic recognition will happen post Brexit.

It appears inevitable that recognition and enforcement of orders between the UK and Ireland will become more difficult post Brexit as the current system, while far from perfect, does provide a great degree of clarity and certainty in most recognition and enforcement situations.

The system of recognition of foreign divorces from non EU countries in Ireland is already complex and the exit of the UK from the more straight forward recognition regime (for the period that Brussels II bis applies) will further complicate the lives of those whose marital life has crossed borders with our nearest neighbours.

Don’t wait for Godot, he’s in pre litigation litigation about litigation [and you know how long that could take]

We are entering a time of uncertainty in international family law, once the UK actually leaves the EU, the practice of family law between the UK and Ireland will become more complicated and expensive. Litigants will inevitably be dissatisfied with the system and delays appear likely. At a recent Family Lawyers Association seminar in Dublin, there were grave concerns relating to currently straightforward issues turning into protracted ‘pre litigation litigation about litigation’ expressed by lawyers practising on circuits adjacent to the border with Northern Ireland. As Resolution, the Family Lawyers Association in the UK, have recently stated:

‘the problem with the Great Repeal Bill is that it would force us [in the UK] to adopt rules which may not be helpful to families, but with no guarantee that the other member states will play by the same rules. Thus, proceedings issued or orders made in England could simply be ignored. ‘

On the positive side- the UK have not actually left the EU, they have simply given notice to leave, until they actually leave, the current system will remain in place and we must use it to our best advantage until the alternative arrives (if it ever does).

“Let's go. Yes, let's go.” ( They do not move) - ...

"Nothing to be done." - Waiting for Godot.

But there is plenty to be done – family lawyers in these four jurisdictions as well as in the EU can advocate for and lobby their own governments and the EU to adopt a more enlightened approach to meet the needs of children and family post Brexit by the retention of some level of common agreements. We are at the start and not the end of the Brexit process and family lawyers owe it to their clients to highlight these issues and put it up to governments and the EU to consider the effects of not resolving the obvious issues of jurisdiction, enforcement and recognition of divorces and other family law orders post Brexit.

For clients who are considering separation or divorce or maintenance applications and there is an international element involving the UK they would be best advised to immediately seek legal advice on the current and likely future consequences in their own cases.

Keith Walsh Solicitor

keith@kwsols.ie

01 455 4723

Keith Walsh is chairman of the Child and Family Law Committee of the Law Society of Ireland