To leave or not to leave? That is the question

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Decision day on the EU referendum is looming, soon the die will be cast. This issue has polarised and rallied many. Views on the subject veer from strong to indifferent. Some have rallied on the streets, on campaign buses, through social media and some have taken to the Thames floating to Parliament like some watered down Armada.

As a family lawyer I have asked myself the obvious question, what could the legal landscape look like if we say farewell to Brussels? To answer that question one needs to have a basic understanding of what our legal relationship is with Brussels. Is it a match made in heaven or a thorn in our side? Family law is subject to regulations made by the European Court. Those regulations primarily impact on the jurisdiction of the Courts both in England and Wales and in Europe to deal with divorce and children issues.

The rules regarding jurisdiction in this country are governed by a European Regulation known as Brussels II. A party to a marriage can be divorced in this country if:

  • they and their spouse are habitually resident here;
  • they and their spouse were both last habitually resident here and at least one of them still is;
  • one party is habitually resident here;
  • they are both habitually resident here and have lived here for at least one year immediately preceding the presentation of a divorce petition;
  • they are both domiciled here

In divorce cases there is often a rush to secure one jurisdiction over the other. It is not uncommon for one party to want to issue proceedings in this country as they perceive the divorce laws to be fairer. Neither is it unusual for two different countries to have jurisdiction and parties will often issue proceedings in a different country. Which Court takes precedence depends on who gets their petition in first as any subsequent proceedings will normally be put on hold. This is often an important factor as many European countries operate quite rigid regimes when it comes to the division of assets on divorce.

The Regulations not only cover divorce cases by a number of other legal issues, such as child abduction under the Hague Convention between countries, the reciprocal recognition and enforcement of maintenance orders across European borders and the recognition and enforcement of children orders.

Implications of leaving the EU

In the context of divorce proceedings it may mean that for example an Italian couple living in this country and who have habitual residence here upon the breakdown of their marriage may not be able to issue divorce proceedings in this country even though the assets of the marriage may be UK based. They may be required to issue in their country of origin. The same would of course be applicable to UK citizens living within the European Union.

A leave vote would mean that this country would no longer be subject to the strict Regulations imposed by Europe. Speaking from experience it has been hugely helpful and effective to have reciprocal arrangements with other European Courts in particular when orders made in this country have to be registered in another country to either give effect to that order or to enforce it. The same applies to children who are abducted from one European country to another, the procedures in place to ensure their return may well be impacted by leaving the EU.

If we do leave the EU it may still be possible to negotiate reciprocal arrangements with other European Countries but there is no guarantee that this would happen or be as effective.

It is the case that for those international families all over the European Union they may find themselves embroiled in complicated litigation about jurisdiction. Like most people no one really can predict if we leave what impact that may have, suffice it to say that unravelling our legal ties with the European Union is not going to be a piece of cake.