With the New Year well underway, Article 50 and Brexit are on everyone’s lips. As specialist family lawyers with a significant number of international clients, we were contemplating the impact of Brexit long before the referendum in June last year. Since the vote we have been weighing up the result.
Presently there are EU wide rules governing the jurisdiction of divorce proceedings, child related disputes and maintenance claims. Will leaving the EU change this?
Right now, it’s hard to tell. But just before Christmas some key legal figures appeared before the House of Commons Justice Committee to give their thoughts on the matter. One solicitor suggested that Brexit is going to have a “huge effect on family law, especially for those families whose parents are of different EU nationalities”. He pointed out that in 2015, 27.5 per cent of children born in England and Wales had a foreign mother.
It remains to be seen how issues around child residence disputes and jurisdictional issues on divorce in a post-Brexit world will be settled. What about the enforcement of maintenance and financial orders?
Enforcing Financial Orders
The issue of enforcement of financial orders is already complicated. In fact, The Law Commission has just issued recommendations on how enforcement could be simplified.
Although most of the Commission report deals with domestic enforcement arrangements, the Commission alluded to Brexit. It indicated that some of its recommendations, including those relating to pension orders, could be more difficult to put into practice because of the decision to leave.
At present maintenance orders from other EU countries can be enforced in the UK without the need for further proceedings (and vice versa). Some argue that if this automatic recognition disappears it will be open to UK and European judges to re examine the reasoning behind an order made elsewhere. This might alarm some parties involved in divorce. Further judicial involvement would inevitably cost more and lead to delay and uncertainty
But it is worth considering the existing Reciprocal Enforcement of Maintenance Orders (REMOs) framework. These agreements enable UK courts to enforce orders made in almost 100 non-EU countries and grant courts in those countries powers to enforce UK maintenance orders.
In addition there is already a relatively straightforward enforcement procedure between the UK and Commonwealth and Hague Convention countries.
Could these international agreements form a blueprint for enforcement procedures with EU countries in the future?
In conclusion, if you are facing divorce there is certainly no need to panic. Things are unlikely to change immediately given the 2-year exit negotiation period.
But if you have assets in Europe or you are a high net worth individual it is always sensible to seek advice from specialist international divorce solicitors to address any concerns you have.
With the post-Brexit landscape in mind, Brookman may also be able to address some of the matters that affect you individually in a prenuptial or post-nuptial agreement. Call us on + 44 (0)20 7430 8470 or contact us online.