It could be said that in family law matters, we have all become a little complacent when it comes to considering whether or not European Regulations apply to the member state we are dealing with. We have become dependent upon Brussells II when it comes to jurisdiction. This will all change if we leave the EU with no deal.
It is hard to believe this will happen as it seems so detrimental to all given the amount of family law traffic passing through the UK.
Just establishing jurisdiction will become so much more difficult. Different member states have different bases for jurisdiction but also within the same jurisdiction there can be different bases depending on the type of action involved (consider the English case of Re B ( A Minor:Habitual Residence) [2016] EWHC 2174 (Fam) for comments on the different approach between habitual residence in children cases as opposed to in disputes between adults) . Consider the different interpretations we have seen over the years for the term “habitual residence” in the context of the 1980 Hague Convention ( Civil Aspects of Child Abduction ) and then imagine the difficulties we will have when member states revert to their domestic rules on jurisdiction resulting in a battle of domicile v residency v nationality.
The immediate and obvious risk is that we will see a sharp rise in speculative actions, forum disputes and multiple actions in different countries if some Agreement is not put in place quickly to regulate such matters.
We will have to become familiar with little used Hague Conventions of 1996 ( Parental Responsibility and Protection of Children ), 1970 (Recognition of Divorces and Legal Separation) and 1965 (on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters) . We will need to ensure the other country involved is a signatory to the particular Hague Convention we are relying on and not assume that all EU member states will also have signed up to these Conventions. Large European countries with strong, established connections to the UK such as Germany, Spain and Greece have not signed up to the 1970 Hague Convention, for example.
In terms of the recognition and enforcement of foreign orders this will take more time, cost more and become more difficult in some cases. Again, it will become even more important to consider carefully the terminology used to make sure it can be understood, translated effectively and implemented. In such cases it will be helpful to be able to run drafts by our overseas colleagues to improve the chances of it being recognised without too much difficulty. The practical knowledge of our international colleagues of enforcing such orders in their country (and , in some cases, the knowledge of variations within their own local area ) will make all the difference when we are relying on the 1965 Convention on Service, for example. The 1965 Convention allows member states to lodge reservations to particular modes of service and some of the preferences can seem surprising to us in Scotland where we are familiar with a relatively formal procedure for valid service.
How do we prepare ourselves? Building up and maintaining international networks will be more important than ever before. The ability to quickly find out the differences in jurisdiction and the best forum for our clients will be of great benefit.
We may see an increase in the use of pre and post nuptial agreements in international relationships in order to try and regulate the parties’ preferred jurisdiction.
On a personal level, as the daughter of an EU migrant with dual nationality, it is difficult to even talk about Brexit. As a practitioner, with a significant international family law practice, all of this makes me want to lie down in a darkened room with a damp towel on my head! However, one thing is certain; regardless of if, how or when we exit the EU, the ability to reach out to trusted colleagues in other jurisdictions will become more important than ever before.
