The UK Government recently published it paper containing the plans for Family Law in the event of a no-deal Brexit. It contained no surprises, but we at least now have clarity on the implications of a no-deal Brexit for family law clients. Although a no-deal Brexit would have consequences for many areas of Family Law, the main areas it would impact on are as follows:
Jurisdiction for Divorce
Although England, Wales and Northern Ireland intend to replicate the current EU grounds of jurisdiction for divorce, based on habitual residence, it appears that the Scottish Government is still considering the best approach for Scotland in the area of jurisdiction for divorce.
The significance of jurisdiction is that it is effectively the power of a court to deal with a particular matter. If a person can't satisfy the rules of jurisdiction, the court has no power to deal with their claim or dispute; and given the fact that there can be big differences in the financial award made upon divorce depending on the country whose courts are dealing with it, the matter of jurisdiction can have a big impact on international couples who divorce. We therefore wait with interest to see the Scottish Government's proposals for jurisdiction in divorce in the event of a no-deal Brexit.
Competing actions of divorce between different countries
EU regulations currently provide that if there are two competing divorce actions, raised in two different EU States, the action that has been raised first takes precedence over the second action, which must be halted until the conclusion of the first action. The purpose of this Regulation is to give clients certainty to which country's laws would take priority in the event of competing divorces (the country in which the divorce was raised first). Whilst these regulations give us certainty, it has come at the price of people rushing to Court in order to ensure that the divorce is heard in the country whose laws favour them the most. In the event of a no-deal Brexit this rule will drop and instead if there are competing divorce actions in two different countries, the parties will have to apply to one, or both, Courts to have the proceedings in that particular Court halted on the basis that the other Court is the more appropriate jurisdiction to deal with the matter of divorce. It is not beyond the realms of possibility that the courts in both competing countries will decide that they are the most appropriate court to hear the divorce, in which case the client is faced with the prospect of litigating in two different fronts with the "winner" being the one whose Court grants Decree of Divorce first.
In short, in the event of a no-deal Brexit, clients no longer have the need to raise divorce actions as soon as possible in order to secure jurisdiction in the country that suits them best, but instead they will face significant legal costs in arguing which country's courts are best placed to hear their divorce!
It is often possible to raise a maintenance claim separately from an action for divorce. The EU Regulations regarding maintenance claims, unlike for divorce, apply the "first served" rule applies to maintenance claims between Scotland and England. This can give rise to a scenario whereby a high earning husband based in Scotland may raise an action seeking maintenance against his low earning wife who has just recently returned home to England upon the breakdown of the marriage. In the event of a no deal Brexit the "first served" rule for maintenance claims will no longer apply. This can only be a good thing as it will help reduce the distress and cost caused by this unnecessary litigation.
Cases that are ongoing on Brexit day
The intention is that Scottish family law cases ongoing on Brexit day will continue to proceed under the current EU rules and regulations, although the recognition and enforcement of the decisions of the Scottish court in an EU country after Brexit is less certain.