Brexit raises many issues in almost every legal field and family law is certainly no exception. Alex Critchley is a Solicitor in the Family Law Team at Morton Fraser. He regularly advises on issues of international jurisdiction in family cases, and below discusses the potential prospects of family law post-Brexit.
The term reciprocity will seem obscure to many non-lawyers but it is of crucial importance when considering what mechanism the UK seeks to employ to deal with jurisdiction, recognition and enforcement in international family law cases when the UK leaves the EU.
The concept of reciprocity addresses the issue of how other EU member states will react, first, to ongoing court proceedings in the British courts and, secondly, to judgements of British courts, including decrees of divorce.
It has been suggested that the current mechanism, known as the Brussels II bis Regulation, for regulating questions of jurisdiction, recognition and enforcement in some family law matters be transposed into UK law.
The problem is that if the UK does this, but other remaining EU member states no longer recognise us as being a 'Member State' then, among other things, there may be a situation where a UK court will recognise ongoing proceedings in Germany, but the German court will not necessarily recognise ongoing proceedings in the UK.
Under the current rules, when a person is divorced in the UK, that divorce is entitled to automatic recognition in Germany. Equally, when a German court grants a divorce, it is entitled to automatic recognition in the UK. This is because the Brussels II bis Regulation provides that judgements of Member State courts are recognised without further procedure. However, when the UK leaves the EU, Germany will again require that British divorces are subject to a recognition procedure (known as an Anerkennungsverfahren). However, the UK would still recognise German, Italian and French divorces without further procedure.
This is not a great outcome. We do not want a situation which does not provide reciprocity. The problem is that whether a German court recognises British court judgements is really something that the UK Government has little control over, unless a treaty can be negotiated to regulate matters.
The mind boggles at the other numerous issues that could arise.
Indeed, there are numerous difficulties that can arise even between different parts of the UK when matters haven't been carefully thought through. Last year, for instance, it was recognised that there was a lack of a statutory mechanism to register and enforce an English order placing a child in secure accommodation in Scotland.
The difficulty is that some issues, especially matters involving children, require swift action. Where British and EU authorities have expedited procedures for dealing with intra-EU cases, these procedures may fall away and cases will be dealt with more slowly by all countries concerned.
There are old rules dealing with matters that can potentially be re-introduced to deal with matters currently dealt with under Brussels II bis. For example, where there were competing ongoing EU cases in the past, UK courts could resort to a common law doctrine called 'forum non conveniens'. However, this doctrine requires the court to consider which court is most 'convenient' to hear the dispute and this is a costly exercise to undertake. This discretionary doctrine has produced copious appeals, adding significant expense and time to already potentially ruinous divorce cases. For all the problems that the EU's 'first in time' rule has, including the race to raise proceedings, the rule has the advantage of being clear.
Whatever view one has of Brexit, the issue of reciprocity cannot be ignored. Either it should be agreed that the Brussels II bis Regulation continues to apply to the UK, with mutual recognition with other EU Member States, or we need to think – (quickly) - about new legislation.
A copy and paste job will not work here. One possibility is replicating the Brussels II bis Regulation with a similar mechanism to the Lugano Convention, which allows for reciprocal enforcement in non-family commercial and civil cases in non-EU EEA states. This is a framework that could operate outside of the EU if there was the required political will. Time is getting short for getting matters resolved.
It may be that where there are holes in existing rules, we may have to look at developing our own rules for jurisdiction in family actions sooner than we like. If we do, then we need to make sure that these rules are well thought out and work efficiently. Perhaps it may also give us an opportunity to re-think some of the tricky jurisdiction issues that still exist between the constituent parts of the United Kingdom.
