BREXIT AND EUROPEAN FAMILY LAW
On 23 June, the British voted to withdraw from the European Union. The withdrawal will only be final only once a long process of negotiations has been completed and we do not yet know all of the consequences. What will happen to the law of the European Union and, in particular, legislation adopted since 2000 in the field of family law?
Let’s start off with the hypothesis that all of the European regulations adopted in this field (the « Brussels IIA » Regulation, and the « Maintenance » Regulation) shall no longer be applicable in the United Kingdom. To what extent will Brexit (an abbreviation of « British Exit ») change family disputes between Europe and the United Kingdom?
Brexit is a step backward that will only further complicate international family disputes
In our opinion, a distinction must be made between disputes relating to children, parental responsibility and child abduction, and those relating to marital breakdown and maintenance obligations.
Regarding the first point, if the « Brussels IIA » Regulation no longer applies to disputes between Europe and the United Kingdom, it shall certainly be regrettable that its rules which help to combat illegal movements may no longer be applied in the United Kingdom, but the Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction, which applied previously between the United Kingdom and European countries, shall continue to apply. With regard to disputes relating to parental responsibility, The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children shall apply since it was ratified by the United Kingdom and all member countries of the European Union.
There shall undoubtedly no longer be the same free circulation of judgements as under the « Brussels IIA » Regulation, but the rules relating to jurisdiction laid down by the two texts are extremely similar. The principal difference is that extension of jurisdiction is stricter under the Hague Convention than it is under the Regulation. Thus, should two French citizens residing in London get divorced, a French court would no longer have jurisdiction to give a ruling on what is to happen to the children of both spouses residing in London even if both spouses agree to extend jurisdiction over this matter to a French court.
But the question which concerns us most today is essentially whether Brexit heralds the end of the « Eurostar » divorce. The answer appears to be no. Even if the United Kingdom is no longer part of the European Union, a French court shall still have jurisdiction to give a ruling on the divorce of two French spouses residing in London, pursuant to Article 3 of the « Brussels IIA » Regulation. That is not however where the problem lies. It has more to do with finding out whether an English court will agree to waive its jurisdiction when a divorce action is brought before it after it has been brought before a French court, as it is bound to do under the strict lis pendens rules set down in Article 19 of the Regulation. These rules were imposed by European law and were not necessarily well received by the British courts. In common law countries, such conflicts relating to international jurisdiction are resolved more through determining which court is in the best position to hear the dispute rather than deciding according to which court is first seised. Thus, English courts, even if they are the second court to be apprised of a divorce action, shall only waive jurisdiction if they are of the opinion that the French court is closely connected to the dispute, which is not certain if, for example, the couple have lived in England for many years, and it is where their principal interests are based. There is therefore a considerable amount of uncertainty in this respect. Incidentally, difficulties will not centre around the issue of divorce, but on its consequences for maintenance. Now, on this point, the « Maintenance » Regulation will no longer apply. However, it should be recalled that prior to this regulation the provisions of the Brussels I Regulation provided for determining jurisdiction within the European Union in matters relating to maintenance. That particular Regulation itself replaced the Brussels Convention of 27 September 1968 which contained similar provisions. This Convention has never been repealed. It still binds the United Kingdom and most of the Member States of the European Union and it contains a strict international lis pendens rule (Art. 21).