20th Nov 2019

Brexit … and family law

By James Pirrie

An analysis of the road ahead by Family Law in Partnership director, James Pirrie.

It is difficult to declare anything with certainty.  But what we can say with some degree of certainty is that the clear process for international family law cases that we have had until now is about to be changed.

Whenever there is fundamental change in a complex system, it is hard to anticipate the full range of unintended consequences. We found this, in particular, for example as we warned government against meddling with child support law.  Cross-jurisdictional cases are no different. And it is difficult to predict the full extent of the challenges ahead.

Currently a European couple can issue in one of two European jurisdictions and a set of rules decides which court deals with their case. Until now, it was pretty simple: first in time.  The court that first stamped the application dealt with the case. From now on, it is likely to be which court is more convenient. And this may leave foreign courts assuming jurisdiction in what may feel like essentially English or Welsh cases.

So from now on the family whose circumstances straddle one or more jurisdictions are likely to find themselves pursuing their claim in one or more jurisdictions for the preliminary decision as to where the rest of the case should be run … historically we would have seen two sets of lawyers (one in each jurisdiction) thrashing out the issue.  The international couple will probably be funding:

  • a lawyer each abroad to say that that country’s court should / shouldn’t decide the case, alongside:
  • a lawyer each in this country arguing for the opposite..

All of this comes about because of the wide discrepancies in the way that courts deal with their cases – in particular the financial consequences following a divorce.  If one partner wants the case dealt with in one country (perhaps because spousal maintenance is rarely paid or only paid at low levels or there is only a modest claim permitted on grounds of need), then the other probably wants it dealt with in the other country (where spousal maintenance and needs-based claims are high).

Whilst this country could resolutely declare that it will adopt the “first past the post” system (which might, for example see it assuming or refusing the case depending on who issues where first) there is no reason at all why any other court would reciprocate – and decide that because we adopted the first past the post rule that it should do so too. Those who have taken soundings think it quite likely that having exited the European Union potentially without a deal, the foreign court will incline to keep the case saying that the UK is now in the unregulated wilderness outside EU jurisdiction and so it makes perfect sense to deal with the relevant applications.

So we move from the two stage case in one country (ie. who does the divorce and what is the right financial outcome) into a four stage case:

  • forum conveniens
  • then the divorce
  • then the finances
  • and perhaps a further application for sticking plaster help in this country.

Unfortunately, with the myriad of other demands on its time, we should have no expectation that Parliament will be able to find much legislative space in the calendar to deal with the family law implications for international families given the host of other legal changes that will be fighting for air-time.

At Family Law in Partnership we have a depth and breadth of expertise on international family law issues which is second to none. Contact any of our talented team of leading divorce and family lawyers for advice on T: 020 7420 5000 or email us at E: hello@flip.co.uk