It has been a tumultuous time in British politics and in the country as a whole in the last few days. Some in Britain feel pleased to be escaping what they see as a unhealthy and limiting relationship. Others feel stunned at the outcome, disappointed, fearful and cross. But the ties are being severed and there will now follow a process to formalise the uncoupling of British and EU relations – and that will involve negotiations to decide how things will work practically going forward, including in relation to matters where common ties will remain. There are striking parallels with the process of divorce.
However, whilst divorce lawyers up and down the country may feel better equipped to deal with the human emotions of the fallout than many, they are also coming to grips with the fundamental changes to family law that will be inevitable upon Brexit.
EU legislation will no longer be automatically part of our law. Presumably we will pick and choose which parts to integrate as part of the reorganisation so that domestic law reflects the parts of EU legislation we wish to keep and the case law from the Court of Justice of the European Union that we still wish to guide future cases in this country. This is obviously an enormous undertaking and will no doubt provoke substantial debate amongst family lawyers and the wider community about what we want divorce, financial and children matters to look like in the post-Brexit era.
There has been speculation prior to the referendum about likely changes. The Bar Council, representing the 15,000 practicing barristers in England and Wales, prepared a report noting that EU measures have had a significant beneficial impact on family law including uniform jurisdictional rules for divorce proceedings through Brussels II and maintenance proceedings through the Maintenance Regulation.
It highlights that, for example, at present the concept of lis pendens is binding in England and Wales. This is the rule that the person to issue divorce proceedings first in time obtains jurisdiction for whichever EU state they are in. If this provision is not kept, the increasing number of international families divorcing could find themselves engaged in expensive and long-winded litigation about which country is the most convenient jurisdiction.
It must undoubtedly be the case that leaving the EU will bring a period of disruption and uncertainty – on that all commentators seem to agree. Financial professionals are watching the markets with interest over the coming days, weeks and months to determine the impact on business and the country’s prosperity. However, for family lawyers the uncertainty as to how family law will be practised, and the impact this will have in the long term for our society, is similarly gripping.
