Family Law Journal/2017/November/Update/Brexit and family law –  Fam Law 1169
Family Law Journal
 Fam Law 1169
Brexit and family law
Since the Government triggered Article 50 in March of this year there has been much speculation about what the UK’s future relationship with the EU will look like but not much in the way of substantive agreement be-tween the parties. However, in an effort to progress the negotiations, the Department for Exiting the European Union (DExEU) has been busy publishing papers that seek to set out the UK’s position on key areas. The most important of these papers from a family law perspective are those dealing with cross-border cooperation, and enforcement and dispute resolution. We will examine these papers in turn and consider the impact that the Government’s propositions would have on family law if they came to fruition.
PROVIDING A CROSS-BORDER CIVIL JUDICIAL COOPERATION FRAMEWORK: A FUTURE PARTNERSHIP PAPER
This paper deals with the future framework that will apply when UK or EU courts are considering issues to do with jurisdiction, applicability of different nations’ laws, and recognition and enforcement of judgments in cross-border disputes. Published on 22 August 2017, the paper directly responds to the points raised by the European Commission in their earlier paper, published on 12 July 2017. The Commission suggested that EU law on jurisdiction, recognition and enforcement should continue to apply to all cross-border disputes that commenced before the date the UK withdraws from the EU. The UK government has accepted these proposals. This means that (assuming these proposals are enshrined in a ‘Withdrawal Agreement’):
– EU rules relating to jurisdiction will continue to apply to all proceedings instituted before the date that UK exits the EU;
– if a choice of court to deal with a matter is made before the date that the UK exits the EU, this court would continue to be subject to EU rules relating to jurisdiction, and recognition and enforcement of judgments. This would be the case even if a dispute arises in respect of whether the chosen court is the appropriate forum to hear the case after the UK has left the EU, provided that the agreement was made before exit date;
– in relation to recognition and enforcement of court orders, EU rules would apply to decisions made after the withdrawal date if the proceedings were initiated before the UK left the EU.
These indications are significant from a family law perspective for a number of reasons. First, it would allow a court that has seised jurisdiction in a matter under the provisions of Brussels IIbis (eg, a divorce where the parties are habitually resident in different member states) to continue with the case after the UK leaves the EU, without having to reconsider jurisdictional issues. Secondly, if there is an agreement in respect of which member state’s courts will deal with a particular matter (such as the provision of maintenance), this agree-ment will continue to be binding and another state’s courts will not be able to take jurisdiction of the matter, even if a dispute does not arise until after the UK leaves the EU, and the UK and EU nations will continue to recognise decisions in respect of such a matter. Finally, decisions by courts in cases relating to divorce, children and maintenance where proceedings were commenced before the date of withdrawal will continue to be recognised and enforced by the UK and the EU (this will be applicable even in cases where a ruling is not made until after withdrawal date, provided the proceedings were initiated before this date).
While it remains to be seen just how complex the future cross-border framework with the EU will be, what is clear is that there is a commitment to a collaborative and common-sense approach by the UK and EU to cases that have been decided before the withdrawal date, or are ongoing at the time the UK leaves the EU. However, this paper also states that the UK will not be subject to the jurisdiction of the Court of Justice of the European Union (CJEU) and direct effect of EU law will not apply after the UK leaves. The body of EU law will be retained in the UK on the day of exit by virtue of the Repeal Bill (no longer ‘Great’, and now officially titled the European Union (Withdrawal) Bill), but the more substantial problems arise in respect of the promised ousting of the CJEU. This is considered in more detail by the Government in the DExEU’s position paper on enforcement and dispute resolution.
ENFORCEMENT AND DISPUTE RESOLUTION: A FUTURE PARTNERSHIP PAPER
Published just one day after the Government’s position paper on cross-border civil jurisdiction, this paper further examines jurisdictional issues, but with a particular focus on how disputes between the UK and EU will be resolved, and how agreements can be enforced by individuals and state actors.
The paper makes abundantly clear that the UK does not see the CJEU having a continuing role as arbiter and enforcer of UK-EU agreements. Instead it is suggested that an alternative dispute resolution mechanism will need to be enacted to deal with interpretation of agreements between the UK and EU, and enforcement of these agreements. The paper explores a number of different potential systems, such as joint committees, arbitration, and reporting and monitoring, but does not specify which model the UK Government believes is most suitable.
It will be important in cross-border family law disputes that there is uniform interpretation of provisions, and that there are adequate powers to enforce an agreement if a party does not abide by the rules. For instance, if the provisions of Brussels IIbis are retained in UK law after withdrawal and an agreement is made with the EU to mutually enforce this, but the interpretation of ‘marriage’ or ‘parental responsibility’ evolves in case law differently in the UK than in the EU, then this could cause serious problems when trying to agree cross-border enforcement action. Additionally, if one party decides unilaterally not to abide by the rules of the agreement and, for instance, does not relinquish jurisdiction in a divorce case when it should, then there would need to be sufficient enforcement action and remedies available to the innocent party.
The Prime Minister’s recent speech in Florence provided a slightly more evolved outline of how this future partnership could work. She alluded to the Government’s aspirations of forming a bespoke form of judicial cooperation with the EU, which bridges a gap between that enjoyed between EU institutions and falling en-tirely outside of EU judicial control. There are clearly pressures upon the Government to respect the vote to leave the EU, which may be at odds with a strong trade agreement moving forward. The proposals were certainly embryonic, and did not delve into the sort of detail which will intrigue family practitioners, although many may hope that a bespoke form of judicial cooperation would not solely be tied in with trade. What does seem clear though is that the form of cooperation which was alluded to is one which does not currently exist with any other countries and the EU, and which would be fraught with jurisdictional complexities, not least how would the top tier tribunal be formed and how would such laws be prepared.
In Florence, the Prime Minister also acknowledged that it may take longer than the period afforded under Art 50 to work out how this future framework will appear. This may come as little surprise to many who have already begun to get some insight into the complexities of future jurisdictional cooperation, and the myriad options available to all parties involved to address this. It does however hopefully mean that if the status quo is maintained for longer than envisaged under Art 50, it could be the difference between having a system that can stand the test of time, as opposed to one which could swiftly become outdated as English and Welsh domestic laws evolve outside of the EU sphere. The EU has already indicated that it will resist the ousting of the CJEU’s authority on such matters, and the UK has stated that it must regain legal independence after it leaves the EU. As such, it appears that a stalemate may be on the horizon. Even if there was consensus on the need for a new arbiter, it could well take a long time to properly formulate and implement this body, and time is very much of the essence in these negotiations. Resolution, the organisation of family lawyers, has stated that it would prefer for the CJEU to retain jurisdiction on matters of dispute resolution and enforcement, and therefore that EU law continues to apply in reciprocally in the EU and UK, at least until a replacement body is fully operational. In the absence of any concrete plan from the UK Government for a new arbiter, and given the stance of the EU on this issue, it seems that this is an eminently sensible suggestion. Whether or not the UK Government will renege on its promise to end the influence of the CJEU on the UK remains to be seen.