The political and economic ramifications of the EU Referendum result have already begun, but what of the rather more prosaic, but nevertheless socially important, impact of changes to the legal regulation of English families? Those families with an international connection, as well as international families with an English connection, can expect to be affected.
The overarching objective of the legislative arm of the European Union is the creation of an area of freedom, security and justice intended to ensure and support the free movement of people. With free movement of people came the freedom of those people to create families and move internationally with them.
Over 40 years of freedom of movement within the EU has seen huge increases in the numbers of international families living in England and families with an English connection living elsewhere in Europe. International mobility has driven a generation of European Union law makers to introduce uniform rules, directly applicable in the EU, intended to harmonise the operation of many aspects of family law in Member States for internationally mobile citizens and their families.
An inherent incompatibility between our system of common law and mainland Europe's civilian jurisdictions prevented any attempt to harmonise the application of matrimonial finance laws across Europe. Instead, the various EU family regulations cover practical aspects of family law such as jurisdiction, enforcement, divorce, parental responsibility, child abduction, maintenance obligations and service of proceedings.
So, whilst the UK's divorce from Europe will not directly affect the redistribution of income and capital following an English divorce, it will nevertheless have profound practical consequences for separating international couples, and their children, who have an English connection. The most obvious consequence will be an increase in the number of jurisdiction disputes.
The current position is that once proceedings for divorce have been issued in one Member State, similar proceedings issued in another Member State are automatically stayed. The purpose of this provision is to avoid the cost and uncertainty that arises when courts in different countries adjudicate on the same issues (as is happening in Chai v Peng in which the Courts of Malaysia and England have both accepted jurisdiction in relation to the divorce of a wealthy Singaporean husband and his wife – at a cost to the litigants so far of £6mn and rising).
The jurisdiction regulation can mean that an English wife divorced by her French husband in France, for example, would get a less favourable financial outcome than she could have achieved had they been divorced in England. However, once the regulations are no longer applicable in England, the French and English courts may both have jurisdiction over an Anglo/Franco divorce and there will either be a race to see who could get their divorce order first or, alternatively, forum dispute applications made to either or both courts for their proceedings to be stayed in favour of the other, more convenient, jurisdiction. In both instances, and whatever the outcome, delay and/or increased legal costs are inevitable.
Regarding the enforcement of orders made in overseas family proceedings, including maintenance orders, the English High Court has long recognised the importance of judicial comity. The importance of acknowledging, and giving effect to, court orders made by overseas courts directed at individuals or assets within the territorial jurisdiction of the court is not lost. But, whilst the European regulations preclude an investigation into the underlying issues that gave rise to the initial order being made, the recognition of non-European marital orders means a judicial re-evaluation of the factual basis on which the order was based is possible. Inevitably, the latter approach incurs additional expense that the former avoids. For individuals seeking the recognition and vindication of an order they have already spent time and money obtaining, additional delay and expense can be frustrating and demoralising. This, of course, works both ways: what incentive will there be there for the courts of the remaining 27 European Member States to give effect to English courts orders which they have always thought, from their civilian perspective, exorbitant?
It is perhaps in relation to children's issues that the consequences of yesterday's Referendum are most concerning. The English court has a deserved reputation for adhering to the letter of the EU regulation that imposes on Member States an additional obligation to adjudicate on cases under the Hague Convention on Child Abduction within six weeks. Over the last couple of decades, Judges of the High Court and the Court of Appeal have been at the vanguard of international judicial co-operation, designed to persuade other Member States to also give effect to timely resolution of abduction cases involving children taken from England overseas.
Although England will remain a signatory of the Hague Convention, it will soon be relieved of the strict timeframe that the EU regulation imposes. Rather than a compulsory requirement, the timely resolution of international child abduction cases will become a voluntary requirement. For parents, and more importantly children, any delay in resolving the question of whether or not they have been unlawfully removed from one country to another is often desperately upsetting.
Of course, simultaneously with its exit negotiations the next Government may choose to introduce domestic legislation to replace existing European Union law currently applicable in England with new, equivalent, legislation. Wide-ranging reform of the law regulating families, however, has historically been found wanting – and Parliament may well have rather more pressing issues to debate in coming years than family law.
If you have any questions arising from this, please contact Miles Geffin; 020 3321 6730