In a world which has seen an increase in family unions between different European nationals, family law has developed to provide a harmonised system across the EU.
Our jurisdiction of England and Wales has always made and applied its own law in respect of family law but there are different EU instruments which concern family law. These instruments deal with things such as jurisdictional conflict in issues about divorce and parental responsibility, maintenance obligations, enforcement, child abduction and service of proceedings.
When there are competing jurisdictions, in divorce and related financial matters, children issues and maintenance, they specify which country should deal with matters. They provide for co-operation between different countries and enable the recognition and enforcement of orders made in different jurisdictions.
The EU instruments ensure that there is a consistent approach to such matters across the EU, so there is less legal argument and expense. Bureaucracy is kept to a minimum and they provide for a quicker and more effective solution.
Court of Justice of the European Union
Sometimes questions arise in respect of the interpretation of such instruments and reference is then made to the Court of Justice of the European Union. They will make decisions on interpretation which each EU country must then apply. The domestic courts will always decide the substantive case with the benefit of the interpretation given.
When Brexit comes to fruition the government has indicated an intention to replicate the EU instruments in our domestic law but to no longer be bound by the Court of Justice of the European Union.
Family law associations are concerned
In October 2017 a joint paper was drafted by the Family Bar Association, International Academy of Family Lawyers and Resolution expressing concern about the government’s stance and the impact that this will have.
The paper identified that there were broadly 3 options:
- To replicate the EU instruments in our own domestic law and maintain the reciprocal arrangement between the UK and other EU member states. This would maintain the status quo but will mean that the UK will still be subject to the Court of Justice of the European Union
- To replicate the EU instruments in our own domestic law but without retaining full reciprocity with the other EU member states and not being subject to the Court of Justice of the European Union. The UK will continue to apply EU family law and recognise and enforce decisions of EU countries but those countries would not necessarily have to recognise and enforce ours. This would end the reciprocal arrangements that exist today and risk parallel proceedings in different jurisdictions as well as different decisions being made in separate jurisdictions.
- To make bespoke arrangements with the EU that set out a new framework for family law cooperation between the UK and the EU. This will achieve the government’s aim of not being bound by the Court of Justice of the European Union but such arrangements will take the longest time to consider, negotiate and put into practice. Family law is very low down in priorities when it comes to domestic legislative reform and there is no reason to suspect that this will be different when it comes to Brexit. Given the other issues that Brexit poses and the tight time frame that exists, it seems unlikely that this option is viable in the short term. Any alternative will also require the agreement of the other EU states which may not be forthcoming.
The paper argues that the most sensible option would be the first albeit contrary to the governments wish to be free of the Court of Justice of the European Union. The thrust of the argument is that in the field of family law the Court of Justice of the European Union is only concerned with procedural matters and not substantive law.
When dealing with cross jurisdictional issues in the EU it makes sense to have rules providing for reciprocal arrangements and an arbitrator dealing with interpretation. There is no reason why this cannot be confined to procedural issues and rules of private international law; as it is at present.
The argument then follows that by limiting the role of the Court of Justice of the European Union, the UK is free to make their own laws of substance but enjoy the benefits that exist through the EU instruments for family law.
There is no doubt that the EU instruments provide a considerable benefit to families with issues that cross different European jurisdictions but a key component of Brexit is to no longer be subject to the Court of Justice of the European Union. If this is implemented, it is difficult to see how full reciprocity can be maintained unless an alternative is agreed.
In the longer term, the future of our relationship with the EU in terms of the making of future laws and amending those that exist which relate to family law, will need to be properly considered if we are to retain the benefits of an integrated system in respect of cross jurisdictional issues. Until such time as this can be done, accepting a limited role of the Court of Justice of the European Union seems a small price to pay for the benefits that the current system brings.