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Family analysis: A referendum on whether the UK should remain a member of the EU is scheduled to take place by the end of 2017. In the first of a two-part analysis, David Hodson OBE, partner and co-founder of The International Family Law Group LLP, highlights the current impact of EU law on family lawyers and their clients.
How could your practice area be affected by the EU referendum?
The primary effect of a referendum decision which caused the UK to leave the EU would be that EU legislation would no longer be automatically part of our law. Since March 2001, there have been several major pieces of EU family law legislation which have been directly applied in England and the UK, without going through the UK Parliament and therefore crucially have not been debated through the UK political or consultative process. In as far as they have been from a continental European civil law perspective, they have at times, and in parts, been contrary to domestic family law approach and practice. A good part of our work is now determined not by domestic law but by EU legislation and Court of Justice of the European Union (CJEU) case law. Their absence and our departure from the EU would be dramatic. The issue for debate is whether it would be overall beneficial.
It has also to be said that there have been a number of other pieces of EU legislation relating to broader practice issues such as service, taking of evidence, legal aid and similar which have been helpful. But these are outweighed by the particular difficulties created from some areas of EU legislation, EU policy and EU case law.
What issues currently arise in your practice area in relation to the UK's relationship with Europe?
There are certain primary themes.
Jurisdiction—first to 'issue'
First, with freedom of movement around Europe, and therefore inevitably many international families, there were bound to be many more forum disputes as to which country should deal
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