Leave or remain? What the EU referendum means for family lawyers (Pt 2)

Family analysis: In a conclusion to a two-part analysis, David Hodson OBE, partner and co-founder of The International Family Law Group LLP, sets out his views on the implications of a departure from the EU for family lawyers and their clients.

What are your key concerns about a future EU referendum?

Like many, I would like to see a serious review of the powers, authority and direction of law-making of the EU as a preliminary to the referendum. Of course family law is only one element, however it is very much a microcosm of many other issues and differences felt by the legal profession and the public. Certainly there is much which is good but there must be a significant pulling back of the ambitions and overarching global aims of the EU in its legislation. The worry must be that with so many other difficult areas of social, commercial, legal and political life in our relationship with the EU, family law issues are perceived as minor and not discussed in the pre-referendum negotiations with the EU. My concern is that the EU refuses any real concessions on these issues.

My personal position, which may not be the position of others in my practice as we have no firm wide policy, is that I believe that there has been a lot of good emanating from the EU family law but it has gone much too far. I hope from the EU there will be valid and effective concessions and self-imposed restraints on powers and global ambitions to make it easier in deciding how to vote.

What are the areas of family law affected by the EU involvement?  What would happen if there was a departure after the referendum?

Consideration would need to be given to what pieces of law we would not have if there were a departure from the EU and how might we get on without them? I am presuming that we would still stay in some European gathering of countries, perhaps similar to the European Economic Area (EEA). I think the following would be in issue:

Jurisdiction for divorce

I think identical divorce jurisdiction across the EU (Brussels II) is highly commendable, sensible and attractive. But we could agree to have this identical jurisdiction without the imposition of other EU elements.

Recognition of divorces from other EU countries

This is now effectively automatic as a consequence of Brussels II. However England and Wales have a very liberal policy in the recognition of foreign divorces so not having this law would make very little difference.

Forum disputes based on first to 'issue' principle

I set out my concerns regarding this principle in part one (Leave or remain? What the EU referendum means for family lawyers (Pt 1)). Losing this very bad law, that has an adverse impact on practice including discouraging parties to resolve matters pre-court or save saveable marriages, and at the same time significantly increasing costs, would be very good indeed. I don't think domestic law should go back to an unfettered discretion in forum cases but a halfway house could be found. Not being in the EU would mean we did not have lis pendens.

Recognition of children orders from other EU countries

This is a very commendable feature of EU law (Brussels II) but we now have the 1996 Hague Convention which does something very similar so there would not be adverse consequences of leaving the EU.

Expedited child abduction procedures

The reality is that the UK is leading the way in Europe with fast proceedings in child abduction cases for return orders. Several EU countries do not operate returns quickly or effectively. Leaving the EU would not change the UK commitment to a fast timetable and process for child abduction work.

Trumping provisions in child abduction work

This would not be binding if we left the EU but has had problems in practice.

Recognition of maintenance orders made by other EU countries

This is good legislation (the EU Maintenance Regulation) but we now have the 2007 Hague Maintenance Convention which does a similar thing, but beyond Europe, so we would not lose out. Leaving the EU and supporting the Hague Convention might encourage other non-EU countries to join up.

Entering into family law conventions, treaties and agreements with non-EU countries

This will no longer be a difficulty if we are not then prevented from doing so by the EU.

Service of proceedings

The EU Service Regulation (EC) 1393/2007 is very commendable but the Hague Service Convention does the same sort of thing.

Taking of evidence

As with service, the EU Taking of Evidence Regulation (EC) 1206/2001 is commendable but the Hague equivalent is equally good.

Legal aid

Leaving the EU would mean that the UK would lose the EU Legal Aid Directive 2002/8/EC but it could then revert to the 1997 Strasbourg Agreement which covers similar ground.

Applicable law

As stated in part one (Leave or remain? What the EU referendum means for family lawyers (Pt 1)) this has been one of the biggest thorns in the family law relationship between the UK on the one hand and the EU and other civil law European countries on the other. Leaving the EU would free up the EU to introduce applicable law across remaining countries without the obstacles created by the UK insisting always on applying local law. The continued struggles with the EU on this topic would not be missed if we left the EU.

Property regimes

The EU intends to publish a new draft law by the end of 2015 to govern non-needs-based sharing of marital property. One problem is that England and Wales, and perhaps the UK as a whole, does not have a conventional regime of marital property. At the moment the UK is opting out of this proposed law. The UK leaving the EU will mean it is not imposed.

Different jurisdictional locations for family law case

One worry with the proposed new marital property law is that it will have separate jurisdictional elements. Therefore, there is the real possibility that a divorce may be in one country (Brussels II), a needs-based claims dealt with in another country (Maintenance Regulation), sharing claims dealt with in a third country (the proposed new EU Marital Property Regulation), and perhaps even child support issues dealt within a fourth country (as a consequence of the decision of the Court of Justice of the European Union (Third Chamber), C-184/14 A v B (child maintenance: jurisdiction) [2015] 3 FCR 24, in July 2015). This would be an appalling waste of time and costs for the couple and lead to very unjust outcomes as different principles were applied by different countries and courts with different sets of lawyers with different disclosure obligations and criteria.

Marital agreements

One big issue with continental European jurisdictions is that England and Wales, like many common law countries, believes strongly in the opportunity to take independent legal advice and disclosure before making any legal commitments. So before a couple enter into a marital agreement we expect that either they will take independent legal advice or they have the opportunity to do so, following the Supreme Court decision in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2010] 3 FCR 583. In stark contrast, across continental European jurisdictions often one lawyer, a notary, acts for both parties without any independent representation. Lawyers in this country have seen many cases where there has been a perception that the more financially vulnerable spouse has entered into a very disadvantageous agreement without independent advice. The worry is that continued EU family law will bring about an imposition that we should accept agreements where one party had no opportunity of independent legal advice or disclosure.

Adoption

This is governed by law from The Hague rather than the EU in any event.

Surrogacy

There are no international laws as such but they are more likely to come from The Hague rather than the EU.

Forced marriage

The UK is leading the world in combating forced marriage and in any event this is often not an EU issue.

Female genital mutilation (FGM)

The same issues apply as with forced marriage.

Non-court dispute resolution/ADR

Although the EU Mediation Directive was of considerable assistance and encouragement, other countries are now leading the way, eg Singapore, and there is other legislation, eg the New York Arbitration Convention, which is wider than the EU.

Summary

Therefore curiously this jurisdiction might not lose out to any material extent if we were no longer part of the EU for family law purposes. Other legislation is available from The Hague. England leads the world in many respects anyway without the EU. Several very problematical issues where the EU is seeking to impose upon the UK would disappear, very beneficially for us and clients. As it is likely that we would be part of some European grouping ancillary to the EU then some of these arrangements would apply in any event but much more selectively. Overall, I don't think there would be a significant detriment in the family law context and there might be significant merit and benefit

What would a vote to leave the EU mean in practice for lawyers in your field?

As above, a number of pieces of EU family law would not then apply but, as I have demonstrated, this might not have an adverse impact and instead in some respects we would rely more on law from The Hague which is worldwide rather than just the EU. It is unlikely that the number of international families in England would diminish. The work would remain. We would certainly not have to be ready at a moment's notice to issue quickly to be first and we would have much more opportunity to engage in non-court dispute resolution and negotiations. We would still regularly deal with specialist family lawyers across Europe, as we do already across the world in our international cases. I doubt there would be significant adverse consequences.

What would a vote to leave the EU mean for clients in your field?

This would be very beneficial for those clients who are in the unhappy position of a potential forum race to issue proceedings fast yet personally would prefer to try to negotiate, discuss, or settle before dashing to court. It would also be very beneficial for clients who may find that they can no longer bring needs based financial claims in this jurisdiction because the only link is sole domicile yet there is no other obvious country in which claims could be brought. An exit from the EU would be very beneficial for the parent of children who have been abducted to a country which the EU does not allow us to join as a signatory state under the relevant Hague legislation as it could then be dealt with as a Hague Convention abduction.

Of course when looking at continued membership of the EU, international families have many considerations in their work, businesses, families and personal arrangements which will influence how they vote. I would never suggest the family law aspect should determine voting decisions. But equally it is important we specialist international family law practitioners consider what might happen if the vote was to leave the EU, if only to avoid unnecessary scaremongering or unrealistic campaigning by either side of the referendum debate.

David Hodson is a highly experienced family law dispute resolution specialist, with particular experience in cases involving an international element or complex assets or issues. He is a solicitor, mediator, arbitrator, deputy district judge at the Central Family Court, and joint founder and a partner at The International Family Law Group LLP.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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