Some of the potential problems with the United Kingdom leaving the European Union (EU) may be addressed by incorporating EU law into domestic legislation. This is not an ideal resolution, though, as it doesn’t address the requirement for reciprocity and cross border recognition of Family Law Orders.
Provisions for transitionary arrangements must be taken into great consideration to ensure legal certainty for families during the transition stage. Much more so in giving consideration to issues or concerns affecting those engaged in family law proceedings, specifically those who are negotiating and legislating in advance of Brexit.
With the freedom of movement and of residence (right of every citizen of the Union to move and reside freely within the territory of the member states) in place, it means that there are nearly 4 million EU citizens living in the UK and around 1.5 million UK citizens living in the EU.
If, for example, a couple who are citizens of one member state but are currently living in another member state gets divorced, the issue of which country they get divorced in is governed by the EU Council. Various European instruments are applicable to when such couples get divorced.
In accordance with Regulation 2201/2003 (also known as “Brussels II A” or “Brussels II bis”), there is a race to the court called the “Lis Pendens” rule. The rule holds that the first party in time to issue proceedings at court secures the jurisdiction for their divorce in a particular country. The law only works because of reciprocity between all EU member states.
UK and EU
In accordance with the EU Maintenance Regulation (Council Regulation 4/2009), a framework for jurisdiction and enforcement of maintenance awards between the EU member states should be provided. In some instances, couples may also agree in advance where any dispute about maintenance should be decided upon.
There are already existing issues and concerns within EU countries when it comes to the great jurisdictional difference between same-sex couples and opposite-sex couples. With Brexit in place, this issue will further be exacerbated specifically for those couples who are looking to leave the EU.
The current EU regulation provides protection to victims of all ages from domestic abuse. Individuals are ensured that they will be able to receive protection orders to be recognized and introduced across the EU. With Brexit in place, this approach across the EU will no longer be relevant and each country should be able to have their own requirements and laws relating to domestic violence.