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Brexit: UK family law can improve, say lawyers

Leave vote provides opportunity for improved legislation but 'long and complex' process awaits

1 July 2016

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The UK's exit from the EU will not lead to wholesale changes in UK family law, which has the opportunity to improve, prominent family lawyers have said.

As the legal profession comes to terms with the referendum fallout, family lawyers have reflected upon the potential impact of the UK's divorce from the EU.

Marilyn Stowe, a senior partner at Stowe Family Law, said: 'Overall, I do not expect substantial changes because I expect we will import EU law that works well, e.g. governing jurisdiction as opposed to our own "forum conveniens", whilst I hope we will overcome the "race to issue" in divorces. There are non-EU fall backs in relation to other areas, e.g. enforcement and child abduction. Overall, there may even be an improvement which better suits our law.'

David Hodson OBE, solicitor at International Family Law Group LLP (iFLG), added that Brexit 'may be a good opportunity to consider other much-needed reforms of English law including no fault divorce, binding marital agreements, and cohabitation law'.

Nicholas Bennett, a partner at Farrer & Co, who specialises in international divorce disputes, commented: 'Despite Brexit, the UK government may choose to retain common European rules for divorce and maintenance jurisdiction as part of domestic law. This will make a difference to whether European couples living in the UK can divorce here, and the status of any pre-nuptial agreement they may have signed under their local law.

'Whatever happens, the UK will remain committed to a range of other international obligations such as the Hague Convention on International Child Abduction, so significant aspects of family law will continue as before.'

The EU imposes many regulations on the UK that significantly impact UK family law, particularly on the jurisdiction of disputes and the enforcement of decisions.

For instance, the 'race to court', a consequence of Brussels II Revised, has led to injustice in divorce cases where the two parties are closely connected to multiple jurisdictions.

Felicity Shedden, consultant at Family Law in Partnership (FLiP), said the UK should focus on the 'long and complex' process ahead as its family laws are reformed.

'The immediate impact of Brexit is likely to be felt in family law long before the mechanics of our departure from Europe are finalised. With the stock market in turmoil and the value of sterling plummeting, valuing a property, a pension fund, or shares is a high-risk business at the moment.

'Anyone looking to negotiate a settlement is going to have to think long and hard about how the volatility of the market will affect the fairness of any proposed deal.

'In the longer term, family lawyers will feel the impact of changes in the regulations which govern jurisdiction of family disputes, and enforcement of decisions. As the European regulations which currently provide the framework for these issues fall away, we will need to replace the regulations with new rules, which will need to be negotiated and agreed with other countries. It remains to be seen what kind of timescale this will require, but inevitably it's going to be a long and complex exercise.'

To help family lawyers in the UK and overseas, and those involved in family court proceedings, the iFLG has launched a free Brexit family law helpdesk which provides up-to-date information on the impact of Brexit on family law.

Hodson said the present and future uncertainties that clients and lawyers face was the main reason for setting up the helpdesk.

'As an international family law firm, we are in a very good position to understand a number of the issues of what laws are likely to be impacted by coming out of the EU as to both international and domestic. If we can provide good and reliable information we would be pleased to do so. It is entirely free but why should we not assist fellow practitioners?'

Hodson said he hoped the helpdesk would reveal information which may be gathered in pockets and may be available to very distinct specialists.

'As a practice we are of course acting for private clients on ordinary fee-paying basis. But many of us are involved in professional organisations, in law reform organisations, and supportive of disseminating information to domestic and international family lawyers.

'We happen to regard this as part of what it means to be a professional and to share the opportunities which come our way. This is a continuation of other elements of the work we do.'

Matthew Rogers is a legal reporter at Solicitors Journal @sportslawmatt matthew.rogers@solicitorsjournal.co.uk

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Divorce EU & International