The citizens of the United Kingdom will vote at the end of June to determine whether or not Britain will remain in the European Union. Britain has always been luke warm about membership in the EU. Already, England does not use the Euro. They use the Pound. And on top of that, England has always kept a one foot in one foot out posture with continental Europe.
But if there is a Brexit (British exit from the EU) what will happen in law cases? Especially Family Law and divorce cases? Right now, with England in the EU, there is an ease of determining legal issues and questions especially in the context of divorce and family law. Parties in the EU can choose to file their cases wherever it is most advantages to them under the Brussels IIa rules. So they file where they are nationals or where they happen to be living at the time. Also, with regard to maintenance and support issues, there is a certain facility with getting these orders enforced so long as you are in an EU member country.
But this proposed exit by England could change all that. The UK would be forced to enter into bilateral agreements with the various countries and certainly the right of English citizens to file their divorce cases in any of the EU countries would be curtailed if not completely foreclosed. This would make it harder for some filers, especially where there is a high net worth and one party is enjoys considerable economic disadvantage. We know for example, that London is the Divorce Capital of the World by virtue of its reputation of high financial payouts for economically disadvantaged spouses. With a Brexit, that same spouse may not have the luxury of bringing the case in the UK. He or she may be forced to bring the case in the jurisdiction where they are domiciled or where they are nationals – whatever the case may be. The outcome in a divorce action could change significantly from one country to the next because of the stark differences in divorce and family law. Take the UK and France for example. The laws could not be any more different especially with respect to spousal support and maintenance and maybe even “equitable distribution.”
It is safe to say that for trophy wives in particular, it is better if there is no Brexit from the EU. The Bar Council seems to agree. A recent article in the UK Law Gazette read as follows:
‘a major change or even withdrawal from these EU instruments would, in our view, bring disruption and confusion’.
The report continued: ‘It would be particularly difficult for the English family courts to cope with, at a time when (a) legal aid has been greatly reduced in this field and many more litigants are not legally represented; and (b) the family courts are undergoing and/or adjusting to major structural changes.’
But it said that while it endorses the bulk of the measures adopted relating to family law, this does not mean it has no concerns about individual measures.
The bar report also said it is likely that Brexit would make London a less attractive venue of choice for commercial dispute resolution.
It said: ‘Until equivalent arrangements had been negotiated – in itself a challenging task – there would be a period of uncertainty about the jurisdiction and enforcement regimes applicable as between the UK and EU member states.’
The bar said this would generate additional litigation, which would benefit lawyers in the short term, but would bring additional costs and delay to their clients.
The report also warned that Brexit could also affect the ability of UK citizens and businesses to enforce English and Welsh judgments abroad and vice versa. It said the outcome could have consequences for the attractiveness of the UK as a jurisdiction of choice for ‘third country businesses’.