The short answer is nobody seems to know for sure. And depending on who you talk to, the predictions run the gamut from “it will have very little real impact” to “it risks disruption and confusion in Family Law.”
The Bar Council – the UK equivalent of the American Bar Association – published a report about its prognostications for BREXIT and family law practice. According to the Law Gazette, this, is in part what the Bar Council had to say about it:
The Bar Council has published a ‘neutral’ report analysing the legal and constitutional implications of Britain leaving the EU and examining the laws which could be affected by the EU referendum.
The report says that EU measures have had a significant beneficial impact on family law, an impact which is still growing. These include having uniform jurisdictional rules for divorce proceedings through Brussels IIa and maintenance proceedings through the Maintenance Regulation.
It said that although neither measure is perfect, ‘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.’
Britain’s top lawyers are not very bullish on the situation. A group of them recently gave testimony to the justice committee and one solicitor, Daniel Eames, said this:
“Brexit is going to have a huge effect on family law, especially for those families whose parents are of different EU nationalities. In 2015 some 27.5% of children born in England and Wales had a foreign mother. There will also be implications for British expat families living in the EU unless agreements are reached to protect them.
“At the moment, a divorce granted in England (and Wales) is automatically recognised everywhere in the EU (except Denmark). If the EU divorce regulation, known as Brussels IIa, no longer applies then the English Court will have to decide whether it, or a competing EU jurisdiction, is the most appropriate forum.
“This will be expensive and complex for the litigant and it also means that there is no guarantee that the English order will be recognised in the other EU state. There could also be cases where there are conflicting decisions.
“Theresa May’s proposed Great Repeal Bill doesn’t work for family law as it requires reciprocity as other EU states won’t give precedence to our proceedings if they are issued first in time and won’t recognise our judgments. At the same time we will be stuck with some of the limitations of EU law without any of the benefits.
“We could also potentially lose laws which help with the recognition of domestic violence orders in other EU states and with the automatic enforcement of children orders and maintenance orders made by consent.
“The government needs to negotiate new agreements with the EU. If it does not then Brexit will have a huge effect on international families living in UK, not to mention the already under-resourced family courts and a whole generation of family lawyers who have only ever known EU regulations.”
So they predict a tough time for the profession and for the family law bar and for the courts. But this is not necessarily a uniform view in the UK Bar. Some feel that post-Brexit, it will be “business as usual.”
It is difficult to predict, I think, which point of view is correct: that it will be business as usual versus that it will be disruptive or even destabilizing. Perhaps it will be somewhere in the middle. We will have to wait and see what happens after prime minister Theresa May actually goes ahead and pulls the trigger. But it is a very interesting situation going on across the pond.