By David Hodson OBE MICArb
The UK leaves the European Union at 11 PM on 29 March 2019. At the time of this note, 26 October 2018, it is not yet known if there will be any deal and, more important for family lawyers, whether there will be any transition period. In these circumstances what practical steps should be taken by family lawyers in the UK and in the EU with any actual or potential UK/EU cross-border cases? This note follows a speech given by the writer at the ERA annual family law update conference at Trier, Germany. It relates only to divorce and finance, and does not cover children issues
Lawyers like certainty, clarity and as much advance notice as possible of imminent changes in law or practice. In that way they can better advise their clients, take any necessary precautionary steps in advance and obtain advice from other lawyers where there is a cross-border element. But for reasons unnecessary to detail here, the UK leaves the EU in only five months time yet it is still not known if there will be any deal and crucially if there will be a transition period whereby, as it is presently understood, existing EU laws will continue to operate and be reciprocated throughout the transition period.
So what steps should be taken by UK lawyers and EU lawyers with actual or potential cases with cross-border aspects? The following is only suggested guidance for practical action. Some will not be possible. Some will not be relevant. But it is appropriate and wise to consider. Some or all will not be relevant immediately if there is a complete reciprocity during any transition period.
1 Get proceedings finished on or before 29th of March 2019 in any UK case with an actual or potential EU involvement or any EU case with actual or potential UK involvement. This probably will not apply if there is a transition period although it will be essential to look at the exact terms. This will be of particular relevance in two sorts of cases. First, UK divorces with an EU non-1970 Hague Convention country. (Incoming EU divorces are unlikely to have difficulties in recognition given the liberality of UK recognition laws.) Secondly, maintenance orders if it is thought 2007 Hague Convention provisions may be insufficient
2 If it is not possible for proceedings to be finished, take advice now in the other country on what will be the likely impact on having an order after March 2019, or any subsequent transition period. By other country this is the UK if an EU matter or in the EU member state if a UK matter. What will be needed later in the proceedings to give a higher likelihood of recognition and enforcement? How will the other country assist in recognition and enforcement? Look ahead, plan ahead and take advice now
3 If there are no proceedings yet, start them now and in any event on or before 29 March 2019, or any subsequent transition period if identical provisions. Within the Draft Withdrawal Agreement being negotiated between the UK and the EU there are already some very good and workable transition arrangements for ongoing proceedings, although the final Agreement is of course awaited. The UK is a very reasonable and pragmatic jurisdiction in respect of the realities of ongoing proceedings already commenced. Nevertheless it may well be wise and sensible on behalf of a client to make sure the proceedings have at least been lodged and, dependent upon the nature of the proceedings, either issued and/or served.
4 Don’t enter into maintenance agreements or orders on 30th or 31 March 2019 in any case in which either it is a UK maintenance agreement or order or there may be the necessity of recognition or enforcement in the UK. The present anticipation, subject to any transitional arrangement, is that the UK leaves the EU on 29 March 2019 at 11 PM and with it the EU Maintenance Regulation and on Monday, 1 April 2019 the UK will be a signatory of the 2007 Hague Maintenance Convention in its own right. This leaves the potential limbo period on the Saturday and Sunday when the status of such agreements or orders are, at best, uncertain. Courts should not be making orders on those days. Clients should be advised not to enter into maintenance agreements on those days. Lawyers should be alert.
5 EU lawyers must be aware that once the UK leaves the EU, the separate countries in the UK should be treated as separate jurisdictions for any forum and other cross-border issues. This is again subject to any potential transition period. Moreover, as part of the withdrawal from the EU, it has been suggested that some powers presently with the EU and coming back to the UK will be devolved from the Westminster Parliament to the separate countries in the UK. More details are awaited. The primary differential is between Scotland on one hand and other three countries on the other, given that Scotland has a quite different process, arrangements on divorce and financial outcomes. Advice should be taken in each individual country.
There will undoubtedly be more matters arising as the weeks and months go by approaching the end of March 2019 and The International Family Law Group will continue to provide updated notes and bulletins of suggested practical steps and guidance.
David Hodson OBE is a co-founder and partner at The International Family Law Group LLP, London. He is an English solicitor, arbitrator and mediator and also an Australian qualified solicitor, and sits as a part-time family court judge at the Central Family Court. He is an Accredited Specialist (with portfolios in Substantial Assets and International Cases), a Member of the English Law Society Family Law Committee, a Fellow of the International Academy of Family Lawyers, a Fellow of the Centre for Social Justice, and a member of the Family Law Section of the Law Council of Australia. He is author of “The International Family Law Practice” (Jordan’s 5th edition Dec 2016). He is honorary Professor at Leicester University and visiting Professor at the University of Law. He received the OBE in 2015 for services to international family law.
David Hodson OBE MICArb
The International Family Law Group LLP
© October 2018