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Brexit: stay in or leave? Nicola Mitchell, Director & Head of Family gives her views

Nicola Mitchell, Director and Head of the family department here at QSKP has been considering, along with her team, the possible effects of ‘Brexit’ on the legal system, specifically from a family lawyer’s perspective. She’s provided a ‘snapshot’ of their thoughts below.

Divorces between English and Welsh nationals residing in the UK are unlikely to be affected by Brexit. However where there are jurisdictional issues (i.e one or both parties residing outside the UK), Brexit could bring about an end to the ‘rush to Court’ phenomenon which is currently governed by EU Regulation. Rush to Court is exactly as it sounds: one party tries to seek to issue their application first, generally in England or Wales, due to the fact that the Courts here are regarded as one of the most generous in Europe. It is highly likely that the rush to Court would change if we left the EU, although unless you’re the spouse of a non-British-domiciled billionaire, it’s unlikely to affect you. If Brexit happens then we will simply have to wait and see whether London continues to be the ‘international divorce capital’ of the world.

Recognition of Children Orders from other EU states was previously set up through the Brussels II Regulation, however it has now largely been superseded by the transcontinental 1996 Hague Convention. Given that all EU states are Hague Convention signatories then leaving the EU is unlikely to make much of a difference.

Legal Aid is likely to remain relatively unaffected by Brexit. Although the UK would lose the EU Legal Aid Directive, similar provisions exist in the 1997 Strasbourg Agreement and therefore in practical terms, it’s unlikely that the status quo would be particularly different in the event of Brexit.

Mediation / Non-court dispute resolution was particularly pushed in the UK by virtue of the EU Mediation Directive. However, since being implemented in 2008 both family and non-family areas of law have implemented reforms to encourage the use of alternative dispute resolution. In fact, since the introduction of the Children and Families Act 2014, it is now a requirement to attend a Mediation Information and Assessment Meeting (MIAM) before issuing either an application for a Financial Order in divorce proceedings or an application for a Child Arrangements Order. Having been spurned on by the EU Directive initially, the UK appears to be taking the initiative and pushing this area forward along with other leaders such as the U.S and Singapore, amongst others. Brexit, again, is unlikely to have much of an effect in this area.

Conclusion – It’s unlikely that Brexit would have a significant effect on Family Law in the UK. Certainly there would be some disadvantages such as increased delays and increased costs in international proceedings, along with less robust child abduction protection. At the same time, Brexit would also allow the UK to depart from EU legislation, some of which can be quite restrictive, and would allow the UK to pursue its own aims and agendas. The UK is already leading the world in many areas such as promoting early settlement and mediation, combating forced marriages and equality in divorce settlements. Ultimately, Brexit is likely to make little difference to the UK’s continuing role as one of the best legal systems in the world“.


Posted in: Family, News

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