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Family Law

The leading authority on all aspects of family law

15 JUN 2016

Brexit: England and Wales as a global family law leader or EU-emasculated?

David Hodson OBE

Family lawyer


Brexit: England and Wales as a global family law leader or EU-emasculated?
The below article appears in the May issue of Family Law at [2016] Fam Law 572 and has been made available, free of charge, as a service to our readers.

The EU referendum has been described as the most important vote for our country in a generation. No one will vote solely on the basis of family law. But EU involvement in family law is a microcosm of some national issues. With so many horror stories of ‘Project Fear’ if we were to leave, what is and might be the family law position?

I wrote on this subject 12 months ago in the concluding chapter of Jordan Publishing’s International Family Law Practice and little has changed. I identify first the concerns about EU involvement and ambitions in our family law and then analyse the impact on areas of family law if we left.

Concerns about EU ambitions and powers in family law

Much good has emanated from the EU in the field of family law. With many international families travelling between EU countries, we need cross-border laws. Laws on service, common divorce jurisdiction, legal aid, domestic violence, recognition of court orders are good developments.

But coupled with this have been the EU’s clear political ambitions and overarching global aims as seen in its family laws. This has been a source of real tension with the UK over the past decade. Despite opposition to some proposed EU laws the UK has often been powerless to prevent very foreign legal concepts becoming part of English family law and practice. This has often gone against the entire direction and our foundation principles of fairness, gender equality and settlement focus.

The EU now intends that EU family laws, as with other EU legislation, should not just bind member states in cases involving other member states but should govern all our dealings with other countries which have no connection with the EU. It is known as ‘universal application’. So EU family law now determines how we should deal with US, Australia and all other non-EU countries, even though those countries operate their own national law with complete disregard to the EU. This puts us in the UK and our clients at a major disadvantage. It is not necessary. It is not agreed. It is legislation much too far. Limit EU laws to EU cases, not worldwide.

The EU is dogmatic that EU Member States cannot enter into bilateral or multilateral agreements with non-Member States in any area on which the EU has already legislated. It is known as ‘external competence’. The EU has now legislated on almost all areas of family law and social life. Unless the EU gives its approvals on behalf of all member states, we as a country cannot now enter into international agreements with our historic close allies and other countries with which we have many connections. This has had very adverse consequences in child abduction, with abducted children being the losers. Many EU governments challenged this external competency in the European court, and predictably lost! This is political intentions and global reach going way beyond what was originally anticipated for the EU. It is a political/legal struggle barely known to the public and the profession.

The EU puts certainty and predictability of outcome above discretionary, more personalised means of fair outcomes. One impact is that the EU imposed an arbitrary law to determine which country should deal with proceedings when two or more countries could do so namely the first to commence proceedings – lis pendens. A simple first past the post. A race to court. This works against attempts to settle, use ADR and save saveable marriages. It favours the wealthier spouse who is making the break in the marriage. It is anti-family life and anti-family law settlements. The EU has been thoroughly resistant to reforming this since introduction in March 2001. English judges have described it as very arbitrary and leading to unfair outcomes. It is totally against our globally admired settlement-orientated English professional practice. Yet it is a bed-rock of EU policy.

Most EU countries are of the civil law tradition. The UK and only a couple of other EU countries are the common law minority. The EU follows the civil law path, and makes laws very contrary to the English approach. Civil law countries are very comfortable with one lawyer advising both spouses on a marital agreement without independent legal advice and sometimes without disclosure. England and Wales wants to know that a party has freely entered into an agreement knowing their rights and entitlements. Result – EU law allows agreements to be binding in law without independent legal advice. Civil law countries often apply the law of another country with which a couple may have a close connection, known as ‘applicable law’. England and Wales only ever applies our local law. Result – the EU is continually trying to persuade the UK to adopt applicable law and includes applicable law in most EU family law legislation. There are other areas of real difference. The continued feeling is that the EU follows the majority civil law tradition with little regard to the clash and impact on our common law approach. England is regarded as the European family law troublemakers who persistently seek to maintain distinctive and historic common law approaches, believing them best for justice, fairness and overcoming gender inequalities. The EU disagrees and is frustrated it has not had its own way. Rarely it seems are English practitioner voices heard in any reform process.

Some of these elements could be overcome if there were a pulling back from the overarching social and political ambitions of the EU. This sadly seems unlikely. Instead, a ‘Remain’ vote will encourage the EU to push for more laws contrary to English family law traditions and approach.

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Family law if the UK leaves EU

So what would be the position if the UK voted to leave? What would we miss? What might we not miss? What existing domestic and international laws might we use instead? Is it a leap in the dark? Reference is made here to ‘The Hague’, the Hague Conference on Private International Law, the seat of a global organisation creating worldwide laws by consensus, working with very many countries from many different legal traditions.

  • Jurisdiction for divorce. Identical divorce jurisdiction across the EU is highly commendable, sensible and attractive. But the UK could agree to have this identical jurisdiction without imposition of other EU laws.
  • Recognition of divorces from other EU countries. This is now almost automatic as a consequence of EU law. However England has a very liberal policy in recognition of foreign divorces, so not having this EU law would make little difference.
  • Jurisdiction disputes, deciding in which country the proceedings should take place, based on first to commence proceedings. It would be very good indeed to get rid of this very bad law with its very adverse impact in practice, discouragement to resolve matters pre-court and not save saveable marriages and which increases costs. England should not go back to unfettered discretion in forum cases but a halfway house could be found. Not being in the EU would mean we did not have this appalling law. 
  • Recognition of children orders from other EU countries. This is commendable but we now have the 1996 Hague Convention which has similar provisions, so there would be no adverse consequences from leaving the EU.
  • Expedited child abduction procedures from Brussels II. The reality is that the UK (and some other countries) leads the way in Europe. Several EU countries do not operate returns quickly or effectively. Leaving the EU would not change the UK commitment to fast timetable and return orders for child abduction work.
  • Recognition of maintenance, needs-based, orders made by other EU countries. The EU Maintenance Regulation is commendable but complex. Similar but much simpler provisions are in the 2007 Hague Maintenance Convention and, crucially, covers countries beyond Europe so we would not lose out. Supporting The Hague Convention would encourage other countries to join up.
  • Entering into international family law Conventions, Treaties and Agreements with non-EU countries. This will no longer be prevented if we leave the EU.
  • Service of proceedings. The EU law is commendable but The Hague has a similar law but is worldwide and not just EU.
  • Taking of evidence. As with service, the EU law is commendable but The Hague equivalent is equally good.
  • Legal aid. Leaving the EU would mean the UK would revert to the 1977 Strasbourg Agreement which covers similar ground.
  • Applicable law. This has been a big obstacle in the family law relationship between the UK and the EU. It has delayed introduction of some EU laws. We will not miss the continued struggles with the EU attempting to impose it on us.
  • Marital agreements. In many continental European jurisdictions one lawyer invariably acts for both parties without any independent representation. English lawyers have seen many cases where the financially vulnerable spouse has entered into a very disadvantageous agreement without independent advice. EU laws make some of these agreements binding. Staying in the EU will lead to more requirements on England to accept unfair and gender discriminatory agreements as binding where one party has not had independent legal advice. Leaving the EU will mean this is not a risk. It is a real gender issue.
  • Adoption. This is governed by law from The Hague rather than the EU.
  • Surrogacy. There are no international laws as such but they are more likely to come from The Hague rather than the EU. The Council of Europe has just refused to make any laws on international surrogacy.
  • Forced marriage. The UK is leading the world in combating forced marriage and in any event this is often not an intra-EU issue.
  • FGM. The same applies as with forced marriage.
  • ADR. Although the EU law encouraged ADR, other countries are now leading the way, eg Singapore, and there is other legislation, eg the New York Arbitration Convention, which is wider than the EU.

So England would not be at a loss if we were no longer part of the EU for family law purposes. Similar legislation is available from The Hague yet the latter’s scope is worldwide. England is a leader in the family law world in many regards and is a leading innovator of trends and practices. The UK is home to many international families from outside the EU. Our UK family law traditions are respected and followed worldwide. We are probably unaware of our influence for good in international trends and developments. But the EU in the family law field is holding us back. We want to continue to work closely with the EU and its Member States, but fundamentally we must be free to develop our law, and international law for international families, with like-minded progressive professions and countries worldwide.

While losing some EU family laws might be regrettable in the short term, leaving the EU would be of significant merit and benefit in the arena of family law: for us nationally, for us as a settlement-orientated family law profession, for our family justice system, for our clients both national and international, and for the countries around the world with which we have close connections, have previously worked well and we want to be free to continue to work.

Join the debate on Twitter @JordansFamLaw #familylaw

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