Separation anxiety: Brexit and divorce proceedings

16/05/2017

Brexit will significantly affect divorcing couples where there is an interjurisdictional dispute involving Britain, writes Keith Walsh in the May Gazette.

The consequences of jurisdictional disputes in family law are different to those in civil or commercial law. Family law applies to the private life of individuals and to their family life. It is a far more intrusive and personal form of litigation than almost any other.

The length of time it may take to litigate a divorce or separation, and its costs, has a considerable impact on the lives of those involved. Any further complication of an already detailed and complex litigation process will adversely affect both litigants.

A changing regime

The legal regime currently in place between Ireland and Britain in divorce, separation, annulment, and parental responsibility is governed by Brussels II bis (Council Regulation 2201/2003). Maintenance obligations are excluded from the scope of this regulation, since they are covered by Council Regulation 44/2001.

This is likely to change with Brexit. In divorce, legal separation, annulment, and parental responsibility cases in member states, Brussels II bis deals with issues of jurisdiction, service, and recognition and enforcement of judgments. It does not deal with substantive laws, but could be viewed as dealing with the more technical aspects.

As Britain will no longer be part of the EU, Brussels II bis will not automatically apply to them. Britain may choose to recognise the rules set down in Brussels II bis and the Maintenance Regulation in relation to jurisdiction, but it appears more likely that there will be a move to impose British law where possible.

Gauging the impact

Writing in the May 2017 Gazette, Family and Child Law Committee chair Keith Walsh looks at how this change will impact divorcing couples – including those who can least afford it.

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