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Brexit’s ‘disastrous effect’ on cases involving divorce, children and money

27 Nov 2020 / family law Print

Brexit’s ‘disastrous effect’ on cases involving divorce, children and money

Brexit will have a ”disastrous effect” on international family law, Tim Amos QC said this morning (27 November).

Speaking at the Law Society Family and Child Law conference, the prominent London-based barrister and mediator said he was not making a political point, but a practice-based one.

Every English family lawyer is against Brexit on those grounds, he said.

British judges are trying desperately to stay within the European judicial network, and international family lawyers are trying desperately to stay within the CCBE group, he continued.

“We all recognise that co-operation, and working together, is absolutely essential to all of our clients,” the QC continued.

Tim Amos QC is a recognised expert in relation to Brexit and family law and gave evidence to the British parliament in March 2019 on related matters.

Sad reality

Amos told this morning’s webinar that the sad reality is that family law has a low priority in Brexit negotiations. 

Irish nationals living in England will be profoundly affected if their marriages fail in England, he explained.

Britain will almost certainly be outside the Brussels II Regulation, he said, which recognises and enforces family law matters between member states.

Therefore, divorces will be granted in England on the basis of habitual residence in England, which will present difficulties for Irish nationals in terms of having divorce recognised in their home country.

Sole domicile

Divorces will be granted in England on the basis of sole domicile, he said.

The separate jurisdictions of Scotland and the North of Ireland, and England and Wales, will also likely diverge in terms of their legal provisions for divorce, he predicted.

“My prediction is, firmly,  that there will not be a bespoke family law agreement, and that Brussels II goes,” he said.

That will affect divorce, parental authority and child abduction, maintenance regulation, and maintenance lump sums.

For Britain to re-join the Lugano Convention, on mutual recognition of judgments, will be a matter for EU consent and approval, Amos noted.

Pension-splitting

The maintenance convention route of pension-splitting will no longer be possible, he warned. 

Needs-based capital lump-sum orders may be made, however, though this may need to be tested in court.

Tim Amos pointed out that the non-consensual movement of children across borders will also be problematic, in the absence of the CJEU.

“We always need to be thinking about jurisdiction and enforcement. How are we going to get an order and how are we going to enforce it outside Europe?”

Third state

Amos said that Irish lawyers will need to deal with England as a third state, non-EU member, on recognition and priority of cases involving divorce, children and money.

Co-incidental to Brexit, Britain will also introduce genuine no-fault on-demand divorce in September 2021, he said, in the shape of the Divorce, Dissolution and Separation Act 

“Who is going to recognise that outside the UK?” he asked.

Ireland is unlikely to recognise these divorces, as it is not a member of the 1970 Hague Convention, he said.

Recognition

The new law also only deals with divorce, and not nullity or civil partnership, so recognition and priority will be a problem.

“Is Ireland going to recognise an order by an English judge, prohibiting an Irish national from proceeding with Irish divorce proceedings in Ireland, because the English judge thinks that case ought to take place in England?” he asked.

“It is a depressing outlook,” he said.

Proceedings issued before exit on 31 December have a better chance of securing both recognition and, in due course, enforcement, he said.

“Proceedings issued after that date will be part of a brave new world, good bad or indifferent, but definitely a new world,” he said.

Crucial

Lawyers’ local foreign network of family-law friends will become absolutely crucial, he said.

‘We are going to need international co-operation. Rest assured that English family lawyers will be very keen to give you that co-operation,” he told the webinar attendees.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland