The European Union (EU) has a limited role in family law matters. Each individual member state has its own rules about separation, divorce, maintenance of spouses and children, custody and guardianship and other family law matters.
It is important to note that EU rules in the family law area generally build upon the international conventions which already exist. For example the Brussels II Regulation, Europe’s most sweeping piece of family law regulation, builds upon the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations.
If the UK were to leave the European Union, the applicable regime in cases would be the one provided for by the International Convention which regulates the matter concerned. If, for example, the matter concerned a divorce or legal separation then the Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations would apply to allow the recognition of divorces and legal separations, which follow judicial or other proceedings, to be officially recognised in a contracting state and ensure its legal effect.
In cases where the UK is a signatory as a member of the European Union, rather than a country in its own right, like in the 2007 Hague Maintenance Convention, a mechanism of succession or accession should be envisaged early on, to avoid legal limbos which could behighly damaging to the welfare of British citizens, families and particularly children.
On the whole, the aim of EU intervention is to offer citizens of the member states legal certainty in cross border family law situations by:
- ensuring that decisions made in one country can be implemented in another
- trying to establish which country has jurisdiction to hear a particular case.
In this spirit, the continued participation of the UK into the Regulation (EC) n. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligation should be encouraged, as the UK is not bound by the 2007 Hague protocol. The law currently applied to maintenance obligations in the English Courts is English law, but the mechanisms provided by the Maintenance Regulation make the recovery of maintenance easier, quicker and cheaper.
It is of particular importance that the preservation of the close collaboration between courts and national welfare authorities afforded by the Brussels II bis Regulation in matters of children and jurisdiction; recognition and enforcement of children orders with the abolition of the exequatur; child protection and child abduction is maintained.
More specifically, the Brussels II Regulation has been successful in:
- Fixing the principle and the structure of a hierarchy of jurisdiction
- Giving opportunity to transfer cases if best for the child and best for the case.
- Providing a much improved automatic system of recognition of contact orders.
- Providing easier enforcement of children orders.
- Building on Hague on child abduction and strengthening the basic principles.
It is encouraging that the Government has decided to opt-in in the proposed revision of the Regulation and the Law Society Brussels Office proposes to engage fully in the process of revision, including on the matter of the matrimonial lis pendens rule, which can create an unhelpful “rush to court” in divorce proceedings.
The Law Society Brussels Office would also like to see a continuing participation of the UK in the Regulation (EU) 606/2013 on mutual recognition of protection measures in civil matters, referring specifically to any protection measure aimed at protecting victims of violence. In this context, the UK should consider ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence.