Jonathan Goldsmith

Jonathan Goldsmith

Well done to the Law Society and Resolution, the family lawyers organisation, for their very helpful advice for solicitors engaged in cross-border family work in case of a no-deal Brexit on 29 March 2019. There has been the need for more detailed advice for some time, and now the vacuum has been filled, at least so far as it can be.

The new note supplements the Law Society’s previous guidance on family law and no-deal issued last November, because there have been further developments since then both on the UK and EU sides. On the UK side, there has been the publication of a list of statutory instruments covering various issues in civil justice. And on the EU side, there has been further advice in its recent notice of 18 January 2019 to stakeholders on ‘the withdrawal of the UK and EU rules in the field of civil justice and private international law’.

The EU guidance states in general that an EU member state will not give effect to a UK order made before exit day unless there was also the required registration procedure concluded before exit day, for instance with a court in an EU Member State. In just the area of family law, this registration process varies between divorce, finance and children matters.

Family law is generally considered one of the areas most likely to be hit hardest by a break in the current civil justice cooperation between the UK and the EU. But there are others. Those areas which are covered largely by the biggest law firms, such as company or competition law, are doubtless being pored over in internal notes within those large firms. But I think the Law Society owes a duty to that part of the profession without similar resources, namely small and medium-sized firms, to give what advice it can so that those firms can advise their clients properly in the case of a no-deal, which might happen as soon as the end of next month. The cross-border areas covered by these firms include not only family law but also commercial, contractual and small claims proceedings affecting individuals and small businesses.

The new family law note repeats one of the most crucial warnings, which doubtless covers all civil justice cooperation i.e. the importance of obtaining reliable advice from a suitably experienced lawyer in the EU Member State in which the question of recognition, enforcement or other proceedings may be involved. Notwithstanding that there are uniform EU laws across all the EU Member States, and that the EU guidance of 18 January 2019 gives some general advice applicable to all, it is nevertheless the case that practice, procedure, time periods and access to the courts or enforcement authorities can vary significantly from Member State to Member State.

Therefore, when considering what steps to take before exit day, it will be crucial for practitioners to ascertain the likely position in the EU Member State concerned by obtaining local advice. The family note points out that if an urgent application is needed to the family courts of England and Wales, evidence of this local advice may be required as a precondition. That note also points family lawyers to a reliable association of specialist international family lawyers. But there are specialist groups of lawyers covering the EU in other practice disciplines as well. 

Before looking at the areas the new note covers, it is worth reciting its precautions. Its advice is relevant only in the context of a no-deal exit. If there is any kind of deal with the EU – and not just the Prime Minister’s version - EU laws are likely to continue throughout any transition period, which is currently estimated to last around two years. And in those two years other arrangements might be negotiated.

As importantly, the note does not constitute legal advice, opinion or guidance. Nevertheless, with the uncertainty we all see, and with Brexit day possibly being at the end of next month, it is as well to be prepared.

For family lawyers, the new note covers the following areas:

  • divorce forum
  • divorce jurisdiction
  • recognition of UK divorces in EU member states
  • maintenance orders before exit day
  • financial applications proceeding on sole domicile jurisdiction
  • pension sharing after a foreign pension sharing order or agreement, and
  • children. 

Now I hope that the Law Society will team up with experts and expert groups in other subject areas such as I have already mentioned to issue supplemental and more detailed advice in view of the rush of statutory instruments and the EU notice. And what about wills advice for those with assets in the UK and the EU? And tax advice for those whose status will change from EU citizens to non-EU citizens overnight? The list of possible topics is long.