My clients are now asking almost daily questions about what Brexit means for their family law case.

Until recently all lawyers could say was “We don’t know what will happen politically first of all, and family law just isn’t very important in the scale of all the issues.”

Now it’s different shortly before a promised Brexit which really does affect potentially every aspect of social, and economic life.

So, in family law terms what will we lose if we abandon EU family law rules? Well, quite a lot. But first I should mention some fake news about European law.

Existing EU family law does not change our substantive English law on the rules judges apply to decide children disputes and divide assets, or for example how to apply a prenuptial agreement. Judges don’t apply foreign law in English cases – for instance the law of a foreign couple getting divorced here. Although this power exists for judges in other EU countries, we have one of our famous opt outs.

But what EU family law does do for us is provide clear rules on how to decide which court has jurisdiction. With cross cultural marriages or children moving across borders that provides essential clarity. It also provides rules on how to enforce judgments abroad. Again essential, if you want maintenance enforced, for example. All of this flows from cross-border movement of people.  None of this is a new phenomenon. I have an old French law book published 130 years ago which provides for how to deal with disputes for private individuals caught between different legal systems. So “plus ca change, plus c’est la même chose”.

Without these EU rules many legal disputes across borders will become more complex and generate bigger fees for lawyers since courts of different countries can have a battle over who keeps the case. Most busy family lawyers I know don’t want a return to those disputes.

These are the rules we will risk losing if we leave the EU.


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