As the hype surrounding the referendum begins to abate, family law practitioners are beginning to wonder how the exit negotiations will affect UK family law. Despite our EU membership, there have always been key differences between UK family law and that of Europe which will remain unchanged.
For example, unlike European courts, the English court has the power to transfer property and redistribute capital. This is why London is widely regarded as the divorce centre of the world and the ‘out’ vote will have no impact on this. Likewise, some of the most important child conventions, such as the abduction convention, are worldwide in scope.
So what parts of UK family law do fall under the EU regime? One important area is which court should hear the case. Under EU law, the court where the petition is issued first is the one that deals with the divorce and financial settlement. While this can lead to unattractive petition races, the alternative, where jurisdiction is challenged because the country is not the closest country to the family, is less attractive.
While we do not know what will change, what is right is that we will be able to make laws that recognise the English common law approach and not the European code-based approach.
One thing we can be sure of is that family law will be well down the priority list at Whitehall. Perhaps David Cameron was right to congratulate himself in his resignation speech for introducing same-sex marriage. Given the volume of what parliament must now consider, such a fundamental piece of legislation would be unlikely to happen now.
Frances Sieber, partner, Spring Law, London WC2
