It is important to note that the EU has had very little impact on substantive family law in Scotland. We have our own legislation on issues such as financial provision on divorce, the care arrangements for children and the enforceability of Prenuptial Agreements. As such, we do not expect Brexit to have an effect on the substantive law being applied in Scotland.
However, our membership of the EU does impact widely on other areas of family law. It is probably a little known fact that whether a Scottish court has jurisdiction to deal with a divorce is first and foremost a matter of EU law, specifically an EU regulation informally referred to as Brussels-II-Bis (or Brussels 2 revised). If a couple meet, marry and live their lives in Scotland they will inevitably fall within the EU requirements for the divorce being dealt with in Scotland. Therefore, in the vast majority of cases, no consideration of this EU regulation is necessary.
Nor does it apply to any competing claims regarding jurisdiction between England and Scotland – there is separate UK legislation to deal with these matters which will be unaffected by Brexit. However, where other EU jurisdictions are involved, Brussels-II-Bis has a significant role to play. For example, where Scotland and another EU Member State both have jurisdiction for a divorce, it regulates that the member state in which divorce proceedings are raised first will prevail in the event of any dispute – there can, therefore, be a race to the courts to secure jurisdiction in a country more favourable to one of the party’s claims. This can significantly impact upon the advice tendered to clients in those circumstances, and on the outcome, depending on where the matter is ultimately litigated.
In cases involving children, the best interests of the child is always the primary consideration. That principle is enshrined in Scottish legislation – the Children (Scotland) Act 1995. Any decision affecting a child’s welfare is to be made by the court where the child is habitually resident.
Again, Brussels-II-Bis regulates any conflict between Member States in respect of such cases. Separately, the UK has ratified the 1996 Hague Convention on Parental Responsibility and Protection of Children, which largely mirrors the terms of Brussels-II-Bis. This Convention would remain in place in the event of an exit from the EU, and again it is, therefore, the case that Brexit is unlikely to have a significant effect on the jurisdiction of courts in respect of children.
A related matter is that of child abduction. The 1988 Hague Convention on Civil Aspects of International Child Abduction, to which the UK is a signatory, governs cases where children have been taken from their home to another country (both within and outwith the EU). The UK is a signatory to this convention quite separately to its Membership of the EU.
However, the provisions in Brussels-II-Bis expand on the protection of the Hague Convention, and the additional protective measures it put in place in child abduction cases could be impacted post-Brexit.
Brexit debates have centred on free movement of people, but another fundamental principle of the EU is free movement of judgment – in other words a judgment issued by courts of one Member State being enforced by another Member State. Brussels-II-Bis makes provision for direct enforcement between other Member States, both in respect of divorce and in respect of arrangements regarding children. It must be a concern that Brexit will affect how freely judgments from the UK can be enforced in EU Member States, and equally how well judgments from other Member States could be enforced in Scotland.
For family lawyers contemplating how the EU will affect our clients in the future, there are still many unknowns. A revamp of Brussels-II-Bis is currently underway which may in fact come into effect before Brexit, perhaps giving our clients even more to lose post-Brexit. What impact Brexit has on separating couples in the future will ultimately depend on the minutiae of the UK’s departure from the EU.
Arguably, Brexit will not affect the vast majority of separating couples, but for those with connections to other EU jurisdictions, there is a tremendous amount of uncertainty ahead. While perhaps a niche in the wider Brexit discussion, given the potentially serious and far-reaching consequences for some families, it is to be hoped that these issues will not be overlooked when the time comes.
Sally Nash is a Senior Associate and Mara Schmueckle is a Solicitor wit Turcan Connell