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First KLICE Comment June 2016

The EU referendum: the impact on family law of a vote to leave

David Hodson OBE MICArb is an expert on international family law.  Views expressed are his own.

This is one of a set of KLICE Comment pieces commissioned to reflect various political views. Others can be found on our EU Referendum page. KLICE has no official position on the Referendum.

 

The EU referendum has been described as the most important vote for our country in a generation. No one will vote solely on the basis of family law. But the EU involvement in family law is a microcosm of some national issues. With so many horror stories of Project Fear if we were to leave, what is and might be the family law position? I identify first the concerns about EU involvement and ambitions in our family law and then analyse the impact on areas of family law if we left.

Concerns about the EU ambitions and powers in family law

Much good has emanated from the EU in the field of family law. With many international families travelling between EU countries, we need cross-border laws. Laws on service, common divorce jurisdiction, legal aid, domestic violence, and recognition of court orders are good developments.

But coupled with this have been clear political ambitions and overarching global aims of the EU seen in its family laws. It has been a source of real tension with the UK over the past decade. There has been opposition to some proposed EU laws but the UK has often been powerless to prevent very foreign legal concepts becoming part of English family law and practice. This has often gone against the previous entire direction of the law and our foundation principles of fairness, gender equality and settlement focus.

The EU now intends that EU family laws, as with other EU legislation, should not just bind member states in cases involving other member states but in all our dealings with other countries who have no connection with the EU. It is known as ‘universal application’. So EU family law now determines how we should deal with the USA, Australia and all other non-EU countries, even though those countries operate their own national law with complete disregard for the EU. This puts us in the UK and our clients at a major disadvantage. It is not necessary. It is not agreed or supported. It is legislation much too far. EU laws should be limited to EU cases, not implemented worldwide.

The EU is dogmatic that EU member states cannot enter into bilateral or multilateral agreements with non-member states in any area on which the EU has already legislated. This is known as ‘external competence’. The EU has now legislated on almost all areas of family law and social life. Unless the EU approves on behalf of all member states, we as a country cannot now enter into international agreements with our historic close allies and other countries with which we have many connections. This has had very adverse consequences in child abduction, with abducted children being the losers. Many EU governments challenged this external competency in the European Court of Justice (CJEU), and predictably lost! This is political intentions and global reach going way beyond what was originally anticipated for the EU. It is a political/legal struggle barely known to the public and the profession.

The EU puts certainty and predictability of outcome above discretionary, more personalised means of fair outcomes. One impact is that the EU imposed a very arbitrary law to govern which country should deal with proceedings when two or more countries could do so, that  the first to commence proceedings should do so, lis pendens. In other words this is a simple first past the post or race to court which works against attempts to settle, use Alternate Dispute Resolution (ADR), save saveable marriage. It  favours the wealthier spouse who is making the break in the marriage. It is anti-family life and anti-family law settlements. The EU has been thoroughly resistant to reforming this since its introduction in March 2001. English judges have described it as very arbitrary and leading to unfair outcomes. It is totally against settlement-orientated English professional practice. Yet it is a bedrock of EU policy.

Most EU countries are of the civil law tradition. The UK and only a couple of other EU countries are the common law minority. The EU follows the civil law path, and makes laws very contrary to the English approach. Civil law countries are very comfortable with one lawyer advising both spouses on a marital agreement without independent legal advice and sometimes without disclosure. Law in England and Wales wants to know that a party has freely entered into an agreement knowing their rights and entitlements. The result is that EU law allows agreements to be binding in law without independent legal advice. Civil law countries often apply the law of another country with which a couple may have a close connection, known as applicable law. Law in England and Wales only ever applies our local law. As a consequence the EU is continually trying to persuade the UK to adopt applicable law and includes applicable law in most EU family law legislation. There are other areas of real difference. The continued feeling is that the EU follows the majority civil law tradition with little regard to the clash and impact on our common law approach. England is regarded as the European family law troublemaker who persistently seeks to maintain distinctive and historic common law approaches, believing them best for justice, fairness and overcoming gender inequalities. The EU disagrees and is frustrated it has not had its own way. It rarely seems that English voices are heard in any reform process.

Some of these elements could be overcome if there was a pulling back from the overarching social and political ambitions of the EU. This sadly seems unlikely. Instead an In vote will encourage the EU to introduce more laws against English legal traditions and approach.

Family law if the UK left the EU

So what would be the position if the UK voted to leave? What would we miss and regret? What might we not miss? What might we have in existing laws anyway? Is it a leap in the dark? Reference is made here to The Hague which is the seat of a global organisation creating worldwide laws by consensus, working with very many countries from many different legal traditions.

  • Jurisdiction for divorce. Identical divorce jurisdiction across the EU is highly commendable, sensible and attractive. But the UK could agree to have this identical jurisdiction without imposition of other EU laws.
  • Recognition of divorces from other EU countries. This is now almost automatic as a consequence of EU law. However England has a very liberal policy in recognition of foreign divorces, so not having this EU law would make little difference
  • Forum disputes, i.e. disputes over in which country the proceedings should take place, based on first to commence proceedings. Getting rid of this very bad law with its very adverse impact on practice, discouragement to resolve matters pre-court and not save saveable marriages and significantly increasing costs, would be very good indeed. England should not go back to unfettered discretion in forum cases but a halfway house could be found. Not being in the EU would mean we did not have this appalling law.
  • Recognition of children orders from other EU countries. This is commendable but we now have the 1996 Hague Convention which does similar, so no adverse consequences of leaving the EU would follow.
  • Expedited child abduction procedures based on EU law. The reality is that the UK (and some other countries) leads the way in Europe. Several EU countries do not operate returns quickly or effectively. Leaving the EU would not change the UK’s commitment to a fast timetable and return orders for child abduction work.
  • Recognition of maintenance, needs-based, orders made by other EU countries. This EU law is also in the 2007 Hague Maintenance Convention but covers countries beyond Europe so we would not lose out. Supporting the Hague Convention would encourage other countries to join up.
  • Entering into international family law Conventions, Treaties and Agreements with non-EU countries. This will no longer be prevented if we leave the EU.
  • Service of court papers for proceedings. The EU Service law is commendable but the Hague has a similar law which is worldwide and not just applicable to the EU.
  • Taking of evidence. As with service, the EU Taking of Evidence law is commendable but the Hague equivalent is equally good.
  • Legal aid. Leaving the EU would mean the UK would revert to the 1997 Strasbourg Agreement which covers similar ground.
  • Applicable law. This is been a big obstacle in the family law relationship between the UK and the EU with other civil law European countries. It has delayed introduction of some EU laws. We will not miss the continued struggles with the EU attempting to impose it on us.
  • Marital agreements. In many continental European jurisdictions one lawyer invariably acts for both parties without any independent representation. English lawyers have seen many cases where the financially vulnerable spouse has entered into a very disadvantageous agreement without independent advice. EU laws make some of these agreements binding. Staying in the EU will lead to more requirements on England to accept unfair and gender-discriminatory agreements as binding where one party has not had independent legal advice. Leaving the EU will mean this is not a risk. It is a real gender issue.
  • Adoption. This is governed by law from the Hague rather than the EU.
  • Surrogacy. There are no international laws as such but they are more likely to come from The Hague rather than the EU. The Council of Europe has just refused to make any laws on international surrogacy.
  • Forced marriage. The UK is leading the world in combating forced marriage and in any event this is often not an intra-EU issue.
  • Female Genital Mutilation. The same applies as with forced marriage
  • ADR. Although the EU law was encouraging, other countries are now leading the way (e.g. Singapore), and there is other legislation (e.g. the New York Arbitration Convention), which is wider than the EU

So England would not be at a loss if we were no longer part of the EU for family law purposes. Similar legislation is available from The Hague which is worldwide. England is a leader in the family law world in many regards and is a leading innovator of trends and practices. The UK is home to many international families from outside the EU. Our UK family law traditions are respected and followed worldwide. We are probably unaware of our influence for good in international trends and developments. EU family law is holding us back. We want to continue to work with the EU and its member states, but fundamentally we must be free to develop our law, and international law for international families, with like-minded progressive professions and countries worldwide.

Whilst losing some EU family laws might be regrettable in the short-term, there would be significant merit and benefit in the arena of family law; for us nationally, for us as a settlement-orientated family law profession, for our family justice system, for our clients both national and international, and for the countries and systems around the world with which we have close connections, have previously worked well and with whom we want to be free to continue to work.


David Hodson OBE MICArb is an English solicitor, mediator, arbitrator, an Australian qualified solicitor and barrister and a part time deputy family court judge in London (DDJ at the CFC).  He is a co-founding partner of The International Family Law Group LLP, a specialist practice in Covent Garden, London, (www.iflg.uk.com).  He is editor and a primary author of The International Family Law Practice, England’s leading textbook on international family law.  He was awarded an OBE in 2014 ‘for services to international family law’.  He is Visiting Professor at the University of Law. 

This article first appeared on DavidHodson.com, 26 February 2016, available at http://www.davidhodson.com/news/eu-referendum-impact-on-family-law-of-a-vote-to-leave. It appears here by permission of David Hodson. It draws on the concluding chapter of the author's The International Family Law Practice 2015-16, 4th ed. (Jordan Publishing, 2015). Little has changed since then.

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