How will cross-border family legal disputes be settled after the UK divorces from the EU? Consuls found out at the Embassy Family Seminar hosted by the International Family Law Group LLP
After Brexit, will a UK marriage or divorce still be recognised in an EU country (and vice versa)? Will cross border child maintenance and protection orders be enforced? These were just some of the questions confronting consuls at the annual Embassy Family Law Seminar co-hosted by the International Family Law Group LLP (iFLG), the Embassy of Romania and the Consular Corps of London.
Addressing the seminar, keynote speaker iFLG partner David Hodson reassured consuls that during the transition period until the end of December 2020, not much will change. All existing EU family laws and procedures will continue to apply and any rulings by the Court of Justice of the European Union will be binding.
During the transition period the UK will not be able to enter into international treaties and it will have no more direct involvement in EU law making.
He added that work was already underway to reach a new agreement with the EU to protect the interests of international families.
The less good news is that finalising future arrangements to ensure continued cross-border recognition and enforcement of judgements is an ambitious task and will take time. “With all the laws that will need to change, a year will not be sufficient, we need more time,” Hodson cautioned.
One option, according to Hodson, is to have a “bespoke agreement” with the EU so that EU laws continue to apply as if the UK were still a member. “Unfortunately there is no current model for us to look to,” he said.
Alternatively, the UK could simply adopt EU laws into its national laws. However problems will arise when EU laws are updated, or UK laws change – will there be reciprocity? There is also the inevitable issue of UK diverging from EU law. Some EU laws are unpopular in the UK such as the so-called ‘race to court’ for jurisdiction (‘Eurostar divorces’), where precedence is given to the jurisdiction where proceedings start first. Because the outcome of a divorce differs widely between jurisdictions this approach (lis pendens) discourages reconciliation and negotiation. The UK prefers the common law principle of ‘connectedness’ to a jurisdiction (forum non conveniens).
A third way is for the UK to adopt a more “pan-global” approach, added Hodson, which would suit the UK’s flexible, common law tradition, which is more open to other legal traditions such as Islamic law.
“The EU must find a way in which the UK, with its huge international family traffic, can still have reciprocal recognition and enforcement,” urged Hodson. “Whatever the political aspects are of leaving the EU, all concerned must work to the best interests of international families and their children,” he concluded.
Consuls also heard a presentation on the role of CAFCASS (Children and Family Court Advisory Service) in court proceedings involving children from Mihaela Ionescu and Angela Adams. IFLG Managing Partner Ann Thomas gave consuls practical advice on child relocation and the powers of the English Court in these complex cases. IFLG partner Lucy Loizou addressed consuls on the reform of British domestic abuse laws (an issue that migrant spouses, in particular, are vulnerable to) and the international context of domestic violence orders (the so-called Istanbul Convention).
Are embassy marriages recognised in England?
At the seminar, consuls asked the panel whether marriages performed in embassies are recognised under English Law. The answer, according to iFLG’s Stuart Clark, is no – unless the embassy or consulate has registered in England as an “approved premises”. So while the marriage might be recognised in the country of the consulate, it would not be recognised under English law.
While English law is very liberal in its recognition of foreign marriages, any ceremony within the territory of England and Wales must comply with English law and marriage procedure in order to be a recognised marriage. For these purposes, weddings in embassies and consulates are considered marriages in England. They are not treated as a foreign marriage and/or according to foreign law.
Looking further afield, any marriage taking place in any embassy or consulate across the world must be entered into in accordance with the formalities required under the law of the country in which the embassy or consulate is geographically located. A marriage entered into, for example, in the Ghanaian Embassy in Germany must comply with the German legal formalities if it is to be recognised in England.
This has important ramifications because recognition of marriages is critical for spouses living in the UK when it comes to matters such as immigration, tax, state benefits, Wills and inheritances.
For a detailed summary, read here