Future of the Family Law in the Shade of Brexit
Theresa’s May speech on 17Th August was mainly about the how the UK can keep control of its own laws and therefore the question arises: how will the implication of Brexit affect family law?
Some might argue that Family Law in Scotland can survive the UK’s exit from the European Law due to its well-structured legislation on provisions on divorce and the care arrangements for children and the enforceability of prenuptial agreements. However, it is well known that Scots Family Law is widely governed by the EU law and there is uncertainty whether Brexit will or not have a detrimental effect on Scots Family Law. Hamilton Ross Solicitors identified the family law issues which might arise when the dust has settled.
1. How your divorce will be affected?
The provisions on divorce in Scotland are significantly governed by the Brussels-II-Bis regulation. There is a requirement imposed by the regulation that a couple who meet, live and marry in Scotland automatically fall under the Scots Law jurisdiction. Thus, the regulation might not be necessary used in the majority of the cases. However, if dispute involves EU jurisdiction and Scotland and other EU member state have jurisdiction on divorce it is the court where the case was lodged first should prevail. The snooze you lose principle.
2. How your children will be affected?
Under Children (Scotland) Act 1995 welfare of a child is a primary concern. The same principle is set up by the Brussels-II-Bis which regulates jurisdiction on parental responsibilities. The welfare might be undermined if the process on divorce is unclear. Children are usually the ones who are stuck in the middle of this battlefield therefore it is important to determine which jurisdiction should prevail with results in less harm to the children.
3. What happens if the child is abducted to another EU country?
Protections for children in the case of abduction provided by the 1980 Hague Convention on the Civil Aspects of International Child Abduction are enhanced by Brussells-II-Bis. It imposes certain time limits on the cases to be resolved. Time is extremely crucial when children are taken away from their parents. It is uncertain how long the abduction cases will take when Brexit is implied.
4. What happens to enforcement of preputial agreements and maintenance orders?
Preputial agreements might be invalid if UK doesn’t have similar legislation which regulates these issues. Maintenance orders might not be enforced when UK ceases to be a part of European Union,
As time passes the commencing of Brexit gets closer and closer, therefore changes in Family Law and procedures are unavoidable. The only way we can protect you and your family is by giving a regular updated advice on how Brexit will or not affect you and your family. Please don’t hesitate to contact Hamilton Ross Solicitors by e-mail if you have any further questions.
This blog post was written by Anastasija Kornejeva, LLB (Hons), currently studying the Diploma in legal PracticeView all →