With the debate on the referendum on Europe hardly out of the headlines since the official referendum date was announced, those who have formed relationships with European Union (EU) citizens may be left wondering how withdrawal from the EU would affect their families.
When it comes to international issues, there are always four aspects to consider: WHERE will the case be heard? WHICH country’s laws will be applied? WHAT does the law actually say? HOW can a judgment of a court in one country be enforced in another? Taking each of these in turn:
WHERE will cases be heard?
Divorce and Relationship Breakdown
The right to freedom of movement throughout the EU has made it more common for couples to originate from different member states of the EU, or for couples from the same member state to reside together in a different member state. When there is a breakdown in these relationships, the question arises where they would need to raise court proceedings.
Jurisdiction with the EU is governed by the Brussels II bis Regulation (formally European Council Regulation (EC) NO 2201/2003). The focus of this legislation is on the place where the parties are or were last habitually resident. The Regulation only covers cases where there is a question of which EU member state would be the most appropriate forum. It does not affect cases where there is a question of whether Scotland or England is the appropriate court or cases where the question is between Scotland and a non-EU country/Denmark.
Following an exit from the EU, therefore, there would be some uncertainty regarding the appropriate forum for divorce, separation or nullity proceedings for couples with ties to more than one EU member state. Cases between Scotland and England and cases between Scotland and non-EU countries would not be affected.
The United Nations Convention on the Rights of a Child states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. This principle has been enshrined in Scotland by way of the Children (Scotland) Act 1995.
As part of this, it has long been considered that decisions affecting the property and welfare of a child are best made in the place where the child is habitually resident. Brussels II bis confirms this by stating that the courts of a child’s habitual residence have jurisdiction where there is a conflict between member states. Importantly, the UK and most EU member states have 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, which means that an exit is unlikely to have a significant effect on the jurisdiction of courts with respect to children.
Finally, there is the question of how courts will deal with children who have been removed from the country of their habitual residence. The 1980 Hague Convention on the Civil Aspects of International Child Abduction, to which the UK is a signatory, governs cases where children are taken to a country which is also a signatory. All EU countries are signatories. The convention requires the return of the child to the country of their habitual residence.
The EU has expanded on this, and Brussels II bis requires that the matter be dealt with by the courts within six weeks. It also limits the discretion of a court to refuse to order the return of a child. Should the UK leave the EU, the Hague Convention would remain, but the additional measures of Brussels II bis would be affected.
WHICH country’s laws will be applied?
Within the EU, some member states have entered into the Rome III Regulation, which governs which member state’s laws should be applied in cross-border divorces. This is slightly different to the question of which court will hear the matter, and may mean that, for example, a court in Spain is asked to apply Italian law. The intention of this regulation is to reduce the instances of someone filing for divorce in a country where they consider they will receive a better settlement (known as forum shopping).
The UK did not join the Rome III Regulations and accordingly it does not apply to cases raised anywhere in the UK. Scottish courts apply Scots law and would continue to do so following an exit from the EU.
WHAT will the law say?
The EU has had very little impact on substantive family law. Rules regarding everything from whether pre-nuptial agreements are enforced, whether foreign marriages/civil partnerships are recognised here, how financial provision on divorce works and how child custody is decided are all set by each individual country.
An exit from the EU would therefore not have an effect on the substantive law being applied in Scotland.
HOW can decisions be enforced between countries?
Beyond the freedom of movement for persons, goods and services, the EU strives for what it refers to as the free movement of judgment. This means that a judgment issued by courts of one member state is to be enforced in all other member states. Brussels II bis specifically provides for certificates which are to be completed by the courts of a member state on request of one of the parties, which allow the judgment to be directly enforced in other member states, both in respect of divorce and in respect of arrangements regarding children.
An exit from the EU would affect how freely judgments from the UK can be enforced in other EU member states, and equally. how well judgments from other member states could be enforced here.
For UK citizens residing in Scotland, an exit from the EU is unlikely to have a significant effect on these issues. Where, however, there is any element of the case which has links to other member states of the EU, an exit will affect where the case can be heard and how easily judgments can be enforced. The extent and nature of any change is impossible to predict, and will likely form part of the negotiations which would follow an exit-vote.