International Family Law: Brexit…one year on

One year after Brexit, there remain challenges for international families involved in divorce and separation

16 December 2021

There have been a number of wide reaching changes to family law in the UK as a result of Brexit, most of which have been addressed by legislation, but one which remains unresolved relates to the Lugano Convention – not something which is necessarily widely known about outside family law circles. However, the 2007 Lugano Convention ('Lugano'), is a treaty between the EU countries, Norway, Switzerland and Iceland. Lugano clarifies which national courts have jurisdiction in cross-border family disputes about maintenance and contains provisions on jurisdiction and enforcement. Maintenance in this context means all 'needs' based awards, which includes capital payments required to meet, say, housing needs, as well as spousal or child maintenance.

In light of Brexit, the UK applied to re-join Lugano in April 2020, but all of the signatories must agree to this and the EU Commission has recommended that the EU states reject the UK application to join. The ultimate decision on whether the UK can join rests with the EU Council, though the Commission must make a formal proposal to be voted on by the Council.

Impact of non-membership: Why does this matter?

  • Jurisdiction – Lugano provides all members with the same set of rules for jurisdiction. Without it, the UK is dependent on a variety of domestic law, depending on the type of claim being made, and in some cases (ie varying an order) there are no jurisdictional rules. This complicates the law and will make it more difficult for those acting without legal representation. It may also lead to protracted proceedings if parties argue over which jurisdictional rules should apply or whether the court has the power to make orders at all.
  • Where proceedings take place, known as forum conveniens – Lugano includes rules which deal with instances where legal proceedings are started in two different countries. The rules mean that (as was also the case prior to Brexit), the proceedings started first in time prevail and the proceedings started later are stopped. Without these rules, legal proceedings can continue in both countries. The English courts will then have to decide whether to allow the English case to continue or whether to pause it and allow the case in the other country to continue. This is a complex discretionary exercise which can take many months and cost significantly, even before there has been any consideration of the substantive issues in the case. Without clear rules determining in which country should deal with a case, there is a real risk of conflicting decisions in different countries which may in turn lead to difficulties with enforcement.
  • Recognition and enforcement – Lugano provides that where an order is made by the courts of one signatory country, other signatory countries must recognise and enforce it. Without Lugano, enforcement of such orders will have to take place via alternative international conventions, such as the 2007 Hague Convention. However, not all signatories to Lugano are also signatories of the Hague Convention meaning enforcement in those countries can be far more difficult. Even under the Hague Convention, there is an increased risk that enforcement will be refused as it is decided based on a discretionary exercise. This could lead to a situation where there is an order of the English court which is unenforceable abroad meaning it is effectively useless. 

Lugano clearly has the ability to tackle some of the challenges which have arisen regarding cross-jurisdictional family law since Brexit, but only if the UK can join it as a separate signatory. Although not perfect, simplifying the law, avoiding costly and time-consuming satellite litigation and ensuring easier enforcement, are benefits which would help international families navigating the complexities of cross-border disputes. It remains to be seen whether the UK will be allowed to re-join Lugano in the future, but for now we must continue as non-members and navigate the uncertainties as best we can. 

Article written by Michael Finnegan.

 

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Sarah Hoskinson 1

Sarah Hoskinson Partner

  • Family Law and Divorce
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