brexit

With the country now starting to come to terms with the results of the EU referendum on 23rd June, it may be a good time to consider the implications of the vote on Scottish Family Law.

It is likely that the decision to leave the EU will have a limited impact upon Family law in Scotland.  Historically, the EU has had a very limited input into the development of Family Law in Scotland.

Scotland has a long history of the independent development of this area of law, with very little legislation covering both Scotland and the other jurisdictions of the UK, let alone Europe.  It is, however, clear that the EU has had a major impact upon the very important issue of jurisdiction and the recognition and enforcement of judgements.  With the rise in movement of people throughout the EU over the last few decades this has become increasingly important, as more and more cases now have a cross-border element. 

Family lawyers are now accustomed to the so-called Brussels II bis Regulation of 27th November 2003 on jurisdiction and recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility.  In summary, this regulation sets out:

 

  • rules determining which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one country
  • rules making it easier to recognise and enforce judgments issued in one EU country in another
  • a procedure to settle cases in which a parent abducts a child from one EU country and takes them to another.

This Regulation is vitally important when dealing with any case where there is involvement of more than one Country.

 The question therefore is what now?  We have, as a nation, voted to leave the EU.  If and when we do cease to be a Member State, this regulation will no longer have effect in relation to the UK.  We will then be left with our domestic legislation.  This can be found throughout numerous acts of the Parliaments of both Westminster and Holyrood, together with certain international treaties such as the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.    The simple fact is, however, that none of these will provide a direct mirror to the position which we have at the minute.  It remains to be seen how the UK government will choose to deal with this matter.

 Interesting times are ahead, and it will be more important than ever to seek expert advice in relation to Family issues.  If you need any advice on issues involving separation, divorce, child issues, or any other family law matter, please contact one of our experienced family law solicitors based in Bathgate, Edinburgh, Dalkeith and Musselburgh.