The impending departure of Britain from the EU will cast huge doubt on the current status of supremacy of EU Law in relation to Family Law in circumstances where recognition of orders between Ireland and the UK are concerned. At present there are 2 Brussels regulations known as Brussels 1 and Brussels 2.
Currently Brussels 2 sets out the basis for jurisdiction in matters relating to the divorce, legal separation or marriage annulment i.e. sets out which court is entitled to hear matters relating to these matters.
The departure of the UK from the EU will of course change all that as the EU will no longer govern litigation which emanates from the UK .In order to provide some form of legal continuity the European Union (Withdrawal) Act 2018 will enable the transposition of directly applicable already existing EU Law to British Law which will be known as “retained EU Law”.
However in our view this will not prevent huge uncertainty and confusion arising in relation to the recognition of foreign divorces. As an example it is likely that individuals who are domiciled in Ireland but are currently involved in divorce proceedings in Britain who will ultimately obtain a divorce through the British Courts could be faced with the prospect that such a divorce will not be recognised in Ireland.
The effect of the British withdrawal is that instead of EU Law having supremacy the Irish Courts will revert to the Domicile and Recognition of Foreign Divorce Act 1986 when deciding whether to recognise a UK divorce. In order to recognise a foreign divorce in a state outside the EU (a category into which the UK will fall post 31st of October) the Irish courts will only recognise such a foreign divorce where one of the parties to the divorce is domiciled in the Jurisdiction which grants the Divorce Decree i.e. in the UK.
In relation to issues such as maintenance steps are being taken so that Britain will continue to be a member of the Hague Convention on choice of court agreements and the Hague Convention on the International Recovery of Child Support and other forms of Family Maintenance Act 2007 .In order to enforce British judgements it may be necessary to issue fresh proceedings in Ireland. The position in this regard may not be clear for some time.
In order to demonstrate the significant changes that may be brought about by the British withdrawal from the EU it is useful to have regard to a Court of appeal decision in Ireland in a family law case of MH v MH. In this case a dispute arose as to whether the Irish Courts or the UK Courts had jurisdiction to hear a family law application. Solicitors for the husband had issued a special summons in the High Court which had been stamped by the High Court office shortly after 2:30 pm on the 7th of September 2015 and was served on the wife on the 9th of September 2015. On behalf of the wife an English Divorce petition was issued in the English Family Law Court on the 11th of September 2015 and was served on the husband on the 15th of September 2015. In evidence before the court it was accepted that the wife’s divorce petition in its envelope was delivered by the document exchange to the Family Court Office at 7:53am on the 7th of September 2015.
The High Court (and upheld by the court of appeal) decided that the matter needed to be referred to the Court of Justice of the European Union which held that in accordance with article 16 (1) (a) of Council Regulation (EC) 2201/2003 “the time when the document instituting the proceedings or an equivalent document is lodged with a court” will take preference i.e. the English proceedings took precedence. This meant that the proceedings then proceeded in the English court and the Irish proceedings were stayed. However post Brexit what could happen is that both sets of proceedings would proceed and if both parties were domiciled in Ireland the English divorce would probably not be recognised in Ireland.
Summary: It is very clear that there are significant challenges in establishing the precedence in relation to International Family Law proceedings and given the closeness of ourselves to the UK this will undoubtedly create difficulty with regard to parties’ instituting proceedings in either the UK or Britain where they are seeking reciprocity in the other jurisdiction.
For any advice or assistance in this area on in any family law matter please contact Brendan Dillon on 01-2960666 or info@dillon.ie
