Family law costs will rise after Brexit, advocates believe

Family law disputes involving Scottish people will become less certain and probably more expensive after Brexit, the Faculty of Advocates said today.

Faculty's comments came in a response to a circular letter from the Scottish Government, seeking views on the approach ministers should take to EU family and civil law measures in the context of Brexit.

Many family law matters involving other EU member states depend on agreements by which the courts and legal authorities accept and recognise each others' processes and decisions, and this reciprocity will be lost when the UK leaves the European Union.

As a result, Faculty points out, "it is one of those areas where European Union law cannot be transposed wholesale into domestic law and in which further action to deal with the consequences of the lack of reciprocity will be required".

Some commentators have suggested that Brexit would make the law simpler, but the advocates "fundamentally disagree". They add: "The EU regulations have focused on reciprocity and certainty. Removal of the regulations makes the law less certain and is likely to increase the cost of litigation. This needs to be factored into the provision of both the court service and legal aid."

The Government's letter floated the idea of recognising judgments from other EU member states even in the absence of reciprocity, on the basis that this might increase the chances of Scottish judgments being recognised abroad, but Faculty warns that the key issue is more likely to be enforcement. It cautions: "It may be a forlorn hope to think that if Scotland voluntarily makes favourable arrangements for enforcement of orders from EU states, those states will give some sort of favourable treatment to Scottish orders, when the status of the UK will in future be that of a third country, non-member state. The likely effect of such a generous gesture may be to abandon a potential negotiating advantage which could be useful in the future."

And whereas the letter suggested that in some areas such as jurisdiction, it would be necessary in the short term at least to revert to the position before EU provision was introduced, in Faculty's view "the most pressing issue in this area" is the rules on dealing with proceedings raised over the same matter in different courts, without which there is a risk of conflicting decisions as well as additional expense. "It may be pointless for a Scottish court to decide it is the most appropriate forum, if that is not going to deter a court elsewhere from continuing with litigation on the same point. Scottish residents will be at a permanent disadvantage as they may establish that their case should be heard by a Scottish court, but if (say) a French court where the litigation started first presses on, they risk securing a useless Scottish order that cannot be enforced."

Faculty's view is that "Scotland cannot simply fall back on earlier measures… There will require to be fresh consideration of a modern Scottish approach to international private law in this area".

Faculty welcomes an anticipated transitional period, under which current EU family law instruments would continue until the end of 2020, and further believes that "There would be substantial benefits to retaining this regime in the longer term."

Click here to view the full response.