As a result of the United Kingdom's exit from the European Union, the domestic law of England and Wales will be applied to family law cases started on or after 1 January 2021. European law has ceased to apply, though there are still may other international instruments to which the UK is a party, and to which we are bound. There is however one piece of the jigsaw puzzle which remains missing for family lawyers, which is the Lugano Convention.
The Lugano Convention is a convention between the 27 EU countries, Norway, Switzerland and Iceland. It is not solely, or even primarily, a family law convention and instead crosses a range of legal practice areas. The UK's membership of this convention ceased at the end of the transition period as we were members by virtue of our membership of the EU. An application to re-join the convention in our own right was made in April 2020 but this requires the consent of all other contracting parties and, to date, the EU27 have not provided this.
So what is the position for family law clients now and going forward?
Why is the Lugano Convention important?
Whether or not the UK is able to join the Lugano Convention is key for families because it contains provisions on jurisdiction, recognition and enforcement for maintenance cases. 'Maintenance' in the context of this convention refers to all 'needs' based awards, so is not just the payment of spousal or child maintenance but can also be a capital payment which is required to meet needs, for example, needed for the purchase of a home. It can therefore impact upon many separated families with connections to EU countries.
What is the current position following the end of the transition period?
The UK is now not a member of the Lugano Convention. This means that we are dependent on domestic law and other existing international instruments to recognise and enforce maintenance cases that were commenced on or after 1 January 2021.
There are two key potential issues caused by the uncertainty about the Lugano Convention:
- Without Lugano, there is no specific jurisdiction for maintenance claims – we are dependent on a cross-section of domestic law depending on what type of financial claims are being made. In some cases it may be easier to bring a claim; in others claims may be more complex.
- Until our membership of Lugano is confirmed, recognition and enforcement of 'maintenance' orders made in the UK will have to be done through our other international conventions, notably the 2007 Hague Convention. The EU is a signatory to this so there is a convention which still applies between us and the EU27. However there are important differences between the two conventions, including a greater risk under Hague 2007 that recognition and enforcement could be opposed or that you could end up with competing proceedings and orders in two different countries.
What difference would membership of the Lugano Convention make?
Aside from the points above, the main difference that the Lugano Convention would make in family law is in respect of the lis pendens provisions – the so-called 'first to issue'. This essentially means that the first person to issue their application secures that country for the proceedings, and proceedings in any other country have to be stayed (i.e. put on hold). Therefore, sometimes time is of the essence, and it is very important to take early advice where there are connections to several countries.
The alternative position, and the one which is the law currently in place in the UK following the end of the transition period, is the 'forum [non] conveniens' position. England already applied this with non-Lugano countries. Under this, it is the most 'convenient' or 'appropriate' jurisdiction that hears the case. However it remains unclear whether other EU countries will continue to apply the 'first to issue' provision to UK cases and much may depend on national law given that the UK is no longer an EU member state.
The other key difference that the Lugano Convention would make is the sole domicile conundrum. Under the Lugano Convention, if a divorce petition is based on the domicile in England of just one of the parties, claims are limited to sharing claims (i.e. divide the fruits of the marital partnership) and the courts are prohibited from making provision for needs (or 'maintenance'). Without Lugano, sole domicile is a primary ground of jurisdiction for divorce in England and Wales and the full range of maintenance orders is possible. However it is not yet clear whether these orders will be recognised and enforced through the 2007 Hague Convention. If we do later join the Lugano Convention, it would mean a further and very significant change as the convention would again prevent 'maintenance' claims for sole domicile petitions, so the ability to do this at all could be with us for just a matter of months.
While this is all very complex, it identifies the need to take advice at an early stage, particularly as the position is ever changing as our laws adapt to the Brexit fallout.