Following Brexit, the UK lost its membership of the Lugano Convention. Although the UK applied to re-join the Convention as an independent state in April 2020, the European Commission recently recommended that member states should deny their application. If their recommendation is followed, the UK’s non-admission to the Lugano Convention could have a wide-ranging and damaging effect on family law.
If you are unaware of the 2007 Lugano Convention, it is an international treaty between the EU and the countries that make up the European Free Trade Association. This list includes Iceland, Norway, and Switzerland.
The aim of the Convention is to clarify which country’s court has jurisdiction in a cross-border dispute and enable these courts to make judgments that can be enforced across borders. Membership of the Lugano Convention would allow the UK to join a set framework that enables and governs a single system of jurisdiction and enforcement across borders.
However, the European Commission feels that as the UK voted to leave the EU, it is no longer eligible to participate in a system that his built on “a high level of mutual trust”. Predictably the EU’s stance has heightened what is an already strained relationship between the UK and the EU.
Given the increasingly cross-border nature of many high end family law cases, membership of the Lugano Convention would benefit family law in 3 main ways:
The Lugano Convention provides one absolute clarity in terms of determining the jurisdiction in a case, including applications for maintenance. Without this clarity, lawyers would be forced to find an answer using rules that vary from country to country (including, incredibly, between England & Wales and Scotland) depending on the type of court application involved.
If proceedings are raised in two different countries, there is no way to determine which country takes precedence other than it should be “the most appropriate” court. The Lugano Convention provides a clear set of rules to establish precedence.
Although there are some exceptions, The Lugano Convention states that orders made in one member country must be recognised and enforced in the other countries signed up to the convention. This includes orders relating to divorce, maintenance, and childcare.
Given these benefits will not be available if the UK’s membership is denied, it is easy to see why a growing number of British lawyers have been extremely vocal, warning the EU’s attempts to derail the UK’s application to re-join the Lugano Convention could cause severe problems for families all over Europe.
Moreover, it is felt the repercussions could ultimately affect the entire UK legal system in what some legal commentators have suggested is nothing more than an attempt to weaken London’s position as the predominant international centre for dispute resolution.
This week Rachael Kelsey, president of the European chapter of the International Academy of Family Lawyers voiced her concerns in The Financial Times:
“A year ago, we could say with total confidence and clarity ‘this court has jurisdiction, this is how long a case will take, and this is the cost ballpark’ — but now that is no longer the case. We need to put politics aside and recognise that there are millions of EU and UK citizens who are going to be prejudiced if we don’t end up with a better set of harmonised rules.”
A final decision is still to be reached but we will continue to monitor developments until we know the outcome and have a better idea of what will be required to manage cross-border divorce cases in the future.