31 December 2020 brought the end of the UK’s transition period for leaving the European Union and with it, a long-negotiated 1246-page Brexit agreement. But aside from the headline-grabbing issues, Brexit also has implications for those looking for family law advice in Scotland. Particularly affected are cross-border cases where families have connections with countries outside Scotland and parties therefore need to obtain legal advice about their situation.

Pre-Brexit, the rules for determining which court could hear a dispute and how court orders were recognised and enforced was contained in one tidy EU Regulation known as “Brussels II a”. Post-Brexit, Scotland has not yet created a clear and concise statutory basis for the new rules. To find the “new” rules for 2021 onward, we need to look to the “old” rules and what was in place before the European Regulations took over.

Below, we consider the two main issues in cross-border cases and how they have changed since the turn of the year.

Jurisdiction

Jurisdiction must be established in any court action before the court can go on to hear the substantive issue in dispute. Jurisdiction in Scotland can now be established on one of two grounds:

  1. Habitual Residence – A party can raise a court action in Scotland if they have been habitually resident in Scotland throughout the period of one year ending on the date when the court action starts. Habitual residence is a factual test based on things like where a party is living, how integrated they are into the community and whether they have become settled in their place of residence.
  1. Domicile – A party can raise a court action in Scotland if they are domiciled in Scotland on the day the court action starts. Domicile is a more complex and nuanced legal concept than habitual residence. In general terms, domicile can be designated by either origin or choice. Domicile of origin is generally based on the domicile of a person’s parents. Domicile of choice is an intention to live permanently in a country, with no intention of returning to any previous country of residence. The intention to permanently reside somewhere can be difficult to prove and establish and the court will take various factors into account when considering domicile as a ground for jurisdiction.

Prior to Brexit, if two competing court actions were raised in different countries, the second action would have to be placed on hold to allow the first to proceed. This created a “race to raise” – with parties sometimes rushing to raise a court action in the most advantageous country to their position. There is no longer a mandatory requirement to do that.  Now, if court actions are raised in two different jurisdictions, the principle that will decide whether the Scottish court should continue to hear the proceedings is forum non conveniens – meaning whichever court is most convenient and fair. In divorce or dissolution cases, generally jurisdiction will be most easily established in the country that the couple last lived together.

If proceedings have been raised against you in a different country and you think it best that the matter is heard in Scotland, it is essential that you seek legal advice to protect your position.

Recognition & Enforcement

Pre-Brexit, orders made in any European Union member state were automatically recognised in Scotland and vice versa. That is no longer the case. Recognition and enforcement in Scotland are now governed by the Hague Convention 1970, which was implemented by the Family Law Act 1986. This allows a mechanism for registration and enforcement of orders from other jurisdictions.

What is perhaps more complex is the recognition and enforcement of Scottish orders overseas. If a country is also a signatory to the Hague Convention 1970, then a Scottish order will be capable of recognition and enforcement in that country. However, many EU member states are not a signatory to the convention, most notably Spain, France, Germany and the Republic of Ireland. For countries such as these, we will require to look at the domestic law to seek recognition and enforcement of a Scottish order. There is therefore a risk that some Scottish orders will not recognised elsewhere without meeting specific criteria and overcoming cumbersome procedure.

Given we have now entered an entirely new international regime, it is likely that the Scottish courts will hear arguments in relation to jurisdiction, recognition and enforcement in the months to come. Johnson Legal will be keeping up to date with the evolving legal position and are well placed to provide expert advice in relation to cross-border cases at this time of change.  Call us now on 0131 622 8477

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