Rachael Kelsey

Since 2005 all family lawyers have been good European lawyers, working day in, day out, with European instruments (even if they didn’t realise that that was what they were doing!). Our jurisdictional rules were changed then so that they followed the rules in Brussels IIa.

Those rules are designed primarily around the concept of habitual residence. There are fewer instances where you can use domicile as a basis to engage the Scottish courts. This piece is only looking at divorce jurisdiction, not jurisdiction for maintenance claims, which will be the subject of another piece.

That will all change if we have a ‘no deal’ Brexit. So before turning to what the new (old) rules will be, some brief context, to recap:

• Our current law comes from Brussels IIa, which is directly applicable in Scotland, but which, for ease, has been amended into our domestic law- so when you need to know if you have jurisdiction, you go to the Domicile and Matrimonial Proceedings Act 1973 or the Family Law Act 1986.

• If we end up with a ‘no deal’ Brexit, as of 11pm on 29th March 2019, we cease to be an EU Member State. The European Union (Withdrawal) Act 2018 kicks in and, to borrow the floating charge analogy, a pudding bowl comes down on our law and captures all EU law, domesticates it, and gives us a body of law that becomes known as “retained EU law”. Under the 2018 Act, Brussels IIa therefore will become retained EU law on 29th March 2019.

• The Scottish government’s intention is to change that “retained EU law” on Exit day and to revert to the pre-Brusselss IIa position (for the time being- they are carrying out a review of jurisdiction in family matters- as part of their ongoing, wide-ranging consultation on family law).

To give effect to that intention Holyrood’s Justice Committee will consider an SSI on Tuesday (5th February 2019)- The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.

The effect of the SSI is that from Exit day, if there is no deal, we will go back to the old, pre-Brussels IIa rules. So, we’re back to ‘domiciled in Scotland’ (either party) or ‘habitually resident in Scotland throughout the period of one year ending with that date’ (the Sheriff Court ‘resident in the Sheriffdom for not less than 40 days etc’ provision remains). 

There will be winners and losers from these changes and you need to be thinking about this now- people who do not have a Scottish domicile (and nor does their spouse) and who won’t be able to meet the 12 month provision, but who could happily raise now, because they are both habitually resident here, for example. In particular you need to keep a close eye on our friends south of the border, because (i) they are diverging from us and using an amended version of the Brussels IIa rules for jurisdiction (taking out the joint application indent and adding in sole domicile), and (ii) the helpful intra-UK, lis pendens provisions introduced by the Maintenance Regulations will be lost, so there will be a significant increase of intra-UK forum non conveniens litigation (this will be looked at in more detail in a subsequent piece).

There is now so little time you must factor in the possibility of ‘no deal’. My practical top tips are:

• Think about whether you will gain or lose jurisdiction options, post Brexit- and act accordingly

• Make sure you know what your client’s domicile is (and that of their spouses) in all cases- and record that (no judgement, but you should be doing that anyway)

• Have a large glass of European wine weekly from this point on (two if you were practising before Brussells IIa came into force)

• Rachael Kelsey is a director at SKO Family Law Specialists. She splits her time between Edinburgh and London and is president-elect of the European Chapter of the International Academy of Family Lawyers.