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A European Commission plan to block the UK from joining an international legal co-operation agreement after Brexit will inflict serious complications on divorce settlements and child maintenance awards, lawyers have warned.
Brussels said last month the UK should not be allowed to join the 2007 Lugano Convention, an agreement that determines which countries’ courts have jurisdiction over cross-border civil and commercial disputes, and ensures that the resulting judgments can be enforced abroad.
The recommendation by the commission to prevent UK accession after Brexit was seen as an attempt to erode London’s position as a global centre for commercial dispute resolution, but lawyers said it would now bring painful and costly legal uncertainty to family break-ups.
Rachael Kelsey, president of the European chapter of the International Academy of Family Lawyers, urged the commission to reconsider its position for the sake of millions of EU and UK citizens with family relationships that straddle the English Channel.
“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,” she said.
“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,” said Kelsey.
The UK government application to join the Lugano Convention — Britain was a party to the accord as an EU member state — was backed by the three convention signatories outside the bloc.
But the commission said the request should be rebuffed since the UK had requested a distant relationship with the EU based on a basic free trade agreement.
A final decision on UK accession will be taken by EU member states in the European Council, but officials on both sides said expectations of any movement on the issue were very low, given tensions between London and Brussels over post-Brexit relations.
Josep Gálvez, a former Spanish judge and commercial arbitration expert now at London-based Del Canto Chambers, said the commission’s advice to block UK membership appeared to be designed to weaken the attraction of the British capital as a centre for dispute resolution.
“It is a way to punish the UK for leaving the EU, but also a very good opportunity for some EU jurisdictions to attract international litigation to their courts,” he added.
Without membership of the Lugano Convention, lawyers managing EU family cases on either side of the Channel will have to rely on The Hague Conventions.
Legal experts said these were less comprehensive and did not prevent parallel court cases in competing jurisdictions.
The Hague Conventions also do not allow orders, such as child maintenance payments, made in one jurisdiction to be enforced in another as easily.
Kelsey said a research paper by the International Academy of Family Lawyers that sought the opinion of expert lawyers found they unanimously agreed it was better for EU and UK citizens for Britain to be allowed to join the Lugano Convention.
William Healing, a partner at London family law firm Alexiou Fisher Philipps who has worked with the French community in England for more than two decades, said there would be “no winners on either side” if the UK was kept out of the convention.
The EU should allow the UK to join the convention immediately, he added. “It will help separated families recover maintenance, and in commercial law will make judgments readily enforceable,” he said.
Downing Street said that allowing UK accession to the Lugano Convention was a “sensible and pragmatic” solution for EU and UK citizens and would ensure that cross-border legal disputes for consumers and families can be resolved smoothly.
“We maintain that we meet the criteria for accession both because it is open to countries outside the EU, and all non-EU members already supported the UK’s membership,” it added.
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