Divorce and custody rulings may be in jeopardy post-Brexit, legal experts warn


LEGAL experts have warned the European system that ensures Scottish court decisions on divorces and child custody are recognised across the bloc will be at risk after Brexit.


Academics believe leaving the EU will jeopardise rules under which courts in different nations respect each others’ judgments, ensuring, for example, that “deadbeat dads” in one country pay for their children in another.

Professors Janeen Carruthers and Elizabeth Crawford of the University of Glasgow have drawn up a paper, shared widely in Scotland’s justice community, warning that such a breakdown in judicial reciprocity “would be disadvantageous to UK persons”.

The legal experts, among scores brought together to thrash out unconsidered potential consequences of Brexit, also highlight a threat to cross-bloc systems for handling parental kidnappings.

Policymakers contacted by The Herald stress this is not a niche area of law. More than seven per cent of Scottish residents were born overseas and many thousands of people living in Scotland, including native Scots, may be affected by cross-border law in matters such as marriage  divorce and issues concerning children.

Justice Secretary Michael Matheson and other Scottish justice and law enforcement officials have long warned of the potential threat of Brexit to what they see as vital cross-border law enforcement and civil and criminal justice co-operation.

Writing in today’s Herald, Mr Matheson said cross-border co-operation among courts on civil matters, such as commercial and consumer protection laws – and family matters – was also vital.

He said: “Families with links to more than one EU member state benefit from agreements to recognise the legal position or court decisions of other EU jurisdictions on issues like parental child abduction.


“This, and the fact that single market rules ensure co-operation between courts in different countries, also means EU citizens resident in Scotland are connected to their home legal systems.

“Brexit would mean parents seeking child maintenance from their ex-partner elsewhere in Europe would no longer have access to the EU maintenance regulation, which could make securing child support compliance more difficult.”

Every country in Europe – bar Denmark – currently abides by rulings of the family courts of every other, ensuring, for example, that children are not thrown in to poverty because one parent in another member state does not contribute to their wellbeing. This is done under an EU maintenance regulation.

Profs Carruthers and Crawford said Scotland could unilaterally decide to recognise and enforce the decisions of European courts on such issues.

In other words, a Scottish court could voluntarily agree to uphold a judgment on, say, child support made by a Polish court about a father who had emigrated to Scotland.


But the academics added: “While UK courts may be prepared to continue to recognise a French divorce or custody decision, UK courts could not oblige a French court to recognise and give effect to a Scottish divorce or custody decision.

“Indeed the courts and authorities of remaining EU member states would have no competence under the continuing European scheme to recognise a Scottish divorce or custody decision.”

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