Basic Principles of Family Law in England
In contrast to most European countries which have civil codes, English law is a combination of statute and precedent. While continental jurisdictions have property regimes that allow spouses and same-sex civil partners to work out who will receive how much on a divorce or dissolution of the civil partnership, English law has no property regime in this sense. Instead courts have a discretion on financial questions and decide what is a fair order to make.
For these reasons it is vital to consult an English family law expert in family cases which have or could have an English element.
European Family Law
Even in the area of family law, the EU has created new law. So for example in the case of a divorce the Brussels II Regulation determines which courts have jurisdiction. It also provides that wherever the divorce is first lodged at court will determine where it is heard. If that court has jurisdiction, any courts with later applications have to reject them. Similar rules provide for the jurisdiction of the courts in matters of parental disputes.
This may not make much of a difference between some countries because the courts of both countries will apply the same law, depending on the nationality or habitual residence of the couple. This is not the case in England where English courts will always apply English law for the divorce or civil partnership dissolution and all financial aspects resulting from it, irrespective of the parties’ nationality, residence or domicile or the place of marriage or civil partnership registration. Sometimes people who are both nationals of another country think that the law of their home country applies. That may be the case if they divorce there, but not if they divorce in England. Even an agreement in a pre-nuptial or pre-registration agreement about the law to be applied is disregarded by the courts in England and Wales. By contrast courts in other countries might apply English law.
This means that the outcome of a divorce and financial proceedings in England can be very different from those in another country.
Therefore it is vital in all cases with an international element that EU law is considered. Parties and their lawyers should contact lawyers in the relevant countries to obtain advice on the law and on the conflict of law rules of the various countries.. .
5 May 2016 by Andrea Woelke