What is the impact of Brexit on divorce and family law?
The European Union (Withdrawal) Act became law on 26th June 2018. As things stand, we will be leaving the EU on or before 31st January 2020.
Two years ago, the House of Lords European Union Committee said it was not convinced that the government had a “coherent or workable plan to address the significant problems that will arise in the UK’s family law legal system post-Brexit, if alternative arrangements are not put in place”
There is still absolutely no clarity as to the effect this will have on divorce and family law. It is not top of the Government’s legislative agenda.
The freedom of movement afforded by membership of the EU means that around 3.8 million EU citizens live in the UK and around 1.3 million UK citizens live in the EU. Until now various European instruments have applied when such couples get divorced.
For example, where a couple who are citizens of one EU member state are living in another EU member state, the issue of which country they get divorced in is governed by EU Council Regulation 2201/2003, known as “Brussells II A” or “Brussells II bis”. Under this regulation, there is a race to court called the “Lis Pendens” rule, which means that whoever files first in time in one EU member state, “seises” that court with jurisdiction for their divorce. The law only works because of reciprocity between all EU member states.
What are the options?
The Government has produced two papers, to which, in November 2017, the Family Law Bar Association, International Academy of Matrimonial Lawyers and Resolution have responded. More recently it has produced a Technical Notice dated 13th September 2018 setting out what will happen in the event of a No-Deal Brexit. The main options seem to be
• The EU instruments are replicated in our own law, with reciprocity from the EU, which means that the effect of Brussells IIA would continue.
• The EU instruments are replicated in our own law, but with no reciprocity from the EU, which means that we would have to recognise a decision by an EU court that a divorce is to take place in their country but they would not have to recognise such a decision by us. This is opposed by family law commentators.
• A bespoke arrangement is negotiated, but it is not thought that there is enough time to do this before 29th March 2019.
• The EU instruments are repealed, including the “Lis Pendens” rule, which means that we revert to the pre EU “forum conveniens” rules which exist with all other non EU countries. This last option appears to be the most likely option in the event of a No-Deal Brexit.
In a No-Deal Brexit, cross jurisdictional EU divorces are likely to involve lengthy and costly disputes over jurisdiction as to which EU country the divorce should take place in or duplicated proceedings and potentially irreconcilable decisions. .
In the event of a No-Deal Brexit, the Government proposes that cases that have already been started will continue under the exiting rules, but there is no guarantee that EU member state courts will follow the same principle, nor that they will recognise any judgments stemming from these cases.
Enforcement of maintenance orders
The EU Maintenance Regulation (Council Regulation 4/2009) currently provides a framework for jurisdiction and enforcement of maintenance awards between EU member States. Couples may also (in some circumstances) agree in advance where any dispute about maintenance is to be decided.
However, in the event of a No-Deal Brexit, the Government proposes that this regulation would be repealed. The UK would have to ratify to the 2007 Hague Convention on Maintenance, as the UK is currently bound only through its membership of the EU.
In the event of a No-Deal Brexit, there would be no cross border powers to enforce maintenance orders between the UK and the EU, until such time as the UK had independently ratified the 2007 Hague Convention on Maintenance.
Children and child abduction
Brussels IIA also regulates the rules of jurisdiction for parental responsibility, child protection and child abduction with the EU. It has provided predictability in international children cases and, in child abduction cases, a framework for the child’s swift return, for many years. In child protection cases, Brussels IIA provides a number of mechanisms for the exercise of limited protective measures and the effective transfer of substantive jurisdiction from one Member State to another.
Again, in the event of a No-Deal Brexit, the Government proposes that the regulation would be repealed. Instead, we will simply rely on other treaties, including the 1996 Hague Convention on Parental Responsibility and Protection of Children and switch to 1980 Hague Convention on International Child Abduction. However, although similar, the Conventions do not provide identical protection to Brussels IIA, so there will be gaps in the law and parties will lose the ability to ensure that orders relating to matters of parental responsibility, either in the United Kingdom, or another EU Member State are capable of automatic recognition without the further need to apply for “Mirror Orders.”
There is also a concern that child abduction cases will not be dealt with as swiftly as currently required under Brussels IIA.
In the event of a No-Deal Brexit, the uncertainly in the law may cause EU related custody disputes and child abduction cases to be highly complex and costly legal battles.
The status of the Brexit negotiations are ever changing so please contact us for more up to date information
Articles/papers on Brexit co-authored by Lisette Dupre