Brexit

What is the impact of Brexit on divorce and family law? 

The European Union (Withdrawal) Act became law on 26th June 2018 and we are now due to leave the EU on 31st January 2020.

The full effect that Brexit will have on divorce and family law, remains unclear. It is not top of the Government’s legislative agenda and may not be a priority in future negotiations regarding our continuing relationship with the EU.

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.

Divorce

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 “Brussels II A” or “Brussels 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. 

Consequences of a No-Deal Brexit 

The Government has decided to repeal Brussels IIA, including the “Lis Pendens” rule, which means that we will revert to the pre EU “forum conveniens” rules which exist with all other non EU countries. As a result, 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 as well as duplicated proceedings and potentially irreconcilable decisions. 

Ongoing cases

In the event of a No-Deal Brexit, the Government proposes that cases that have already been started will continue under the existing 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

UK and EU 

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. 

Consequences of a No-Deal Brexit

The Government is proposing that this Regulation shall be repealed. 

The UK ratified the 2007 Hague Convention on Maintenance on 28 December 2018. This Convention has many similarities to the EU Maintenance Regulation (but also some important differences) and shall apply to UK/EU cases after Brexit unless or until the EU and UK agree something else. In respect of existing cases, according to SI 2019 No. 519, “where an application for recognition or registration has been made to the relevant UK Central Authority or a court before Exit day…any subsequent applications for enforcement after Exit day will proceed under the EU rules, regardless of how long after Exit day such applications are received.

New matters will need to be issued under the 2007 Hague Convention or other, older Conventions such as the 1973 Hague Convention and 1956 New York (UN) Convention on Recovery of Maintenance (depending on the EU country). 

Where a couple has decided in advance where a dispute about maintenance is to be decided, in some circumstances that may still be enforceable. 

UK and the rest of the world

Presently the UK is a signatory to the 2007 Hague Convention on Maintenance by virtue of its membership of the EU. 

Consequences of a No-Deal Brexit 

Upon leaving the EU without a deal, the UK will become a signatory in its own right (almost immediately). As a result payments falling due shall effectively continue to be enforced as usual, as if the UK had remained, without interruption, a State bound by Convention. 

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. 

Consequences of a No-Deal Brexit

In the event of a No-Deal Brexit, the Government proposes to repeal the regulation. Existing cases, according to SI 2019 No. 519, shall, however proceed under EU rules. For new cases 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. 

The uncertainly in the law may cause EU related custody disputes and child abduction cases to be highly complex and costly.

 

Correct as at 30th October 2019, but the status of the Brexit negotiations are ever changing so please contact us for more up to date information.