What is the impact of Brexit on divorce and family law?
The freedom of movement afforded by membership of the European Union 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 or separate.
The European Union (Withdrawal) Act 2018 became law on 26th June 2018 and European Union (Withdrawal Agreement) Act 2020 became law on 23rd January 2020. We left the EU on 31st January 2020 and the transition period (during which EU instruments continue to apply) ends on 31st December 2020.
The effect that Brexit will have on divorce and family law has not been a priority in negotiations regarding our continuing relationship with the EU. This in part may be because some of the EU Regulations regarding family law may be replaced with existing Hague Conventions. However, the Hague Conventions are not a compete solution.
The EU-UK Trade and Co-operation Agreement, finalised on 24th December 2020, was silent on family law issues in particular whether the EU consents to the UK re-joining the 2007 Lugano Convention. The Withdrawal Agreement therefore continues to apply.
Transitional cases instituted on or before 31st December 2020
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. The rule will continue to apply to cases instituted on or before 31st December 2020. The divorce will be recognised according the Brusssels IIA rules.
Consequences of Brexit
The Government has repealed Brussels IIA, including the “Lis Pendens” rule. This means that after 31st December 2020, we revert to the pre EU “forum conveniens” rules which exist with all other non EU countries. As a result, cross jurisdictional EU divorces may 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. Only 12 of the existing EU member states are signatory to the Hague 1970 divorce recognition convention and that convention, whilst helpful, may place more barriers in the way to recognising a divorce than Brussels IIA.
Another change to our law is the jurisdictional grounds to bring a divorce. The current grounds are wider than Brussels IIA, making it easier to bring a divorce petition in England and Wales as from 1st January 2021.
The EU have not yet agreed to the UK becoming a member of the 2007 Lugano Convention. If we do rejoin the 2007 Lugano Convention, then there will be further changes to our law to include the reintroduction of ‘Lis Pendens’.
Enforcement of maintenance orders
UK and EU
The EU Maintenance Regulation (Council Regulation 4/2009) currently provides a framework for jurisdiction recognition 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 Brexit
This Regulation has been repealed though it will continue to apply to proceedings and requests initiated before 31st December 2020. Further, enforcement of orders made pursuant to proceedings initiated on or before 31st December 2020 may be brought under this Regulation at any time in the future.
The jurisdictional grounds to bring a maintenance claim (pursuant, say, to divorce, or for a child following their parents’ separation) has changed. For proceedings initiated after 31st December 2020, in some cases, it will be easier to bring a claim. However, it is important to consider how a successful claim may be enforced as it may be more problematic.
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). It may apply to the establishment, recognition and enforcement of UK/EU maintenance claims after 31st December 2020, unless or until the EU and UK agree something else.
Where a couple has decided in advance where a dispute about maintenance is to be decided (perhaps in a nuptial agreement), in some circumstances that may still be enforceable if the chosen court is in England and Wales. However, enforcement of any order made in a EU member state may be problematic.
UK and the rest of the world
The UK was originally a signatory to the 2007 Hague Convention on Maintenance by virtue of its membership of the EU. Since 31st December 2020. the UK became a signatory in its own right. 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 the 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 Brexit
The Government has repealed the regulation. Cases instituted on or before 31st December 2020, according to SI 2019 No. 519, shall proceed under EU rules. For new cases initiated on or after 1st January 2021, 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 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 9th January 2021, but further changes are expected so please contact us for more up to date information.