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. <\/p>\n\n\n\n
The European Union (Withdrawal) Act 2018 became law on 26 June 2018 and European Union (Withdrawal Agreement) Act 2020 became law on 23 January 2020. We left the EU on 31 January 2020 and the transition period (during which EU instruments continued to apply) ended on 31 December 2020.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
The EU-UK Trade and Co-operation Agreement, finalised on 24 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. <\/p>\n\n\n\n
Transitional cases instituted on or before 31 December 2020<\/p>\n\n\n\n
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 \u201cBrussels II A\u201d or \u201cBrussels II bis\u201d. Under this regulation, there is a race to court called the \u201cLis Pendens\u201d rule, which means that whoever files first in time in one EU member state, \u201cseises\u201d 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 31 December 2020. The divorce will be recognised according the Brusssels IIA rules. <\/p>\n\n\n\n
The Government has repealed Brussels IIA, including the \u201cLis Pendens\u201d rule. This means that after 31 December 2020, we revert to the pre EU \u201cforum conveniens\u201d 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.<\/p>\n\n\n\n
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 application in England and Wales as from 1 January 2021.<\/p>\n\n\n\n
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’. <\/p>\n\n\n\n
UK and EU <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
This Regulation has been repealed though it will continue to apply to proceedings and requests initiated before 31 December 2020. Further, enforcement of orders made pursuant to proceedings initiated on or before 31 December 2020 may be brought under this Regulation at any time in the future. <\/p>\n\n\n\n
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 31 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. <\/p>\n\n\n\n
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 31 December 2020, unless or until the EU and UK agree something else. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
UK and the rest of the world<\/p>\n\n\n\n
The UK was originally a signatory to the 2007 Hague Convention on Maintenance by virtue of its membership of the EU. Since 31 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. <\/p>\n\n\n\n
The 1980 Hague Convention on the Civil Aspects of International Child Abduction continues to be applicable when a child has been wrongfully removed from or retained outside the jurisdiction of their habitual residence. Following Brexit the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children is the multilateral treaty that the UK applies with the EU in respect of cross border children matters such as custody and contact provision.
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The Government has repealed the Brussels IIA regulation. Cases instituted on or before 31 December 2020,\u00a0according to SI 2019 No. 519, shall\u00a0proceed under EU rules. For new cases initiated on or after 1 January 2021, we will simply rely on other treaties, including the 1996 Hague Convention on Parental Responsibility and Protection of Children and switch to the 1980 Hague Convention on International Child Abduction (as set out above).\u00a0<\/p>\n\n\n\n
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 \u201cMirror Orders.\u201d <\/p>\n\n\n\n
There is also a concern that child abduction cases will not be dealt with as swiftly as required under Brussels IIA. <\/p>\n\n\n\n
The uncertainty in the law may cause EU related custody disputes and child abduction cases to be highly complex and costly.<\/p>\n\n\n\n
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