How will Brexit affect divorce and family law? The EU (Withdrawal) Act became law on 26 June 2018 and we left the European Union on 31 January 2020. The full effect of Brexit is still unclear (and this note is being prepared in December, days before the ending of the transition period!). The outcome will depend on whether a ‘deal’ can be reached.
The government has decided to repeal Brussels IIA which deals with the relationship between member states. What are the implications for family law?
Divorce laws differ from country to country. England is thought be relatively “pro-wife” in terms of financial settlements (with London being known as the divorce capital of the world).
The ‘Lis Pendens’ rule under EU Council Regulation 2201/2003 (aka ‘Brussells IIA’ or ‘Brussells II bis’) means that whoever starts divorce proceedings first in time in one EU member state seises that court with jurisdiction for their divorce. The divorce proceedings will remain there, and other countries cannot get involved. This leads to jurisdiction races for some couples, where there is a race to start proceedings first in the country which is likely to give the most favourable outcome. The law only works because of reciprocal agreement between the member states.
Consequences of no-deal Brexit
In the absence of any replacement legislation, we will revert to pre EU ‘forum conveniens’ rules which exist with all other non-EU counties. This would result in doubt as to whether UK divorces would be recognised in the EU; the 1970 Hague Convention only applies to some member states.
This is likely to involve lengthy disputes over jurisdiction as well as duplicated divorce proceedings.
The government has indicated that it will legislate to assume reciprocity from the EU meaning the effect of Brussells II would continue. The UK would have to recognise a decision by an EU court that a divorce is to take place in an EU member state but there would be no obligation on EU member states to recognise a decision made by a UK Court.
The government proposes that ongoing cases will continue under existing rules but there is no guarantee EU member states will follow or recognise judgments stemming from those cases.
Enforcement of maintenance orders
The EU Maintenance Regulation provides a framework for jurisdiction and enforcement of maintenance awards between EU member states. If there is a no-deal Brexit, the legislation will be repealed.
The UK ratified the 2007 Hague Convention on Maintenance on 28 December 2018. The convention has some similarities to the Maintenance Regulation and will apply to EU/EU cases after Brexit unless or until the EU and UK agree something else.
New matters need to be issued under 2007 Hague Convention. If a couple has decided where a dispute about maintenance is to be decided, it may still be enforceable.
Children and child abduction
Brussels IIa serves three functions in children matters:
- It lays down jurisdictional rules prescribing which member state is competent to make decisions about a child;
- It provides a regime for mutual recognition and enforcement, so court decisions concerning children can be effective in any member state;
- It lays down a system of cross border cooperation and communication between central authorities.
Existing cases will proceed under EU rules. New cases, will rely on other treaties inc. 1996 Hague Convention on PR and switch to 1980 Hague Convention for Child Abduction. The conventions are similar but do not provide equivalent protection.
At the moment, judgments in matters concerning children made in one member state, which have been served and are enforceable there, can be recognised and enforced in other member states as well. This is relatively easily achieved by obtaining a certificate from the originating court which essentially confirms to other member states that procedural safeguards were adhered to and respected when the order was made. There will be gaps and the parties will lose this protection, resulting in the need to apply for Mirror Orders.
There is also a concern that Child Abduction cases will not be dealt with swiftly as required under Brussells II (6 weeks).
Transitional arrangements are in place for the period of the withdrawal agreement so it is business as usual for now. the arrangements may be extended but it is unclear. The hope is that some reciprocal arrangements will be put in place before Brussells II is revoked.
If there is a Brexit deal, it is likely that many of the existing rules will be replicated at some point.
If not, there may be the risk of competing litigation in different countries; but there will be an end to the system which almost encourages jurisdiction races, and all the harm that comes with that.
Written by Lucy Steele