How will Brexit affect family law?

Rebecca Patience from Harrison Drury’s Home and Family team looks at some of the possible scenarios for how divorce and family matters will be dealt with when Britain formally exits the EU.

Divorce and jurisdiction issues

Brussels IIa is a key piece of European Legislation which sets out the rules for determining jurisdiction, i.e. deciding which country will deal with any particular case.

The effect of this regulation gives individuals, who have links with numerous countries within the EU, the option to issue divorce proceedings in the country of their preference. There is an EU wide rule that the country in which proceedings are first issued must have conduct of the case. This rule can sometimes create a race between the parties to issue proceedings in the country that would provide the most favourable outcome.

Following Brexit, there are a few options as to what will replace the Brussels Regulations. The first is for a bilateral agreement to be drawn up to mirror the current legislation. If matters are dealt with in this way, there would be no practical change to the way jurisdictional issues are resolved.

Alternatively, it could be the case that following Brexit all European countries are treated just the same as Non-European countries. This would require a decision on jurisdiction to be made on the basis of how closely connected a family is to this country. There is concern that this could lead to unnecessary strain being added to the parties who have to litigate over which country is to deal with their divorce proceedings.

Our previous blog looks in more detail at how Brexit may impact on your divorce.

Maintenance regulations

There is a regime under EU Law, The Hague Convention 2007, which was introduced with the intention to provide a system throughout the union to facilitate the enforcement of Maintenance Orders, both Child Maintenance Orders and Spousal Maintenance Orders. It was hoped that the introduction of this regime would create uniformity, however, there have been many problems with the interpretation of these provisions.

Given the problems encountered with the European provisions, it’s considered by some practitioners that it may be preferable following the UK’s exit from the European Union to use Reciprocal Enforcements of Maintenance Orders as we currently do with Non-European countries.

Some experts have suggested that it may be beneficial to try and develop one arrangement that will be utilised with many countries worldwide, rather than having many different regimes with many different countries.

International children cases

In terms of abduction, the 1980 Hague Convention will still provide a mechanism for the return of children. These provisions will go unchanged following departure from the European Union.

Current EU law dictates how jurisdictional issues are to be dealt with in matters involving children.  The general rule is that the country in which the child is habitually resident will deal with matters concerning that child. The legislation of the country in which the child resides will therefore apply.

Under Brussels IIa all judgments made in one member state relating to a child are recognised and enforceable in all other member states. On judgment a certificate is produced by the court that confirms to all other member states that the matter was dealt with in an appropriate manner and that all procedural requirements and safeguards were dealt with accordingly and given the necessary respect.

Following Brexit, it’s not clear how the issue of enforceability and recognition will be dealt with. As above it may be that negotiations commence to secure agreements that reflect the current arrangements. If this cannot be achieved it will be the case that parties involved in children disputes with an international element will be required to go to the additional expense of obtaining a mirror order in the foreign jurisdiction to reflect the Order of the Court in the UK. This will of course add further expenses for the parties and will prolong proceedings.

Where do we go from here?

Until we leave the EU the current regulations will remain in force and the status quo will be maintained.

On leaving the EU some of the potential problems identified above may be addressed by incorporating EU law into our domestic legislation, however, this on its own will not be a satisfactory resolution as it will not address the requirement for reciprocity and cross border recognition of Family Law Orders.

Consideration must be given to provisions for transitionary arrangements to ensure legal certainty for families during the period of change. It is hoped government will give appropriate consideration to the issues impacting those engaged in family law proceedings as they negotiate and legislate in advance of Brexit.

Rebecca Patience is a member of Harrison Drury’s experienced team of family and divorce solicitors in Preston, Kendal, Lancaster, Garstang and Clitheroe. If you would like to speak confidentially to Rebecca about any family law matter contact her on 01772 258321.