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The end of the transition period is fast approaching and with no Brexit deal in place yet, it means that EU law will no longer apply to the UK. Also known as IP Completion day, the 31st December is the end of the implementation period for the Withdrawal Agreement but how will Brexit impact Family Law?
Issues Surrounding Divorce and Jurisdiction
Jurisdiction is determined by Brussels lla, which is a vital piece of European legislation and so, this will play a role in identifying which country will deal with certain cases.
This regulation will enable individuals who have connections with various countries located within the EU to issue divorce proceedings in the country of their choice. The rules dictate that the country in which proceedings are initially issued must have control of the case. This can often cause a rush between involved parties to issue proceedings in the country that is likely to give them the outcome they are hoping for.
However, after Brexit, there are some options available that could replace the Brussels Regulations. A bilateral agreement could be created that would replicate the current legislation. If this occurs, then it would have no impact on the way in which jurisdictional issues are resolved.
In contrast to this, after Brexit it could be likely that all European countries will be treated in the same way as non-European countries. A decision on jurisdiction would have to be made based on the connections that a family has to their chosen country. However, there are worries around the additional pressure this would place on parties who are required to litigate over which country will deal with their divorce proceedings.
Regulations Relating to Maintenance
Under EU law, The Hague Convention 2007 was implemented as a way of delivering a system across the union as a way of handling the enforcement of Maintenance Orders which includes Child Maintenance Orders as well as Spousal Maintenance Orders. The regime was introduced to deliver uniformity, but problems have been encountered. As a result, the problems seen with the European provisions have meant that some practitioners have considered that the use of Reciprocal Enforcements of Maintenance Orders might be preferable once the UK leaves the European Union.
International Children Cases
The 1980 Hague Convention will still provide a system that handles the return of children. Once the UK leaves the European Union, the provisions will remain unchanged.
Where children are involved, current EU law stipulates the way in which jurisdictional issues are handled. The rule generally dictates that the country in which the child lives will handle all matters relating to the child. As a result, the legislation of that particular country will be applicable.
In accordance with Brussels lla, judgements that are made in one member state in relation to a child will be both enforceable and recognised throughout all other member states. A certificate is produced by the court on judgement and that informs all other members states that the issues were handled appropriately, and all safeguards and procedural requirements were followed.
After Brexit, it is still unknown how recognition and enforceability will be managed. This could mean that negotiations will need to take place in order to implement agreements that mirror the arrangements currently in place. If this is not possible then it could be likely that all parties with an international connection will be required to obtain a mirror order in the foreign jurisdiction to mirror the Order of the Court in the UK. However, this will increase costs and proceedings will take longer.
Where Does This Leave Us?
As it currently stands, all current regulations remain in place but once the UK leaves the EU, it's possible that some issues are addressed by incorporating EU law into our domestic legislation. Despite this, it won't be a satisfactory resolution on its own as it will not deal with the requirements of reciprocity and cross border recognition of Family Law Orders.
What is certain is that the transitional arrangements set out in the Withdrawal Agreement will apply regardless of whether any trade deal is reached. In summary, provided proceedings in respect of divorce, children and maintenance are instituted before 11pm on 31 December 2020, Brussels IIa and the Maintenance Regulation will continue to apply to the orders subsequently made in those proceedings whenever needed for the purpose of recognition or enforcement, perhaps years or even decades later. Therefore, it is important to review cases and see whether proceedings need to be issued soon for a more favorable position for clients.
We can only hope that the government will consider the issues that have an impact on those involved in family law proceedings as they attempt to navigate their way through Brexit talks.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of December 2020.