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Brexit, divorce and family law

UK flag and EU flag on a pole opposite each other

The recent uproar over the status of the children of Windrush immigrants has highlighted how changes in Government policies can have a major impact of unsuspecting families. Brexit will inevitably involve new legislation to replace existing EU agreements on cross-border marriages, divorce and child abduction, for example. Director Anne Leiper looks at the possible implications of Brexit on international family law.

One of the most frustrating aspect of Brexit is the uncertainty. We still do not know how much of EU family law will become enshrined in UK law, or if some will be removed from the statute books. Historically, the freedom of movement afforded by membership of the EU has been governed by EU-wide regulations. This could all change post-Brexit.

A way forward?

A joint paper issued last October by the Family Law Bar Association (FLBA), International Academy of Family Lawyers (IAFL) and Resolution, considers the options. It also addresses the issue of the transition period “To ensure that families are not left in legal limbo as a result of Brexit.”

In the eyes of the report’s authors, the UK has three options in terms of the current family law provisions.

  1. We can adopt the EU provisions wholesale into our own UK legislation and continue as we do now with reciprocal arrangement.
  2. We could adopt the provisions as above BUT not keep reciprocal arrangements.
  3. We could negotiate a new agreement with the EU.

At this stage, we simply don’t know which option the Government will go for, or whether we have a hard exit with no agreement at all.

 

Option 1 offers several benefits including maintaining ‘harmonised rules’ and cooperation. The UK would still remain subject to the CJEU (Court of Justice of the European Union), but the report considers this a good thing as it provides “A central arbiter of disputes about interpretation of the provisions… so that there is consistency across the EU."

Option 2 is almost a contradiction in terms as according to the report, “Many of the EU family law provisions require reciprocity.” In other words, we’d be bound by EU regulations, but the EU countries would not be obliged to reciprocate.

Option 3 would, in the words of the report, “Take a very long time to consider, negotiate and put into place alternative arrangements and that will not be achievable by 2019.”

 

So, option 1 is the report’s recommended course of action both in the short and long term.

Family law in the UK and the EU

Family law is not the same across the EU; each country has their own laws and legal principles governing issues such as the reasons you can divorce someone, maintenance support, child arrangements and protection from domestic violence and emotional abuse.

In addition, various UK instruments impact on UK law, especially Council Regulation No. 2201/2003, known to us family lawyers as ‘Brussels II Revised’ or ‘Brussels IIa’. This covers jurisdiction over divorce and parental responsibility cases, both in private and public law.

Now the technical part (do bear with us).

In the UK, we ’apply the provisions’ of the EU regulations, which means we work to them but don’t need them written into UK law. Brexit could change that too. If we want to continue applying EU provisions, we could need to write them into our own laws, and quickly. Otherwise, Brexit changes could affect a huge number of families, as according to the European Commission:

“Cross-border disputes on family matters have increased in the EU due to the rising number of international families, which is now estimated at 16 million.”

 

Divorce and Brexit

According to the European Commission, there are 140,000 cases of international divorce in the EU. If you marry a non-UK EU national, and subsequently decide to get divorced, which national jurisdiction you get divorced in can make a considerable difference to the outcome.

Under current EU instruments, the court where divorce proceeding are first issued has jurisdiction. There is also a mechanism to ensure that, even if divorce petitions are issued in two different countries, the first petition served defines the jurisdiction. After Brexit, this may not be the case.

As international divorce lawyers, we are well aware of the complications of dual jurisdiction cases and the care needed to negotiate the interests under different laws to our own. At present, our membership of the EU ensures that where the case is heard is in the child’s best interests and that in maintenance case, the weaker party’s interests are protected, for example.

 

Residency, leave to remain and the family

Until the status of EU nationals living in the UK is properly established, there will inevitably be uncertainty over the status both of parents and children where one spouse or partner is not a UK national. This in turn might affect where children can live after a divorce, and with which parent.

 

Removal of children

In the case of where a parent removes a child from the UK, or keeps them here against the wishes of the other parent, EU law states that the case is urgent and should be dealt with rapidly (within 6 weeks). Again, this may not be the case post-Brexit.

 

What next?

It’s very easy to succumb to the ‘panic headlines’ of the media over Brexit, but even if these are exaggerated, Brexit will affect EU cross-border and international divorces. How much remains to be seen.

In the meantime, we will continue to monitor how Brexit may affect family law, and continue to keep abreast of all new developments, to deliver the best service to the people who really matter in all this - you, your family and your children.

For more information, see our International law page, or book a free 30-minute consultation to discuss your situation. We offer in person meetings in the UK, and via Skype and telephone for overseas clients.