No-deal Brexit and family law: the implications
Director Anne Leiper looks at the implications of a no-deal Brexit on family law issues between the UK and EU member states.
As the saying goes, we are indeed living in interesting times. (5)
In the light of the current debate raging over Brexit legislation, the Law Society’s advice on the implications of a no-deal Brexit on family law bring into focus the multi-layered effects of such a decision.
First published in November last year, in time for the first deadline of 31 March 2019, the Law Society guidance lays out the changes that will happen if:
- The UK fails to sign a withdrawal agreement with the EU
and
- The UK fails to sign an agreement laying out the future relationship between the EU and the UK
It’s normally a two-part process that involves parliament agreeing to the overall shape of the bill, and then passing the complete bill after detailed scrutiny. However, with no agreement to the shape of the deal from parliament, let alone the detail, the Prime Minister has leapt ahead and published the complete Withdrawal Agreement Bill. This contains, as the BBC’s Laura Kuenssberg says; “Pages and pages of new laws that need to be passed to make our departure from the EU happen.” (1)
No deal Brexit and EU family law
If the UK leaves the EU with no agreement/deal, it will involve the UK leaving various EU legal structures with immediate effect. There will be no transition period. A no-deal Brexit will effectively cancel various regulations including:
- The Brussels II bis Regulation
- Maintenance Regulation
- The Lugano Convention
- 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations
Current UK and EU/EAA reciprocal arrangements
The UK has adopted much of the EU legislation in a reciprocal arrangement with other member states. If the UK leaves with no deal, these will cease and national law will apply to family law cases. This will affect:
- The Brussels II bis Regulation
This Regulation “Aims to help international families to resolve disputes, involving more than one EU state, over divorce and the custody of children” (3).
It depends on mutual recognition of family law instruments between the UK and EU/EEA states, which means it lays down rules to:
- “determine which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one EU state
- simplify the recognition and enforcement of judgements (e.g. a court order) from one EU member state to another
- provide a procedure for situations in which a parent abducts a child and takes them to another EU state.” (3)
In practice, this means any EU court automatically recognises a judgement made in another EU court. In a no-deal Brexit scenario, this Regulation will cease to apply.
- Maintenance Regulation
The Maintenance Regulation ensures that maintenance claims in cross-border cases is paid. It also ensures protection orders are observed to keep safe victims of domestic violence. So, if you have a protection order issued in the UK, it can be invoked in other EU states on presentation of a certificate. This arrangement will cease in the event of a no-deal Brexit.
- The Lugano Convention
This Convention “governs the enforcement of foreign judgements in litigation between Swiss and British parties. The UK has never ratified the Lugano Convention, and was only bound by it due to being a member of the EU.” (2)
The Law Society suggests the UK would need to officially join. To do so, the UK must be invited to become a member and the current members ratify that application. Lexology see this slightly differently, suggesting that: “It is currently envisaged that the UK will retain the provisions of the Lugano Convention as part of national law.”
- The Hague Convention
The Hague Convention, which covers areas of law including international child abduction will continue to apply. This is because the UK has ratified the Convention’s elements, with one exception, the 2007 Convention on International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations.
However, UK/EU divorce cases could be adversely affected as:
“The cross-border recognition of judgements in relation to divorce will be governed by national law, unless the states involved are parties to the Hague Convention on divorce. This may result in conflicts of jurisdiction and parallel proceedings in different countries.” (2)
This is because not every EU member state has ratified all parts of The Hague Convention, if at all.
- Pre-existing treaties
Any treaties and conventions that predate the UK’s EU membership can apply in a no-deal Brexit scenario. However, unearthing what these might be will involve considerable cooperation between lawyers and solicitors in the two countries concerned.
- Ongoing cases
Ongoing cases could be affected if the rules change mid-case, and as the Law Society says; “The risk of parallel cases taken in multiple jurisdictions is a distinct possibility.” (2)
Moving forward
EU member states are allowed to negotiate bilateral treaty agreements with a third country (4). As the Law Society explains;
“This means that once the UK has left the EU, the UK could form a bilateral treaty agreement with an EU member state in relation to family law matters, as long as the member state in question obtains authorisation from the Commission.”
How long such agreements would take to make, and whether every EU state would want to make one, is another issue.
Family law and a no-deal Brexit: our summary
- A no-deal Brexit will involve sudden and immediate changes to the legal structure of family law in the UK. Replacing/renegotiating EU-based legal structures and agreements will take time and require the passing of numerous pieces of legislation. Families with current and impending EU cross-jurisdiction cases face uncertainty and confusion as the rules governing their case could change midstream.
- A Brexit deal would offer a transition period when legislators and government alike can start to make the changes required to protect existing rights for families involved in cross-border cases. However, to assume this will be completed within the transition period, or indeed for some time afterwards, would be naïve. There is so much EU-based legislation to change across the entire system, not just in family law. MPs will need to scrutinise a considerable volume of legislation and understand its EU predecessor in order to protect the interests of UK citizens.
- The effect of a no-deal Brexit on the UK pound v. Euro exchange rate is uncertain. Care will be needed to ensure that any payments made as a result of EU cases are paid in the most advantageous currency.
- LGFL Ltd will work tirelessly to keep abreast of all changes relating to family law and the EU, but it is an ever-changing situation. Consequently, cross-border cases involving elements of matrimonial and family law may be more complex and take longer to deal with than previously.
Call us to discuss your situation
If you’re considering legal action in a family law matter involving a member state of the EU, call us. We can talk through your options, identify areas that could be problematic, and work towards achieving your goals via the most effective route.
REFERENCES:
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https://www.bbc.co.uk/news/uk-politics-50133448 published 21/10/2019
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https://www.lawsociety.org.uk/support-services/advice/articles/no-deal-brexit-family-law/
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https://www.lawsociety.org.uk/support-services/documents/no-deal-brexit-family-law/
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Council Regulation No 664/2009 of 7 July 2009, Articles 1 and 4.
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The attribution of “May you live in interesting times” as an ancient Chinese curse can’t be proved, as this detailed article explains! https://quoteinvestigator.com/2015/12/18/live/
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https://www.lexology.com/library/detail.aspx?g=3d1f57a5-ef63-49fc-b881-c77537818a63