“will Brexit Change Family Law?”

After three extensions, two changes in prime minister, two general elections, and numerous protests on both sides of the schism the United Kingdom (UK) has now left the European Union (EU).

What has actually happened?

At 11.00pm Greenwich Mean Time on  31st January 2020, the UK left the EU. The UK originally joined the EU in 1973 and is the first (and so far only) full member state to withdraw. The UK’s new trajectory started on 23rd June 2016 when a larger number of people voted  to leave the EU than those who voted to remain within it.  The withdrawal process started on 29th March 2017 with the triggering by Theresa May of notice under Article 50 of the Treaty on the European Union.

The European Union (Withdrawal Agreement) Act 2020 was given Royal Assent on 23 January 2020.  The Act repeals the European Communities act 1972, enshrines the Withdrawal Agreement between the UK and the EU in domestic law, provides for an implementation period, and preserves the effect of the 1972 Act during the transition period. The transition period will last until 31 December 2020 while a new trading arrangement and future relationship with the EU is negotiated.

During this transition period the UK will remain in both the EU customs union and the single market and will continue to be bound by EU rules and legislation.  The transition period can be extended by mutual agreement reached between the UK and the EU before 1 July 2020.  The European Union (Withdrawal) Act 2018 currently prohibits the Government from extending the transition period and the Government promised in its 2019 election manifesto not to do so.

How will Brexit affect family law?

  1. Divorce and Finances

Brexit will not affect the way that the UK courts deal with the process of divorce, nor how the courts will continue to approach the division of assets, financial settlements and any issues relating to children.

Brexit will also not affect the way in which the UK courts recognise marriages that took place abroad.

Nothing is likely to change during the transition period.

However, there could  be fundamental jurisdictional changes once the transition period comes to an end.

During the transition period the UK remains subject to  the 2003 European Council Regulation known as Brussels II bis and the 2009 European Council Regulation known as the Maintenance Regulation. The first of these provides a uniform framework between the UK and EU member states for determining where divorce proceedings may be commenced, where they should continue if they are capable of being commenced in more than one jurisdiction and where arrangements relating to  children should be determined whilst the second provides a uniform framework for determining where issues relating to maintenance should be determined and how maintenance orders should be recognised and enforced.

Whilst some EU member states enjoy a limited ability to apply the law of other member states the European Council Regulations do not affect how the courts of each member state apply their own  law when considering how assets should be divided or how maintenance should be calculated once seised with jurisdiction.

This can give rise to significant differences in outcome or awards between the UK and/or EU member states.

The courts in England and Wales enjoy a discretion in deciding how best to achieve fairness which, though dependent upon the specific facts of a case, may result in significant advantage to a party than a financial outcome in an EU member state, and vice versa.

The Brussels II bis Regulation currently provides for automatic recognition of judgments between the UK and EU member states without the need for any special procedure.  

If the UK is no longer bound by the uniform framework of each of these Regulations in the future there may be significant scope for cross-jurisdictional litigation between the UK and EU member states over the issues identified above.

  • Children

Brussels II bis regulates jurisdiction on issues such as parental responsibility, child protection, child abduction, and  the welfare of and arrangements for children between the UK and EU member states.  It also regulates enforcement and recognition between the UK and EU member states of orders dealing with these issues.

The Maintenance Regulation determines where issues relating to child maintenance may be dealt with and where they should be determined if more than one jurisdiction is available.

If the UK is no longer bound by each of these Regulations there may be a return to uncertainty surrounding issues of parental responsibility for and the relocation of children in addition to scope for cross-jurisdictional litigation between the UK and EU member states over issues of child maintenance.

Neil Graham, a Partner at Grayfords, comments as follows: “The key to how Brexit will affect family law lies in what relationship the UK and the EU establish by the end of the transition period.  The greater the departure is from the uniformity of the Council Regulations the greater uncertainty there may be surrounding aspects of jurisdiction, recognition and enforcement in the areas of divorce, finances and issues affecting children.  Greater uncertainty is likely to lead to more cross-jurisdictional disputes and to add to the complexity and cost of family litigation for the international family.” 

Grayfords not only works on Family Law issues in the UK, but it we are renowned for our international family law specialisms. Therefore, if you have any issues that you feel may concern you after Brexit, feel free to contact us now and to discuss the possible options that are available for you.

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