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Brexit and family law – mind the gap…

There it is, the “B word”, which seems to permeate/dominate every aspect of the national conversation right now. One of the lesser known areas affected by Brexit and the prospect of Brexit is family law.

At the moment, the UK incorporates several elements of EU law in matters such as jurisdiction to deal with divorce proceedings and issues relating to children, the recognition and enforcement of maintenance orders made in the various member states and rules for dealing with child abduction and wrongful retention abroad. All directly applicable EU law will automatically become part of UK law in the short to medium term because of the European Union (Withdrawal) Act 2018. This is designed to avoid a cliff-edge scenario and enables this and future parliaments to keep, scrap or amend laws that came from the EU in an orderly fashion. That’s the idea anyway. Our domestic family law will not change overnight but there may be some significant changes if a legal dispute involves both the UK courts and those of a country in the EU27.

The government has recently produced a guidance paper on the implications for civil law (including family matters) in the event of a so-called “no deal” Brexit. Fortunately there are a number of international conventions already in place that regulate such matters as between the UK and participating non-EU foreign countries, including those on maintenance and child abduction. These will fill the void left by Brexit neatly.

One slightly interesting aside in the paper is the fact that the UK is planning to rejoin the 2007 Hague Maintenance Convention and that this would be in force “by 1 April 2019”. This allows certain financial orders on divorce made in one country to be recognised and enforced in another. We need to rejoin because the UK currently participates in the Convention as a member state of the EU, rather than in its own right. However, from 11pm on “exit day”, 29 March 2019, this would no longer be the case. This leaves a little over 48 hours in which the UK is neither a member of the EU nor the Hague Maintenance Convention and the government has flagged this up, commenting that “parties would need to consider the implications for any new maintenance applications made during the gap”. There is no way of knowing what will actually happen at or around the moment of transition but it may be worth taking some specialist advice on applications for a financial order made in the immediate days after Brexit, especially if a couple has connections in other countries. I suspect we may have to come back to this nearer the time.

It seems that even if the UK can secure a deal with the EU, rather than simply leaving and falling back onto WTO terms for trade, there is unlikely to be time for much detailed work to revamp international family law for a post-Brexit world so it seems that this “no deal” scenario could be the roadmap for family law, even if there is a deal.

I note that the government paper proposes that the rules on divorce jurisdiction (i.e. whether a country’s courts can deal with a couple’s divorce when they have meaningful connections with more than one state), which derive from EU law would be repealed, but then re-enacted for England, Wales and Northern Ireland (the Scottish Government is considering how to order things in its own courts). This would be covered by the European Union (Withdrawal) Act 2018 in the short term.

However, there would be a big difference. As things stand, if there is a “jurisdiction race” between two EU states, whichever country’s courts begin to deal validly with the divorce proceedings first will prevail. Unless a Brexit deal provides otherwise, this is not going to continue. Instead, being “first in time” with your divorce petition – though still significant – will not be the be all and end all and the courts will look at which country is best placed to deal with the process as happens now with jurisdiction arguments involving our courts and those of non-EU countries. This is something we are used to dealing with but there is potential for these so-called forum conveniens arguments to arise more often if the simple “first in time” rule is abandoned in cases involving the remaining EU27.

So whether you are sad, glad, or indifferent about the death of Chequers, or believe there’s life in it yet, the implications of Brexit for separating international families are significant. There are tried and tested international conventions to fall back on in some areas but in others – especially divorce jurisdiction – there aren’t and there are bound to be some interesting cases in the immediate aftermath of Brexit. And let’s not forget the period between 29 March and 1 April…

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