Whether the UK walks away from the European Union with an agreement or no deal in place, Brexit is sure to change the landscape of family law.
The Government has recently published how the rules for civil, commercial, insolvency and family law cases involving EU countries would change if the UK leaves the EU in the event of a no-deal scenario.
The technical notice on civil judicial co-operation relates to divorce, maintenance, Hague instruments, domestic violence and potential issues that may arise if the UK were to leave the EU with no deal in place.
The following summaries, with thanks to the Resolution Foundation, describe how the UK will handle each of these issues and events in an international setting.
It is proposed that the UK will continue to apply the same jurisdictional criteria as the current Brussels II bis regulation, as well sole domicile – which is currently only available where no other EU member state has jurisdiction. Ultimately, English Courts will only stay proceedings if there is another more appropriate forum in cases involving the rest of the world, including EU member states.
If the UK were to leave the EU with no deal in place, the Maintenance Regulation will no longer apply between England the remaining member states. This implies that the restriction on making financial orders based on sole domicile will be removed. Note, the Government has stated that jurisdictional rules which previously applied will be reinstated. Enforcing UK orders in the UK and vice versa will be done through the Hague Maintenance Convention 2007.
The 1980 Hague Convention and the 1996 Hague Convention will broadly replace Brussels II bis in respect of abduction, and jurisdiction and parental responsibility respectively.
According to the technical note, the UK will recognise domestic violence injunctions from other EU member states but not vice versa.
Issues, as set out by the Resolution Foundation
A) It is unclear whether the new rules would apply on Brexit day one or after the 31 December 2020 transitional period. The former would create a “steep” learning curve for solicitors and judges.
B) It is unclear how the new rules will apply to existing agreements, judgments and proceedings. This requires clarification from Government.
C) There are serious concerns about the recognition of UK divorces in the rest of the EU as the Hague 1970 Divorce Recognition Convention only applies to some of the EU states, which means that UK divorces will not automatically be recognised in all EU member states.
D) There is no guarantee that Scotland will adopt the same jurisdictional criteria which means we could have different rules in Scotland and the rest of the UK.
E) There may be a two day gap between enforcement under the Maintenance Regulation and enforcement under the Hague Convention 2007, says Resolution. “It is unclear whether jurisdictional clauses in respect of maintenance will be automatically respected or whether these will be one of the factors for consideration; and it is unclear whether the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 will continue to apply intra UK.”
Resolution has asked the Ministry of Justice for clarification on many of the issues highlighted in this report. For further advice, please get in touch.