Few will have missed that the Brexit white paper published 12 July 2018. But what does it mean for family law?
The European Union (Withdrawal) Act became law on 26 June. This means that although the EU will no longer legislate for the UK, we retain all the helpful EU regulations which apply to family law. But there’s a problem.
On 29 March 2019 we leave the Court of Justice of the European Union (the ECJ) and we will no longer be bound by ECJ decisions. So even though we have all the EU rules for family law, these will gradually move out of sync as the ECJ will make law we do not recognise.
This could affect key areas such as the recognition and enforcement of family law judgments. See my earlier post Brexit, Family Law & Divorce – March 2018 Update
What Does Family Law Need From Brexit?
We need our rules to stay in line with the remaining EU countries in vital areas of family law. These rules relate to:
- The country in which divorces, matrimonial financial cases, and children cases must start. Otherwise cases can be started in two different countries at the same time. At the moment, for example, cases about children start in the country where they live.
- The recognition and enforcement of UK orders in remaining EU countries and vice versa.
- The Hague Convention in relation to child abduction cases. EU rules impose the following rules:
- A stricter timetable
- The children’s home country must make the final decision
- The Court will hear evidence from the child.
The Brexit White Paper And Family Law
The white paper proposes we sign up to the Lugano Convention. But because the Convention is old and out of date, the white paper also proposes we reach a deal with the EU to bring it up to date.
What Is The Lugano Convention?
The Lugano Convention originated in 1988 as an agreement between the EU and the European Free Trade Association (EFTA). Its current incarnation dates to 2007 and its signatories are:
- The EU
All the members must agree to new states joining.
What Does The Lugano Convention Do?
It ensures members apply the same rules and pay regard to how each other’s Courts interpret these rules. But even the white paper acknowledges some of the Lugano Convention’s provisions have been “overtaken” and are “limited in scope”.
This is because under the Convention there is no guarantee case law on regulation will be aligned between the signatories. All it requires is for the signatories to “pay due account” to each other’s case law (including the EU’s ECJ). So we could still fall out of sync.
It’s possible of course for the EU to revise the Lugano Convention to make sure it does its best for international families but of course all the signatories will need to agree.
Brexit White Paper And Family Law – What Is Needed
Specific proposals for making the Lugano Convention fit for purpose are required. But with the Government dealing with trouble in the ranks, negotiations with Brussels, and balancing all of this with trying to make new trade deals, it’s anybody’s guess if and when this might happen.
What Is The Brexit Timetable?
The EU target date for agreeing Brexit terms is 30 September. It’s probably quite important the Government sticks to this timetable as it will need to start post-Brexit trade talks in the autumn prior to making new trade deals before we leave the EU on 29 March 2019. Unless of course there is an agreement between the UK and the EU to extend the period for negotiations.
Does The White Paper Recognise The Difficulties International Families Face?
Yes, to a certain extent.
“Cross-border families benefit from clear rules to resolve disputes in sensitive matters quickly and efficiently.”
(Paragraph 1.7.7 sub paragraph 145).
But Please Remember …
If you are keen to divorce in a particular country for financial reasons you should seek legal advice without delay
Brexit, Family Law And Divorce
Contact Joanne Houston on 01962 217640 for free advice on Brexit, Family Law and Divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.
JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.
image Servizio fotografico by Paolo Monti on Wikimedia