How will a ‘No deal’ Brexit affect my family law case?
This blog is for you if you are a UK/EU family, and it also applies to anyone from anywhere in the world who has a pension here. If you are in Northern Ireland your situation might be slightly different to England and Wales and you should speak to your lawyer. Similarly Scotland.
If you are a family lawyer seeking information, download guidance from the Law Society, “Joint Resolution and Law Society note to family lawyers in England and Wales of practical recommendations in the circumstances of no deal on EU exit”.
What should I do?
Take advice from an expert international family lawyer immediately. Why? It might be important for your case to be started and finished before Brexit because it might be difficult afterwards. And it could be your Court order might not be recognised or enforceable afterwards.
Obviously there are many countries involved and there isn’t a one size fits all answer. Your lawyer may need to speak to a lawyer in another EU country.
Should I start my divorce before Brexit?
EU rules contain a “first past the post” rule for starting divorces. After Brexit, divorces will be on the basis of “closest connection”. So if it’s important for you to divorce here and “closest connection” might not work, you better start before Brexit. But recognition of your divorce in EU member states may differ depending on the state involved. So you might need to finish before Brexit too.
What about recognition of UK divorces in EU member states?
Divorces are likely to be recognised in some but not all remaining EU countries. If recognition of your divorce is important for you, take advice immediately. For example, do you intend to live or work or buy property in a member state? Are you going through a same sex divorce?
What’s the solution? Make sure the divorce is finalised before Brexit.
How do I get divorced before Brexit?
The petition is issued in the Court and served on your ex, your ex acknowledges it, you fill in the statement in support, the decree nisi is pronounced by the Court. Six weeks and one day later you make an application for the decree absolute. This brings your marriage to an end.
In a hurry? Apply to the Court to abridge time for the whole process or to obtain the decree absolute earlier.
After the decree absolute comes the certificate …
You will need to complete the certificate before Brexit too, and you will need to file the certificate in the Court of the member state. Speak to an expert international family lawyer about certificates and how to apply for them.
What about maintenance?
This applies to maintenance; eg in divorces or under Schedule 1 Children Act. The EU Maintenance Regulation will come to an end and will be replaced on 1 April by the 2007 Hague Maintenance Convention. Speak to your lawyer about the advantages of having a needs based maintenance order made before Brexit.
Make sure your UK maintenance order has been registered (‘exequatured’) before Brexit. How long will this take? Depends which member state is involved. Speak to an expert international family lawyer about registering orders.
This applies not only to maintenance cases involving other EU member states, but also within the UK; eg in English/Scottish divorces.
If there’s the slightest chance you want the order recognised or enforced in an EU member state after Brexit, it would be best to get it made beforehand. If there isn’t agreement between you, time is short to get the final hearing listed before Brexit. Time should be allowed for registering the order too.
We don’t live in England or Wales, but one of us comes from there …
This is called “sole domicile”. Things might get better for you after Brexit if you have a needs based claim for maintenance. This applies to claims involving countries the world over, not just the EU. Talk to an expert international family lawyer about whether this applies to you, and the possibility of adjourning your case until afterwards.
The pension is in the UK but I’m not …
You want a pension sharing order of a pension in the UK but you don’t live here and you don’t come from here. Article 7 of the EU Maintenance Regulation looks after you by providing a “forum of necessity”. But this will go after Brexit. See your lawyer about an urgent application to be made before Brexit.
An EU provision called “Brussels II” allows contact orders and orders for the return of children to be enforced. But a certificate has to be obtained when the order is made. This is a similar certificate to that required in the recognition of divorces, as above.
In other children cases, such as residence, the process is different. As in the case of finances, the order must be registered (the “exequatur” process).
If it’s important to get the order before Brexit, factor in how long it will take to get the certificate, or to complete the registration, too.
What does Brexit No Deal Mean for Family Law?
Contact Family Lawyer Joanne Houston on 01962 217640 for an initial free of charge consultation on the question What does Brexit No Deal Mean for Family Law? In this 20 minute session she will review your situation and how you can achieve your objectives.
The topics covered in this blog post What does Brexit No Deal Mean for Family Law? are complex. They are provided for general guidance only. If any of the circumstances mentioned in this blog apply to you, seek expert legal advice.
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