Brexit, Divorce and Family Law - What if there's "No Deal"?

See February 2019 update, What Does Brexit No Deal Mean For Family Law

Brexit, divorce and family law is a vital topic for international families and lawyers in the UK, and UK families in the EU, although you wouldn’t know it from the amount of media coverage it receives. Depending on the EU deal we get family law could be turned upside down. But what happens if there is no deal?

On 13 September 2018 the Government published its plans for family law in the event of a no deal Brexit, Handling Civil Cases that involve EU Countries if there’s No Brexit Deal

This follows the Brexit white paper on 12 July which I considered in my blog Brexit White Paper and Family Law – What You Need to Know.

Who should read this blog about Brexit, divorce and family law?

International families with EU connection – were you or your ex or your children:

born in another EU country but live in the UK
born in the UK but live in another EU country?

Law practitioners and students might find it helpful, too.

What would happen if there was a no deal Brexit?

Our Government would repeal a host of EU regulations. Why? Because even if we kept these EU regulations the remaining EU countries would not consider we were covered by them.

What do these EU regulations do?

They provide rules for:

Jurisdiction, in other words, where to start Court cases
Procedures for child abduction cases under the Hague Convention
Recognition and enforcement of Court orders

Should we panic?

We currently use domestic laws in international family disputes for non EU countries. And of course the UK is a member of the Hague Convention. Together these would cover some of the holes left by the EU regulations.

The Government would take steps to patch up the remaining holes left by the repealed EU regulations. This includes joining the 2007 Hague Maintenance Convention as soon as possible after 29 March 2019. See below for more on maintenance in the event of a no deal Brexit.

But there would be controversial changes to child abduction procedures and divorce jurisdiction. See below for more on children and child abduction and divorce jurisdiction.

Enforcement of maintenance orders and child support

We would join the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (‘the Hague Maintenance Convention’) as soon as possible. This provides broadly the same rules as the EU regulations.

This would make maintenance orders enforceable, although maintenance orders made between 29 March and 1 April 2019 could pose problems.

However the Hague Maintenance Convention is not so strong on jurisdiction which means it will not be clear where claims may be started and what happens if there are Court cases going on in different countries.

Make sure you seek expert legal advice if you have any concerns.

Court cases about children and child abduction

The 1996 Hague Convention on parental responsibility and protection of children (‘the 1996 Hague Convention’) covers jurisdiction, recognition and enforcement in children cases. This means families know where to start cases, and Court orders are recognised and enforceable in other countries.

But we would lose helpful EU regulations on child abduction procedures. These 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.

These rules are significant in child abduction cases so it would be regrettable if they were lost.

See my blog about child abduction 10 Points about Child Abduction.

Also the 1996 Hague Convention lacks automatic enforcement of contact orders. This means parents will have to get their Court orders certified which of course creates delay.

Make sure you seek expert legal advice if you have any concerns.

Jurisdiction – where to start your divorce case

Jurisdiction in all our divorces, even non international families, is based on EU regulations. The Government would adopt these regulations so it is clear in England, Wales and Northern Ireland where a divorce can start.

But we would be losing the ‘first past the post’ rule for divorces.

What is the ‘first past the post’ rule and is it a good thing?

If you are in an international family there can be a choice of countries in which to start divorce proceedings. Under EU regulations a race can start if one country’s legal system benefits the wife, and the other, the husband (or the equivalent in same sex marriages or civil partnerships). This is because EU regulations say the first to start proceedings wins the race.

Some commentators say starting proceedings in a rush means the couple don’t have the opportunity to consider reconciliation or mediation or collaborative law. And Court proceedings are expensive and stressful – no one should rush into them.

But if there is a no deal Brexit there could be divorce proceedings about the same marriage going on at the same time in different countries. And there could be Court cases solely on the question of which country should hear the case. This would certainly be frustrating and expensive for international families. And it would make our busy Court system even busier, which means slower for everyone.

This rule is also known in legal circles as forum racing or ‘lis pendens’.

If it is important to you to start your divorce in a particular country, please do not delay seeking legal advice from an expert family law solicitor on Brexit, divorce and family law.

What about my ongoing international family law case?

What happens if you have a case ongoing on 29 March 2019? How would it continue? Would the eventual order be enforceable elsewhere?

The Government guidance says, “We will seek to provide legal certainty … Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, we cannot guarantee that EU Courts will follow the same principle, nor that EU Courts will accept or recognise any judgments stemming from these cases.”

So the answer is, no one knows, which is difficult if you are in this position. Please seek legal advice from an expert family law solicitor on Brexit, divorce and family law.

Same sex marriages and civil partnerships

The UK would remain the ‘forum of last resort’ for couples who enter marriages or partnerships in the UK. In other words these couples can start Court proceedings here. This is important. If another country doesn’t recognise their marriages or civil partnerships this is a bar to Court proceedings in that country.

What about the recognition of divorces?

The 1970 Hague Convention would still allow mutual recognition of divorces in the UK and the remaining EU countries.

Are we better off without the EU regulations?

In 2017 3.8 million people in the UK were citizens of another EU country. That’s about 6% of the UK population. Similarly, 6% of the UK population were born in another EU country (Full Fact). And in 2017 1.3 million people born in the UK lived in other EU countries (Full Fact)

Some commentators would welcome the repeal of EU regulations. They say family law would then be the same for all international families – EU and non EU.

But I say no, we would not be better off. Keeping the EU regulations, and keeping them synchronised across the EU, would be helpful for UK based international families with EU connections. And this of course applies to UK families living in the remaining EU countries too. But we are heading to leave the Court Of Justice Of The European Union (CJEU) so keeping EU regulations synchronised doesn’t seem likely.

There’s the option of signing the Lugano Convention as proposed in the Government’s white paper of July. But as I mention in my blog Brexit White Paper and Family Law – What You Need to Know, the Lugano Convention would need knocking into shape before it was of much use.

Hopefully the Government will reach some sort of deal which will take into account these international families. And as the Government guidance states, “A scenario in which the UK leaves the EU without agreement … remains unlikely.”