01 July 2020
It’s The Final Countdown (Again): Brexit and Family by Emily Foy
The United Kingdom formally left the European Union on 31 January 2020.
The UK is now is a transition period which is due to last until 31 December 2020, to allow negotiations to take place and agreements to be reached in relation to new laws and rules in many areas.
Any extension to the transition period should have been requested by the UK by 30 June 2020; no such request was made. We are therefore just six months from the “final final” D-day, but remain none the wiser as to what this will mean for Family Law. It is a time of great uncertainty for family lawyers and their clients given that Brexit will directly impact many families living internationally with different homes, dynamics and structures.
As matters stand, until the transition period ends, the status quo will remain. The UK has automatically ceased to be a member of the European Parliament and European Commission and, therefore, whilst the UK will no longer have any voting rights, it will continue to follow EU Rules in accordance with the Withdrawal Agreement. This will remain the case until 31 December 2020 unless the UK Parliament passes special legislation to the contrary.
Whilst, undoubtedly, the impact and power of EU legislation was in the minds of some committed to achieving Brexit back in 2016, the positive effect on EU families in this increasingly international age should also not be overlooked. UK/EU law has provided clarity to families in relation to (a) the reciprocal recognition of divorce in member states; (b) the freedom of movement of international families and their children, allowing smoother childcare arrangements; (c) the recognition and enforcement of maintenance orders; (d) clarity regarding jurisdiction for divorce; (e) consistency of approach in relation to child abduction proceedings and many other associated benefits.
Once the implementation period comes to as end, so will all these benefits. There is currently no clarity in relation to what will happen after 31 December of this year. Whilst the UK has legislation in place to enact the majority of EU rules into domestic legislation, there is currently no agreement with the EU that they will do likewise. Without this reciprocity the landscape of family law, particularly in relation to cross-jurisdictional disputes, will become far less navigable.
As we approach the 31 December deadline, we may get some clarity on the way in which rights and remedies may change. However, the longer term Family Law implications of the UK’s departure from the EU remain wholly unclear and for both practitioners and parties (or prospective parties) and the following potential issues should be considered:-
- The registration, recognition and enforcement of English Court Orders abroad and what needs to be done to ensure that they can be relied on, including whether registration is required before the end of the implementation period;
- Where a party is able to petition for divorce, the jurisdictional ground for doing so and whether it is more beneficial to delay a petition until after the end of the transition period (for example to allow reliance on sole domicile of the Petitioner) or to proceed now based on the current legal structure and certainty as to jurisdiction under Brussels II bis, especially if the choice of jurisdiction may be removed after exit day;
- The effect of Brexit on Prenuptial agreements that are entered into before the end of the transition period;
- Whether a same sex marriage or civil partnership will be recognised by the remaining member states after exit day, something which is already an issue in some EU states and may be further exacerbated after leaving the EU;
- The ability of a receiving party to seek financial support from their spouse after exit day, once the Maintenance Regulations no longer apply; and
- EU regulations providing protection to victims of domestic violence through the reciprocal recognition of protection orders will cease.
Parties, potential parties and practitioners alike need to consider the impact of Brexit when considering where and when to issue proceedings, recognition of orders and applications for divorce or maintenance. The clock is running.
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