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‘No deal’ Brexit papers: Handling family law cases that involve EU countries

Government explains how the rules for family law cases would change if UK leaves the EU with ‘no deal’

Amongst the papers recently published by the government setting out the impact on the UK if it leaves the EU with 'no deal' is guidance relating to the handling of civil legal cases that involve EU countries.

The paper states that before 29 March 2019, the UK applies EU rules to determine:

The paper notes that, in family law cooperation, the key EU regulations are Brussels IIa (which covers jurisdictional rules in matrimonial and parental responsibility matters, the recognition and enforcement of related judgments and supplementary rules on child abduction) and the Maintenance Regulation (which covers jurisdictional rules for maintenance decisions and the recognition and enforcement of related judgments).

The UK is a contracting state in its own right to a number of Hague Conventions on family law, which cover many of the same areas as the Brussels IIa and Maintenance Regulations. Where this is the case, the government states that it would repeal the existing EU rules and switch to the relevant Hague Conventions. The relevant rules covered by the Hague Conventions are:

The UK would continue to use the wide recognition rules (implemented by provisions in the Family Law Act 1986) of the Hague Convention on divorce recognition in the UK to recognise overseas divorces.

In child abduction cases, the UK's participation in the 1980 Hague Convention means that most of the measures it currently operates with EU countries would not change. The UK would however repeal the child abduction override provisions contained within Brussels IIa. These rules (which, in certain circumstances, allow an order from a court of an EU Member State to override an order made by another court not to return a child) are based on reciprocity and would no longer operate effectively if the UK leaves the EU with 'no deal'.

The UK would take the necessary steps to formally re-join the 2007 Hague Maintenance Convention (in which the UK currently participates because of its EU membership). It is anticipated that it would come into force by 1 April 2019. Parties would need to consider the implications for any new maintenance applications made during the gap in coverage between 29 March and 1 April 2019.

While there are some differences between the EU and Hague rules in these areas, the Hague Conventions provide an effective alternative to the EU rules. The guidance suggests that families and individuals might wish to take legal advice as to how these changes might relate to their circumstances.

In some areas of family cooperation there are no relevant Hague Conventions to fall back on. In most of these cases, the UK government would repeal the EU rules and proceed as follows.

Currently divorce jurisdiction in UK is primarily based on the Brussels IIa rules for all cases. An additional basis for jurisdiction, the sole domicile of either party to the marriage, is only available as a basis of jurisdiction if no other EU court has jurisdiction.

In England, Wales and Northern Ireland the UK government would seek to repeal the Brussels IIa rules. The different bases for divorce jurisdiction set out in Article 3 of Brussels IIa (save for joint application which is not applicable) would be replicated in English, Welsh and Northern Irish domestic law so that these bases apply for England, Wales and Northern Ireland for all cases. The additional basis of sole domicile of either party, would be available for all cases. The Scottish Government is considering the best approach for Scotland in the area of divorce jurisdiction.

The EU 'lis pendens' rules which require courts to halt divorce proceedings if an EU court has already begun to consider the case, would be repealed for all parts of the UK as they would not be reciprocated by the EU courts. Instead the courts in each UK jurisdiction would decide which is the most appropriate court to hear a case, as they currently do for cases outside the scope of Brussels IIa.

These changes in divorce jurisdiction and recognition provisions would be replicated for same sex marriages and civil partners in all applicable parts of the UK. The UK would also retain domestic rules that allow for the UK to provide a divorce or dissolution jurisdiction of last resort for cases where the couple formed their relationship under the law here and other states do not recognise their same sex marriage or civil partnership.

For decisions in relation to the jurisdiction for maintenance cases, the UK government would intend broadly to adopt the position prior to the introduction of the Maintenance Regulation and other EU rules. The jurisdiction grounds of this would vary depending on the type of maintenance sought and in which part of the UK the case is brought.

All parts of the UK would unilaterally recognise incoming Civil Protection Measures from EU countries, to ensure that vulnerable individuals would continue to be protected.

The impact of these changes on individual families would vary dependent on their circumstances and, if appropriate, they might wish to seek legal advice on what steps to take.

The government would also propose to repeal the EU Service Regulation and the Taking of Evidence Regulation, which both rely on reciprocity to operate. However, it would apply the equivalent Hague Conventions in this area, to which the vast majority of EU countries are party. Finally, the UK government would seek to repeal the legislation implementing the Mediation Directive and the Legal Aid Directive.

The government states that it will seek to provide legal certainty for businesses, families and individuals who are involved in ongoing cases on exit day. Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, the government cannot guarantee that EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. Individuals with cases in progress on 29 March are encouraged to seek legal advice on how this may affect them.

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