Impact of Brexit on Family Law
For 46 years, the United Kingdom enjoyed a symbiotic relationship with Europe promoting the free movement of goods, people and fair competition laws but all that changed on 12th March 2019, which marked a significant change in the country’s membership to the European Union. The Brexit referendum certainly divided the nation and the politics behind the campaigns were questionable.
The direct impact of leaving the EU may not necessarily be felt immediately however, as Practitioners, we do need to be aware of the impact Brexit will have on divorce, child arrangements, financial agreements, domestic violence and abduction. This article only means to summarise some of these changes as the specific arrangements for each topic warrant further analysis.
Prior to Brexit, if parties were to obtain a divorce in the UK, the decree absolute would be automatically recognised by the EU. This was because the jurisdictional issues following a divorce were previously governed under Brussels IIa Regulations, which to some extent allowed a party to choose which country they wished to initiate proceedings based on their habitual residence. Some parties wish to choose the matrimonial law specific to that country that is more advantageous to their case.
If divorce is initiated after the 31st December 2020, then this rule no longer applies, and a party would need to initiate in the country they have the closest connection with. The UK courts will consider factors such as nationality, residence, domicile, which country the assets are held, proposed alternative courts, where the children attend school, language and cultue to ascertain “close connection.”
Divorce proceedings that were initiated before 31st December 2020 will be recognised by the EU however, if proceedings were still ongoing and not concluded until after this date then it is advisable for a party to apply for recognition of that divorce in the European Union. Currently, 12 out of the 27 member states signed the 1970 Hague Convention on the recognition of divorces and legal separations meaning that these countries will still recognise the divorce after the transition period. These twelve countries are Cypress, Czechia, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia and Sweden. Should you wish your divorce to be recognised in one of the 15 member states that is not part of the recognition process, you should obtain legal advice.
Financial orders relating to child maintenance and/or maintenance to meet the needs of the party will still be recognised if they were concluded before 31st December 2020. However, after this date, if you have connections to an EU country, it is crucial that any financial orders are recognised in the Member State otherwise there is a risk that those orders remain unenforceable. Consideration will be given to your country of domicile. This is the country that you have permanent links with; for example, if you have a permanent address, family or children that attend school in that country. It is advisable to seek legal advice in this regard to ensure you apply for the correct jurisdiction.
These were previously decided under Brussels IIa Regulation, which allowed for recognition and enforcement of orders relating to parental responsibility. This is particularly important because enforcement is recognised across the EU and serves as additional Protection to the 1980 Hague Child Abduction Convention. Instead, the 1996 Hague Convention will apply, and it is therefore important to take legal advice in the relevant country to ensure that any orders in relation to the children are enforceable.
Prior to the transition period, the UK had always intended on ensuring that it continued to recognise EU Domestic Protection Orders primarily and obviously to protect victims of domestic abuse. As a result, the EU law has been incorporated into national law and will continue to do so.
Conversely, the EU has not reciprocated so any orders made in the UK in respect of domestic violence will not be automatically recognised in the EU. An additional application will need to be made in the EU to recognise any UK court orders in order for that order to be enforced in the member state. This is an unfortunate position given the time sensitivity and the enormous burden this will place on any victim to ensure their rights are protected in the EU. It is always possible that additional provisions could be introduced into legislation but that is outside the scope of this article.
Time will tell as to how these changes will severely impact on Family matters however, it is important that should you have a case that is likely to require the involvement of any member state of the EU, you should obtain expert legal advice in this regard. Whatever your views on Brexit, it is here to stay and the best we can do is to ensure that you and your rights are protected.
Should you require legal assistance with a Family Law matter take advantage of our complimentary video/telephone consultation calls with one of our Family Law legal experts by calling 0800 999 4437 or emailing firstname.lastname@example.org today.