How will Brexit Impact Family Law? BLM answers

In the run up to the festive period, BLM's Private Wealth practice is sharing a series of blogs demystifying elements of the legal process impacting individuals and families seeking legal remedies.

In this the third of our series, #12DaysOfChristmas #12DaysOfFamilyLaw on the cusp of the UK General Election, we take a look at the impact of Brexit on family law. With just a few days to go before the General Election, Brexit continues to loom over us like the ghost of Christmas past.  With the 31 January 2020 Brexit extension granted by the EU Council now coming into sharp focus, no industry is left untouched by the 'Brexit effect'. In this blog we look at the impact of Brexit on the court system and family law.

Pre-Brexit

Let’s take a step back. In April 2019, the Government announced the Divorce, Dissolution and Separation Bill (“DDS Bill”). This Bill paves the way for couples to divorce one another on a “no fault” basis. Currently, the law does not allow couples to divorce in this way and, instead, couples must rely on one of the five facts; adultery, separation (2 years or 5 years), desertion or unreasonable behaviour.

Boris Johnson’s proroguing of Parliament in September 2019 halted the DDS Bill’s progression and there were fears that the Bill would have to start the process all over again following the resumption of Parliament post-prorogation. However, after the Supreme Court’s ruling on 24 September 2019 that the Prime Minister had acted unlawfully and subsequently that Parliament had not been suspended, the DDS Bill is now back on the table.

Post-Brexit

So, what will change if Brexit ever occurs?

Cases that have already commenced will likely operate under the same rules that are currently in place, however this has not been confirmed.

The Hague Convention, which deals with the abduction of children to foreign countries, will still apply whether we are part of the EU or not. Any cases regarding the removal of children outside of the EU – such as to Australia or the United States – will continue to be handled as they are currently.

The exception is the Convention on International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations. This Convention covers cross-border recovery of child support and other forms of family maintenance. The government has indicated that it will ratify this Convention, but whether it applies from the date of Brexit remains to be seen. Should the Convention not be ratified, then the mechanism by which maintenance orders can be enforced throughout the EU could be closed off to the UK.

Brussels IIa is the mechanism that controls children matters, such as recovering abducted children or parental responsibility issues. Brussels IIa does away with the need in non-EU countries to have an order reflecting what was decided in the UK court (Mirror orders). At the moment, the courts in the EU states recognise and enforce judgments on parental responsibility and matrimonial matters made in the UK. When the UK leaves the EU, this automatic recognition will cease to operate. We’ll continue to monitor this to see if this is addressed in the negotiations to leave the EU.

Cross-jurisdictional divorce matters will also be affected. Currently, to decide in which country a case is heard, the courts have consideration for where the parties are ‘habitually resident’; that is, where the parties normally live. This may be simple enough if a couple live in the UK with no foreign property, however for an individual who has moved to the UK from, say, Spain or Italy and who has assets in that country, the picture is less clear.

With a “no-deal” Brexit, these jurisdictional issues are likely to become more prevalent; deciding in which country to actually hear a divorce case will potentially involve protracted arguments from both sides.

The effect of Brexit will be profound. Family law proceedings will be no exception and the impact of Brexit will be felt for years and decades to come.

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

 

Who to contact

Grainne
Fahy

Partner , London

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