How Brexit Could Impact Family Law

In March 2019, the UK will formally leave the European Union, which it has belonged to for over forty years.  In that four decades, there has hardly been a sliver of legislation that has not been touched by EU law.

Family law in England and Wales will be affected by Brexit, in areas such as international divorce and children’s matters, especially those regarding child arrangements, child abduction, and child protection cases.  However, it is imperative to note that unlike commercial or employment law, EU rules and regulations mainly apply to procedural aspects of family law in the UK.  Each country in the Union has always set its own laws regarding families, for example, the grounds for divorce, rates of child maintenance, whether spousal maintenance should be awarded, domestic violence protection, and when a local authority can remove a child from its parents.

There are two EU family law regulations which can impact on UK-based families: Brussels II bis and the EU Maintenance Regulations.

Brussels II bis 

Brussels II bis, or Brussels II Regulation (EC) No 2201/2003 as it is formally known, provides jurisdictional rules on which countries can hear a case on divorce and which countries judiciary will take precedence should there be a dispute regarding where divorce proceedings should be heard.  It also provides a quick system for returning a child who is the victim of parental abduction to the EU state in which they habitually reside.  The left-behind parent can still rely on the Hague Convention; however, it provides more scope for the abducting parent to defend their actions than does Brussels ii bis.  In addition, Brussels II bis provides that the Court in the child’s habitual residence has the final say on whether the child should be returned.  This is not the case in Hague Convention cases.

EU Maintenance Regulations

The EU Maintenance Regulations deal with maintenance obligations between, but not restricted to, husband and wife, and also child maintenance.  Primarily, it provides a simple method for ensuring a maintenance order made in one Member State can be enforced in another.  So, if a mother is ordered by an English court to pay a certain amount of child maintenance, this obligation can be enforced should she move to France.

There are other international treaties which can be used to enforce a maintenance order post-Brexit; however, the reality is they are more complex than the EU Maintenance Regulations, so may result in a more costly and time-consuming process.

There are other EU instruments that greatly benefit families in England and Wales.  They include:

  • The Mutual Recognition of Protection Orders which enforces across the EU orders made to protect a victim and their children from domestic abuse
  • The European Enforcement Order provides a mechanism by which uncontested claims, including out of court settlements can be enforced
  • The European Judicial Network improves cooperation between judges and legal authorities and can speed up the process of settling cases

The principles of the EU provisions

The EU provisions which affect family law are designed to:

  • Provide legal consistency between Member States and allow citizens to trust the system is predictable and will protect the Rule of Law
  • Develop trust between Member States
  • Allow for Court judgments to be quickly enforced, especially in cases involving children and domestic abuse
  • Encourage cooperation between the authorities in individual States

The big question is – will the spirit and ethos of what the EU has created and continues to develop when it comes to family law be continued after April 2019?  Resolution, a group of 6,500 family law Solicitors, has identified that the Government’s Enforcement and dispute resolution: a future partnership (August 2017) paper contains commitments to maximise certainty for people and ensure they can enforce their rights.  In addition, it states the UK will continue to respect the autonomy of UK and EU law and honour its international obligations.

At present, there are around 140,000 international divorce cases in the EU every year and 1,800 cases of child abduction.  To ensure families involved in such proceedings do not find themselves cast into a nightmare of lengthy, expensive jurisdictional disputes, it is crucial the UK government opts for a seamless transition of the family-related EU regulations and directives into UK law.  However, in written evidence to the House of Commons Justice Committee, Professor Nigel Lowe stated:

“It will not be good enough to adopt the strategy of enacting these [EU family law] instruments domestically since their efficacy depends on reciprocity and orders that are not enforceable are not worth the paper they are written on”.

According to Resolution, this would mean:

“We could replicate the EU instruments in our own domestic law and maintain the existing reciprocal arrangements between the UK and the other EU member states”.

In practice this may mean maintaining the status quo, which although not perfect, is a “tried and tested” system.  This is seen as the best option for family law post-Brexit, and frankly, what families faced with international divorce, child abduction, or domestic violence threats deserve.

Rosie Bracher is a specialist family law solicitors based in Barnstaple.  We have the knowledge and expertise to advise you on all matters involving divorce, children, and family law.  Please contact our office on 01271 314 904 and arrange to speak to one of our team.