The effect of Brexit on family law

As the European Union (Withdrawal) Bill continues through Parliament, the debate is evolving with divergent views as to how a family law Brexit can best be achieved. Therefore, the impact of Brexit upon family law remains unclear for the time being.
There are two principal EU regulations which impact on our family law clients. These are:

• EU Council regulation 2201/2003 (also known as ‘Brussels II Bis’) which regulates rules of jurisdiction for divorce and parental responsibility regarding children; and
• The EU Maintenance Regulation (Council Regulation 4/2009) which provides rules for jurisdiction of maintenance claims and enforcement of maintenance agreements and court decisions between the UK and the EU.

Currently, there are clear EU rules regulating where divorce proceedings can be commenced as well as which court will take precedence in the event of two competing divorce actions among EU states. Under the Lis Pendens Rule, where two or more member states have jurisdiction to hear the divorce, the proceedings within the member state in which the divorce action was first raised will take priority. If post-Brexit divorce jurisdiction is no longer governed by Brussels II Bis, the Forum Conveniens Rule would apply whereby the country which has the closest connection with the marriage will have jurisdiction. Deciding which is the most natural and appropriate forum for a divorce has given rise to costly litigation in many cases in the past and is a far from ideal fall-back position. As against this, there is the argument that the certainty provided by the Brussels II Bis Rule has led to a ‘race to court’ in European cases which is not conducive to the amicable resolution of financial and children arrangements.

The EU Maintenance Regulation provides a clear framework for jurisdiction and enforcement of maintenance awards among EU member states. It also allows a couple to agree in advance where a maintenance dispute will be heard in future, thereby providing certainty and autonomy. Such provisions are often contained in prenuptial agreements whereby the couple may elect the country in which any future application for maintenance should be determined. If, as anticipated, the EU Maintenance Regulation ceases to apply post-Brexit, the future position regarding enforcement of maintenance within the EU remains unclear. While the 2007 Hague Convention goes some way to bridge the gap this would require independent accession to the Convention, as the UK is currently bound only through its membership of the EU and its provisions with regard to enforcement are more limited.

The Government has given some guidance at least in terms of how it expects the interim arrangements to operate. It is expected that existing decisions concerning children, divorce and maintenance will be recognised and enforced as will any decisions made after the withdrawal date if proceedings were already underway. Although the mist is clearing in terms of what the transitional arrangements will involve there is still enormous uncertainty as to what the consequences of Brexit will be for family law. It is hoped that as the date for the UK’s departure from the EU draws ever nearer clarification will be forthcoming as soon as possible.