On the 31st of December 2020, the transition period agreed for the United Kingdom to leave the European Union ended. This marked the dawn of a new legislative era, an era where EU law no longer applies to the UK.
The infamous tagline of ‘taking back control’ naturally meant that much of the legislation once drawn up from a Eurocentric perspective, would now be rethought and reworked to directly serve Great Britain.
So, what does this mean for family cases, and what new ground must family law solicitors navigate as the impact of Brexit on UK law becomes clearer?
Let’s Talk About Divorce
The law that determined jurisdiction in marital and parental matters for EU member states, and more importantly the UK, was the Brussels II bis Regulation. Now that the transition period is over, the existing rules of this regulation relating to pending suits have changed somewhat.
Up until the transition period ended, the regulation in question would apply to relations between EU member states and the UK. This would determine aspects such as where court proceedings would take place, which court took priority over disputes and adjudication on parental matters.
If a spouse was to file for divorce in the UK before the other filed for divorce in an EU member state, the court in that state would have to stay the proceedings, giving jurisdiction in principle to the UK court.
Now the transition is over, UK courts will return to the doctrine used in common law countries, ‘forum non conveniens’, meaning a UK court can stay proceedings if it finds the other state court in question is better equipped to settle the dispute.
It is worth noting that specifics regarding recognition of judgements will differ, depending on the state in question. 13 of the 27 EU members, like the UK, have signed the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, render judgments in one country are automatically recognised in the other. For the remaining states, national law will always be checked in line with the judgement, unless an application for automatic recognition is submitted.
Parental Authority, Child Protection and Parental Abduction
As well as the judgements in matrimonial affairs, the Brussels II bis Regulation also deals with matters of parental responsibility and abduction. In new cases regarding parental authority and child protection post Brexit, the 1996 Hague Convention on Parental Responsibility and Protection of Children will apply accordingly.
The 1996 Hague Convention aims to facilitate cooperation between signatory countries so that children can effectively be provided with protective measures and minimal procedural delays in cases with an international element.
When it comes to parental abduction, the guarantees in procedure under the Brussels II bis Regulation broaden significantly. The regulation states:
• Member states must rule on an application for return of a child within 6 weeks of submission.
• The child must be given an opportunity to be heard, if his or her age and degree of maturity allow.
• The requesting parent is guaranteed the right to be heard before the application for return can be rejected.
• A court may not refuse the return of a child under Art. 13(b) of the 1980 Hague Convention if it is established that appropriate measures have been taken to safeguard the protection of the child after return.
The key difference between the international child abduction abroad regime and the 1980 Hague Convention comes from the Brussels II bis Regulation. In short, it allows the court in the country where the child regularly lives to reassess the paperwork and any decisions regarding custody without officially refusing the judgement made by another court.
Child Maintenance Obligations
For EU member states, the judgements regarding maintenance obligations is provided by the 2008 Maintenance Regulation. In contrast, The UK signed the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which became effective following the transition period.
While both acts contain the same rules, there are some notable differences. The 2007 Hague Convention is concerned less with issues of law or jurisdiction, and more with effectiveness of foreign decisions and facilitation of the recovery of maintenance in cross-border situations.
The Maintenance Regulation applies to maintenance obligations arising from a family relationship, kinship, marriage, or affinity. The 2007 Hague Convention, however, is more complicated, allowing extensions and applications to include obligations for children under 21, between spouses and ex-spouses where applications are submitted at the same time.
How We Can Help
There’s no doubt that the impact of Brexit on UK law will continue to prove complex for some time. While this has summarised some key points to think about with regards to family law, for expert opinion on all aspects of family law, or for advice on what steps to take next, contact us today.
