Brexit and family law: an update article banner image

The United Kingdom’s decision to leave the European Union has widespread implications for all areas of life, including family law.

Negotiations to leave the EU will take a couple of years to conclude as our government try to unravel the complex practical and legal implications of our exit. One area which has received little press attention so far is the implications of leaving the EU on family law. In particular, the UK government’s approach to Brexit and family law will have an affect on families where members hail from or reside in countries outside of the UK. This could therefore have a profound impact on issues such as divorce and what happens to children after a break-up where there is an international element at play.

Implications of Brexit

In 2017 the House of Commons Justice Committee published the report ‘Implications of Brexit for the Justice System’, which looked into the impact of Brexit for both civil (including family) and criminal law. With regard to family law specifically the report looked at the EU Regulations which have a bearing on UK law, including within matters of divorce, children arrangements, child maintenance and child abduction.

Currently, UK law is governed by a ream of EU legalisation, including but not limited to, EU Regulation 2201/2003, more commonly known as ‘Brussells IIa’, which governs a large proportion of family law, including divorce, legal separation, foster care, jurisdiction and parental responsibility (including contact and residence arrangements). Regulation 4/2009 or the ‘EU Maintenance Regulation’ is also relevant, and as its name suggests, it looks at issues of maintenance.

Importance of cross-border co-operation

Although the Justice Committee report found that these two regulations in particular are not without fault, for instance Brussels IIa appears to discourage mediation and jurisdiction rules lend themselves to a race to issue divorce proceedings in the jurisdiction which is most favourable to the respective party, the report ultimately concluded that it is important that there is comprehensive cross-border co-operation and that the current framework is followed as closely as possible.

This will ensure that a system for mutual recognition between countries is created, alongside an enforcement of judgments. This means that if a judge in an EU country makes an order, the UK should recognise it in this country. This is particularly important in matters of child abduction and the non-payment of maintenance.

UK Government response

The UK government have now responded to this report, noting that a lot of the rules and regulations within Brussels IIa are echoed in other non-EU specific legislation, such as the 1980 Hague Convention, which is adhered to by the UK in any event. Where these additional pieces of legislation do not correspond to EU law, the UK government will strive to seek an agreement with the EU to allow for close and comprehensive cross-border cooperation in family matters and a system to reflect the current framework.

In addition, the UK will seek to continue participating in the 2007 Hague Convention, which relates to maintenance decisions, and will also be looking to participate in the 2007 Lugano Convention which regulates maintenance decisions between the EU and Norway, Iceland and Switzerland.

Ultimately, whilst there is still much to be finalised, family lawyers are watching the situation with interest because of the impact Brexit may have on families in the future.