Advice Centre

Mar

The implications of Brexit on family law cases in the UK

The implications of Brexit on family law cases in the UK

While a ‘no-deal’ Brexit is the outcome that no one favours, it appears a ‘no-deal’ scenario is growing increasingly likely, especially since the Prime Minister appears to have never ruled out a ‘no deal’ outcome. Thus, Brexit will undoubtedly have an impact upon individuals with multinational and multi-jurisdictional lifestyles, business, family and property interests.

Indeed, with around 3.8 million EU citizens living in the UK, family law and in particular divorces will be effected by the latter. Presently, the issue of which country divorce should take place for couples who are citizens of one EU member state, but live and work in another, is governed by EU Council Regulation 2201/2003.

Current position

Under this regulation, the ‘Lis Pendens’ rule applies, which means that the person who first files for divorce in one EU member state, enables that particular member state court to have jurisdiction for their divorce. This only works because of the mutuality between all EU member states.

In a ‘no-deal’ Brexit, this principle will no longer apply between the UK and the remaining EU member states. Most commentators state that the probable ‘no-deal’ option would involve repealing the EU instruments, including the ‘Lis Pendens’ rule, which means returning to the pre-EU ‘forum conveniens’ rules. This means that the UK divorces will be determined by the rules covering the non-EU countries.

The likely impact

Indeed with the high uncertainty over the position post-Brexit, it is difficult to predict how divorce issues will be resolved. It does however raise the concern of the recognition of the UK divorces across the EU. Thus this poses difficulty to clients who wish to divorce in the UK but also for the divorce to be recognised in EU member states.

Consequently, costs and the timescales could further be impacted by duplicated proceedings and potentially irreconcilable decisions in different jurisdictions. Indeed the government suggests that the ongoing divorce cases will continue under the existing rules but the uncertainty still stems from the future divorce proceedings brought in the UK courts.

Other family law obstacles

EU law called Brussels IIa also covers the jurisdiction on: cases relating to child arrangement issues, circumstances where local authorities seek child protection measures as well as child abduction cases.

In case of no-deal Brexit, the fundamental principles of EU provisions will be affected and this will have a material effect  on individual lives.

Summary

At present, significant uncertainty is apparent on what the structure of family law will look like post-Brexit, since leaving the EU means that the EU Regulations will no longer apply. This will undoubtedly have a detrimental effect on the legal position of the UK family law.

For a confidential discussion about this area of law please contact IMD Family Law Team on 0044 333 358 3062 or info@imd.co.uk.

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