Family Law

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This article originally appeared in New Law Journal, the leading weekly legal magazine.

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It is now over nine months since the European Union (Withdrawal) Bill was introduced into the House of Commons in July of last year. The Government’s stated aim was to ensure the UK exits the EU with maximum ‘certainty, continuity and control’. We now know that we will be leaving the EU at 11pm on Friday 29 March 2019. It is still unclear as to how this will happen, although the Government has indicated its wish to maintain a deep and special partnership with the EU. With approximately three million EU citizens living in the UK and around one million British citizens living in other EU member states, the implications of Brexit for European couples separating or divorcing and for their families is wide-reaching and of concern to all family practitioners.

Family law Brexit options

The Government produced two papers highlighting certain issues with the overall approach but acknowledging that reciprocity between the UK and the EU is vital. In response, in November 2017, the Family Law Bar Association, International Academy of Family Lawyers and Resolution published their report, ‘Brexit and Family Law’, which sets out recommendations for the way forward. The report examines three main possibilities:

• The EU instruments could be replicated in our domestic law with existing reciprocal arrangements between the UK and EU member states being maintained. This means effectively retaining the current system.
• The EU instruments could be replicated in our domestic law without the retention of existing reciprocal arrangements with the EU member states.
• A bespoke arrangement could be reached with the EU establishing a new framework for family law cooperation between the UK and EU member states.

The report recommends that the best outcome would be for the UK to retain all EU family law provisions with complete reciprocity between the UK and the EU and an ongoing role for the Court of Justice of the European Union (CJEU) which would be a ‘central arbiter of disputes’ about how provisions are interpreted. The report also sounds a warning about the Government’s approach, which seems to be to replicate EU instruments in domestic law while alternative arrangements are negotiated. This is seen as problematic because lack of reciprocal arrangements with the EU member states could create unfair outcomes and uncertainty, as the UK would continue to apply EU family law and be obliged unilaterally to recognise and enforce decisions of other EU member states, while those EU member states would not be obliged to recognise and enforce our decisions. This gives rise to the understandable concern that it will create a one-way street which would ‘leave our citizens in a position of significant vulnerability and confusion and lead to unfair outcomes’. The report concludes that there is insufficient time to reach a bespoke arrangement with the EU by 2019 and firmly recommends that Option 1 (above) is followed in the interests of increasing legal certainty for clients.