Spotlight
Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Hundreds of thousands of companies worldwide fall victims to hackers every year. Is your firm one of them?
SPONSORED CONTENT Image source: Information is beautifulYou and other lawyers and legal assistants in your firm likely have accounts on the hacked websites listed in the image above. If a hacker...
New complaints handling guide offers advice to local authorities
The Local Government and Social Care Ombudsman is today issuing new guidance on effective complaint handling for local authorities.Based on previous documents, the new guide offers practical,...
EU laws continue until at least 2038 and beyond
The UK left the EU on 31 January 2020.  But in matters of law it fully leaves on 31 December 2020.  But EU laws will continue to apply, and be applied, in the English family courts from 1...
Family Law Awards winners announced in virtual awards ceremony
The winners of the Family Law Awards 2020 were announced at 4pm during a much-anticipated virtual awards ceremony. Over the past ten years, the Family Law Awards has recognised the leading players in...
Behaviour-based divorces still merit close consideration
Some recent cases illustrate the evidential and procedural issues involved in dealing with proofs on the merits of divorce, which are worth considering even though most cases may conclude on a...
View all articles
Authors

Brexit and divorce – what next for families?

Sep 29, 2018, 20:01 PM
Brexit, family law, habitual residence, jurisdiction, enforcement, recognition, children, abduction, maintenance
The triggering of Article 50 of the Treaty of European Union on 29 March 2017 began the process of the UK’s withdrawal from the EU, and this week the negotiations commence.
Slug : brexit-and-divorce-what-next-for-families
Meta Title : Brexit and divorce – what next for families?
Meta Keywords :
Canonical URL : http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/brexit-and-divorce-what-next-for-families
Trending Article : No
Prioritise In Trending Articles : No
Date : Jun 21, 2017, 05:06 AM
Article ID : 114226
Lisa Girdwood
Brodies LLP


The triggering of Article 50 of the Treaty of European Union on 29 March 2017 began the process of the UK’s withdrawal from the EU, and this week the negotiations commence.


The International Family Law Practice (by David Hodson) provides comprehensive coverage of the international elements of English family law. Subscribers can log in here.

Find out more or request a free 1-week trial to the online service. Please quote: 100482. 




Because we have a comprehensive system of national law which governs divorce and child-related matters, it may be imagined that family law is unlikely to be affected by Brexit but certain aspects of procedural family law are very important for couples and these will be affected by Brexit including:

  • which country should hear an application for divorce or an application in relation to children?
  • how are Scottish judgments to be recognised and enforced in other European countries?
  • how are European judgments to be recognised and enforced in Scotland?
  • child abduction within Europe
  • maintenance.
All of these matters are governed by European regulations which have provided certainty and security for separating couples for many years.

Jurisdiction

International relocation is not uncommon today. There are many families who have taken advantage of free movement and who have lived either for short periods or more permanently in other European countries.

When relationships break down in circumstances such as this, the question of where proceedings will be raised is thrown into stark relief. European Regulation (Brussels II Bis.) provides a common basis for jurisdiction throughout the EU in actions of divorce, separation and nullity of marriage.

The basis for jurisdiction is habitual residence. There is a clear and efficient rule in place to overcome conflict if a court in more than one country has jurisdiction.

Essentially, who gets to court first, wins. 

The proceedings within the member state in which the divorce action was first raised take priority. The White Paper on the Great Repeal Bill sets out the government’s proposals for giving effect to EU law in force at the time of Brexit. Replicating the certainty provided by Brussels II Bis. within national law is of importance to the many separating couples with European links.

Recognition and enforcement

Brussels II Bis. also provides for the automatic recognition of divorce actions concluded in one member state by other member states, without the need for further procedure. Brexit raises concerns about how readily Scottish judgments will be capable of enforcement elsewhere in Europe and conversely how readily European judgments will be capable of enforcement in Scotland.

Brexit and children

Brussels II Bis also regulates jurisdiction in relation to matters concerning parental responsibilities. Again certainty flows from the jurisdictional rules contained within Brussels II Bis. for child-related cases. And clarity for children may be particularly important.

Time is of the essence for parents trying to re-establish contact with children and of course for the children themselves who find themselves in the midst of adult conflict.

Child abduction

Although exiting the European Union will not affect the UK’s obligation under the Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention) which governs international child abduction, the protections for children provided by the Convention are enhanced by Brussels II Bis. It imposes certain helpful time-limits to ensure that such cases are resolved within 6 weeks where the child has been abducted from one member state to another.

Enforcement of maintenance

Other European regulations facilitate the enforcement of maintenance orders throughout the EC. They permit an individual who seeks maintenance to obtain a maintenance order in one member state which is easily enforced in another member state.

In addition, the regulations facilitate couples agreeing and resolving matters long before separation may be contemplated. The validity of prenuptial agreements which determine in which country an application for maintenance should be determined may be in jeopardy upon Brexit if similar legislation is not enacted in the UK.

Looking to the future

At a time when international relocation is commonplace, it is of some comfort to separating couples to know that they can readily access information about where they can raise divorce actions and about how orders might be enforced in countries throughout Europe. Brexit may leave a significant vacuum.

We await with interest what progress may be made in the ongoing negotiations to ensure that this vacuum is filled for families.

Whilst legislation may be possible to replicate the rules on jurisdiction and the rules for the recognition and enforcement of orders, replicating the longstanding spirit of co-operation between EC member states which has benefited families, may be more difficult to salvage.
Categories :
  • Articles
Tags :
Brexit_2
Authors
Provider :
Product Bucket :
Load more comments
Comment by from