Family Law

On 12 July the Government published its post-Chequers White Paper, The future relationship between the United Kingdom and the European Union, which sets out broad proposals for the future partnership between the UK and the 27 other EU Member States over a wide range of policy areas. This provides an opportune moment to revisit the pressing issue of what the Government should aim to achieve in the area of international family law as we leave the EU. 

Whilst Parliamentary Committees of both Houses have recommended the retention of the existing EU legal framework as far as possible, the authors of this article believe that this reflects an assumption among many Parliamentarians (shared by some practitioners) that EU family law is preferable to any other system.

The authors are concerned that there has been insufficiently detailed consideration of the merits of the existing non-EU international instruments, which they feel provide pragmatic and workable alternatives to the two main pieces of EU family legislation.

In their paper “Brexit and international family law: a pragmatic approach to divorce and maintenance” (which can be downloaded via the link below), the authors argue that the Government should acknowledge that the key objective must be to achieve, to the fullest extent possible, continuation of the mutual recognition and enforcement of judgments and orders, in the areas of divorce and maintenance.

They argue that these core aims for the post-Brexit era can be met by existing international agreements, namely, two Hague Conventions which provide for recognition and enforcement in the areas of divorce and maintenance. They contend that these Hague Conventions have demonstrated their fitness for purpose over time, are in daily use, and do not suffer from the drawbacks of the EU laws which they would replace.  Using these Conventions, instead of a complex and politically problematical bespoke UK/EU arrangement, would have the added advantage of reducing the number of different legal instruments that apply.