Yesterday the Government published the first of its guidance dealing with justice matters in the event of the UK leaving the EU with “no deal” on 29 March 2019. The Ministry of Justice published a technical notice on handling civil legal cases, which includes consideration of co-operation between the UK and the EU in family matters following Brexit.
Under the Government’s proposals, EU laws would be repealed where the Hague conventions apply.
Brussels IIA rules, on which divorce jurisdiction in the UK is currently primarily based, would be repealed in England, Wales and Northern Ireland. The different bases for divorce jurisdiction set out in Article 3 of Brussels IIA (save for joint application which is not applicable) would be replicated in English, Welsh and Northern Irish domestic law so that these bases apply for England, Wales and Northern Ireland for all cases. The additional basis of sole domicile of either party, would be available for all cases.
The EU ‘lis pendens’ rules would be repealed for all parts of the UK and, instead the courts in each UK jurisdiction would decide which is the most appropriate court to hear a case, as they currently do for cases outside the scope of Brussels IIA.
The UK would take steps to rejoin the Hague Maintenance Convention, of which we are presently a member only through our EU membership, on 1 April 2019. The guidance warns about maintenance arrangements entered into between 29 March and 1 April 2019.
Divorce recognition would continue to apply through the 1970 Hague Convention, which has been implemented by provisions in the Family Law Act 1986 and the UK’s participation in the 1980 Hague Convention would mean that most of the measures we currently operate with EU countries in child abduction cases would not change.
David Hodson, a partner at The International Family Law Group LLP, welcomed the proposals commenting:
“Probably a chief benefit is that instead of having two sets of laws, one for EU families and another for international non-EU families, the UK would have one combined comprehensive set of laws for all families around the world. There would be no restriction on the UK being signatories to family law conventions, agreements and arrangements with other countries, as there has been in recent years with EU membership.”
Katherine Rayden, senior partner at Rayden Solicitors stated:
"As the guidance from the Government is concerned, it seems clear that the repeal of Brussels IIa will mean the “first past the post” system will be lost and there will be a return to contested litigation concerning jurisdiction. Given the strain that the courts are already facing, there must be real concern as to how the Courts will cope with further litigation.”
Stacey Nevin, a senior associate in Kingsley Napley’s Family & Divorce team, said:
“It is a relief to see that in the event of a no deal Brexit, the lis pendens rule will be repealed across the UK. This will be a welcome change to many family lawyers. It is a system that often results in unfair outcomes and is contrary to mediation and non-court dispute resolution methods, or even reconciliation. However, the rule needs to be repealed across other Member States too if we are to avoid a one way street. If there is no deal, then there is nothing to prevent other Member States (where lis pendens will remain very much alive) from claiming they have jurisdiction as they were properly seized regardless of the connection to the UK.”