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Family law, data, civil disputes - what happens in the wake of a no-deal Brexit

12 November 2018

Growing concern that the UK could exit the EU without a deal has led the Law Society of England and Wales to publish the first in a series of papers giving solicitors guidance so they can take steps to mitigate some of the risks.

“Law cuts through every area of life – family, data, disputes between businesses – and of course we export more in professional services than we import,” said Law Society president Christina Blacklaws.

“That trade surplus translates to revenues the country spends on public services – so the health of the UK legal sector, which is worth approaching £30bn annually, matters to us all.”

The first tranche of papers gives advice on some of the potential rule changes where a deal goes wrong between a business here and in the EU, what happens in family law if a couple splits up and how we should approach data sharing if we quit the EU without any agreement. There is also a paper on legal services.

So, for example, the Brussels II Regulation is a single legal instrument which helps families resolve disputes about divorce and the custody of children where they involve parties in more than one EU state.

Under the regulation, EU courts automatically recognise judgments delivered in other EU states on matrimonial and parental responsibility.

This will no longer apply to the UK once we leave the EU.

The Maintenance Regulation meanwhile helps ensure the payment of maintenance in cross border situations – again that will no longer apply.

“Whatever you think of Brexit, it has opened up a Pandora’s Box of complicated personal and business issues which were previously dealt with under EU rules,” said Christina Blacklaws.

“Some areas – such as family law – are partly catered for by other agreements that will still apply such as the Hague Conventions. But there’s little doubt that resolving disputes will become much more complex and much more costly.

“That’s true too of financial disputes between businesses and individuals that fall under civil law. Here there are currently no international conventions that can be used to help and the result is that the enforcement of these judgments will depend on the national law or the possibility of relying on old bilateral conventions from 1920s or 1930s.

“Furthermore, it’s not clear, for example, what will happen with ongoing cases if we exit the EU without a deal. Our presumption is that as there is no reciprocity and no agreement on on-going cases, even the judgments from these cases are not enforceable under the reciprocal EU rules.

“And while, at the moment, court judgments in Britain are recognised in EU countries and vice versa, once we leave there is a risk parallel cases may be taken up in multiple jurisdictions. Not to mention that the parties will need two legal teams to run these cases as the qualified lawyers are no longer able to represent their clients in each other’s jurisdictions.

“This will push the cost of litigation beyond the reach of many small and medium-sized businesses.

“Britain’s removal from the EU data framework will also make transactions a good deal more complex.”

Christina Blacklaws added: “What we’re trying to do is assist solicitors as they will be at the forefront of finding work-arounds in the wake of a no-deal Brexit.

“What seems certain is that anything cross border is likely to be more expensive and more complex - our members and the general public need to be ready for that.”

Notes to editors

Read our no-deal Brexit guidance: Providing legal services in the EU

Read our no-deal Brexit guidance: Civil and commercial cooperation

Read our no-deal Brexit guidance: Data protection

Read our no-deal Brexit guidance: Family law

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Ben Davies | ben.davies@lawsociety.org.uk | +44 (0)20 7316 5592