No-deal Brexit guidance: Family law
The Law Society has published guidance for solicitors that highlights the changes in civil and commercial cooperation that will occur should the UK leave the EU without having reached an agreement with the EU.
In this scenario, the EU and UK will have failed to sign a withdrawal agreement (governing the terms of the UK’s departure from the EU) and an agreement governing the future relationship between the two parties.
The UK will immediately leave the EU’s institutional structures without a transition period. In many areas, cooperation between the UK and EU will cease, and the applicable legal regime in many practice areas will change.
In this article we consider the loss of the Brussels II bis Regulation, Maintenance Regulation, Lugano Convention and 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations.
Key points to consider for solicitors working in family law:
- In some areas of law, such as child abduction, the Hague Conventions will continue to apply between the UK and EU/EEA states.
- National law rules will apply to family law in the UK and in EU/EEA member states (unless otherwise stated in the guidance), because all reciprocal elements of EU law will cease to exist. In the UK they will be repealed by the UK government.
- In some cases, bilateral treaties and conventions pre-dating EU membership may exist between the UK and EU member states. To find out whether this is the case, you will need to consult the national law of the state concerned. You may also need to contact a local lawyer in that country.
- The status of ongoing cases is unclear. The rules governing the enforceability of any case decided after 29 March 2019 will cease to have effect, and the risk of parallel cases taken in multiple jurisdictions is a distinct possibility.
- EU family law instruments based on the principle of mutual recognition will no longer apply cross-border between the UK and EU/EEA states. The Maintenance and Brussels II bis Regulations will not have effect.
- The Lugano Convention will not automatically apply in such a scenario. The UK would revert to existing domestic common law and statutory rules. The UK would need to be invited to become a member of the Lugano Convention and EU and EFTA states will have to ratify its accession.
- Many of the Hague Conventions on Private International Law will apply under a no-deal scenario.
- The cross-border recognition of judgments in relation to divorce will be governed by national law, unless the states involved are parties to the Hague Convention on divorce. This may result in conflicts of jurisdiction and parallel proceedings in different countries.
For guidance on the practical steps you may wish to take, read our joint notes with Resolution on practical recommendations for family law.