Brexit
  • My LS

Private family law after Brexit

This guidance is relevant to private family law proceedings with an inter-EU element. This includes proceedings relating to divorce, maintenance and private children law.

It sets out how jurisdiction and forum will be applied to proceedings instigated on or after 1 January 2021 and impacts on recognition and enforcement of orders.

For cases instituted on or before 31 December 2020, EU legislation will continue to apply, even where orders relating to those proceedings were made in 2021 and beyond.

This guidance will be updated should the UK accede to the Lugano Convention 2007.

Introduction

As an EU member state, the UK was part of the ‘Brussels Regimes’. These are a series of legal instruments that have facilitated judicial co-operation in civil, commercial and family law between member states for several years.

Cases that were instituted in UK courts on or before 31 December 2020 still fall under this regime, even if subsequent orders or requirements for EU recognition and enforcement are made in 2021 or beyond.

In family law, the main EU instruments are:

The transition arrangements, relevant for UK proceedings and for EU proceedings concerning the UK, are contained in articles 67 to 69 of the Withdrawal Agreement.

These articles set out that, for cases where proceedings have been instituted before the end of the transition period (31 December 2020), EU instruments and rules will continue to apply right through to the recognition and enforcement of a judgment/order in those proceedings.

For this to apply, substantive proceedings must have been instituted.

Post-Brexit laws

Cases instituted after 31 December 2020 will either fall under:

  • the existing international instruments of the Hague Conference on Private International Law, to which the UK and the EU are party, or
  • national law found in primary and secondary legislation

The relevant Hague conventions include:

An overview of the instruments is set out below.

After Brexit, there are new frameworks and guidelines for proceedings in each of the following areas for private proceedings:

EU instrument Rules relating to After Brexit – cases instigated after 31 December 2020
Brussels IIa Regulation (EC) No 2201/2003 Divorce jurisdiction

No equivalent Hague convention rules. See paragraph 2.1

Divorce recognition

1970 Hague Convention, but only in respect of cases from 12 member states. Domestic private international law for other cases

Parental responsibility jurisdiction

1996 Hague Convention (ratified by all EU member states)

Parental responsibility recognition and enforcement

1996 Hague Convention (ratified by all EU member states)

Child abduction jurisdiction 1996 Hague Convention and 1980 Hague Convention
Child abduction 'override' (recognition and enforcement of a particular kind of decision)

No equivalent Hague convention rules. Domestic private international law will apply

Maintenance Regulation (EC) No 4/2009 Maintenance jurisdiction

No equivalent Hague convention rules. Domestic private international law will apply. See paragraph 3.1

Maintenance recognition and enforcement 2007 Hague Convention, although the UK may accede to the Lugano Convention 2007

Resources

EU guidance on civil justice transitional arrangements

GOV.UK guidance on family law disputes involving the EU: guidance for legal professionals from 1 January 2021

Family law leaves the EU: a summary guide for practitioners by David Hodson, LexisNexis

Maximise your Law Society membership with My LS