Family law and the B-word: when EU family law ceases to apply

family law

Like, I suspect, the majority of the population, my eyes glaze over at the mere mention of the dreaded word ‘Brexit’. Despite this, I braved Brexit and Family Law, a paper published by Resolution, the Family Law Bar Association and the International Academy of Family Lawyers setting out the options for family law following the UK’s withdrawal from the EU. The things I do for this blog.

Actually, this is of course a very serious matter, particularly in these days when family law disputes increasingly have a foreign dimension, with modern families regularly crossing international boundaries. As the paper says, there are approximately one million British citizens living in other EU member states, and some three million EU citizens living in the UK.

The legal implications of Brexit for international family law have already been examined here by Stowe Family Law Senior Partner Julian Hawkhead. As he explained, this is an important area that needs to be dealt with properly. Presciently, as far as this post is concerned, he said: “…my hope is that the Government will give it proper consideration and listen to the family law experts that they are consulting with, such as the Family Law Bar Association and Resolution.” Well, now those organisations have given the Government the benefit of their expertise. Let us join with Julian and the paper’s authors in hoping that the Government will give the paper’s recommendations the careful consideration that they require.

I’m going to begin this brief look at the paper by starting at the end. The first annex to the paper very helpfully sets out a full list of the EU instruments that affect family law. These range from the Brussels IIa Regulation, which deals with the issue of which jurisdiction should deal with family disputes, to the Maintenance Regulation which, amongst other things, deals with the recognition and enforcement of maintenance orders made in other countries. It should be noted that, as the paper points out, the instruments deal primarily with procedural rather than substantive family law: the countries within the UK have always set their own substantive family law and only apply their own laws in family cases. The paper goes into some detail about the effects of the various instruments, including giving useful practical examples of how real families are affected by them, and will be affected by the various proposals as to what will happen when we leave the EU.

On that note the paper’s authors consider that there are broadly three possibilities (excluding a ‘no deal’ scenario):

  1. We could replicate the EU instruments in our own domestic law and maintain the existing reciprocal arrangements between the UK and the other EU member states, which would effectively mean that we retain the current system.
  2. We could replicate the EU instruments in our own domestic law, but without retaining the existing reciprocal arrangements with the EU member states which, the paper says, seems to be the effect of the Government’s current approach in the EU (Withdrawal) Bill.
  3. Lastly, we could make our own bespoke arrangement with the EU, which sets out a new framework for family law cooperation between the UK and the EU.

The paper’s authors come out firmly in favour of the first option. Option 2, they say, is the worst of all outcomes, with the UK continuing to apply EU family law and being obliged unilaterally to recognise and enforce decisions of other EU member states, but those other EU member states would not being obliged to recognise and enforce our decisions. Such a scenario, say the authors, “would leave our citizens in a position of significant vulnerability and confusion and lead to unfair outcomes.” Option 3, say the authors, would take a very long time, and could not be achieved by 2019, when we are due to leave the EU.

The paper concludes by pointing out that there are further benefits of using option 1. Firstly, if it was used in any transitional period we would be able to see how that system functions on a longer-term basis, and whether a wholesale change in the manner of option 3 would even be required. Secondly, if the new system is the same as the old one then obviously that would increase legal certainty, so that family lawyers would be better able to advise their clients about how best to resolve family disputes.

You can read Brexit and Family Law here.

Image by m.hawksey via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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3 comments

spinner - November 16, 2017 at 7:14pm

We can’t have a situation where foreign court judgements of any kind are directly enforceable in the UK but there be no reciprocal enforcement relationship that would be ridiculous. From what I’ve read the enforcement of UK orders in the EU is currently patchy so the likelihood of there being an agreement after Brexit that seamlessly allows UK orders to be enforced throughout the EU seems unlikely. It’s probably easier to look at how orders are enforced between the UK and other non EU countries, this would mean that there will be a mixture of bilateral, multilateral and international conventions to navigate.

Paul - November 16, 2017 at 7:55pm

House of Commons debates family justice reform

https://goo.gl/MP5rqC

spinner - November 17, 2017 at 9:32am

Very nice, I agree with everything she say apart from about rights for cohabitation but if everything else she is talking about went through then I’d say that would fix 80% of what is wrong with the current system.

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