Natasha Isaac, pupil at 1 Crown Office Row, summarises the latest guidance on family law in the case of No Deal Brexit issued by Resolution and the Law Society, with input from David Hodson OBE MCIArb and Daniel Eames. Find out more on the Law Society website here, or members of Resolution can get the guidance here.
- If the UK leaves the EU on 29 March 2019 with no deal EU law will immediately cease to apply at 11pm on 29 March 2019. There will be reliance on national and international law, such as the Hague Conventions.
- The government is introducing a series of statutory instruments to apply in these circumstances. The Jurisdiction and Judgments (Family)(Amendments etc) (EU exit) Regulations 2019 includes the important, extensive and substantial transitional arrangements.
- In general terms an EU member state will not give effect to a UK order made before 29 March 2019 unless the required registration procedure was also concluded before 29 March 2019. This process varies between divorce, finance and children matters.
- At the moment where divorce (or similar) proceedings could be brought in England, Wales or another EU member state forum is decided on where proceedings are first lodged.
- On leaving with no deal, the lis pendens rule will end and forum cases involving an EU member state will be decided on the basis of forum non conveniens – the ‘close connection’ test as presently prevails in non-EU cases.
- Advice from the other country should be taken as it it not known how member states will respond.
- Existing divorce jurisdiction will continue as national law, save that sole domicile would also now be immediately available in all circumstances.
Recognition in EU members states
- On leaving with no deal roughly half of Eu member states who are signatories to the 1970 Hague Convention are highly likely to recognise divorces in England and Wales. 15 member states are not parties. Practitioners should consider obtaining decree absolute before 29 March 2019. Legal advisers should consider discussion of expediting the proceedings with clients.
- Leaving with no deal will mean that the EU Maintenance Regulation comes to an end, but this will be immediately replaced on 1 April by the 2007 Hague Maintenance Convention.
- There might therefore be maintenance cases between UK countries which may be more or less beneficial to be commenced before Exit Day; the EU requirements regarding also completing the registration process would not apply intra-UK. This is most likely to be relevant in some Anglo Scottish cases.
Sole Domicile Jurisdiction Financial Applications
- Practitioners who have existing, ongoing, sole domicile cases where their client would want to make needs-based claims should give consideration to adjournments until after Exit Day when the court would be able to make needs-based orders.
- Sometimes this jurisdiction is not available, simply because the parties have no ongoing UK connection apart from the existence of a pension here. Accordingly, reliance is made on Art 7 EU Maintenance Regulation, which provides for a so-called “forum of necessity”. This will cease to be available on Exit Day if there is no deal.
- Brussels II allows contact orders and orders for the return of a child to be directly enforced provided there is an Annex III and IV Certificate respectively.
- In considering whether to make any expeditious applications before 29 March, practitioners will need to consider the respective substantive laws and procedural requirements under Brussels II and 1996 Hague. This is true in respect of both outgoing and incoming cases from the EU.
- Practitioners are likely to receive further updates in this rapidly developing area and must consider their cases individually including advice from lawyers abroad where necessary.
- There is limited time before 29 March and practitioners may need to consider expediting proceedings.