Family Law Post-Brexit

November 12, 2018, By

As we are all well aware, the United Kingdom will be leaving the European Union on 29 March 2019. There are ongoing negotiations being undertaken by our government but there is of course the risk that the UK will leave without having reached agreement with the EU.

Should such agreement not be reached, the UK will not have signed a withdrawal agreement. The planned transitional period should a deal be achieved will also not take place. This may have the effect that in many areas of law, cooperation between the UK and the EU member countries will cease and therefore the applicable legal regime in many practice areas will change.

Should no deal take place, this will cause change for family law. There is some ambiguity at this stage but the following points may apply.

In terms of abduction, the 1980 Hague Convention will still provide a mechanism for the return of children.

At present, matters involving children are dealt with by the country in which the child is habitually resident. This is governed by EU law. Therefore post Brexit, the legislation from the country in which the child resides will apply.

Also at present, if a judgment is made regarding a child, this judgment is recognised and enforceable in all other EU member states. After Brexit, it is not clear how the issues relating to enforceability will apply. It may therefore be the case that someone who obtains an order in England and Wales may well have to obtain a mirror order in the other country.

Unless further guidance is produced, family law will apply on a national basis and the reciprocal elements of EU law will no longer exist. It may be necessary to contact a lawyer in the other country to find out whether any bilateral treaties which predate EU membership may exist.

There is a risk that parallel cases may be taken in multiple jurisdictions as the status of ongoing cases is very much unclear as the rules governing enforceability of any case decided after 29 March 2019 will no longer have effect.

The true ramifications of a post Brexit world are yet to be fully understood. Family law will of course continue but perhaps, on a very different international path to what people have become accustomed to.