Brexit: What Does A “No Deal” Mean For Family Law Cases?

The UK is scheduled to leave the EU at 23:00 on Friday 29th March 2019, regardless of whether there is a deal with the EU or not. Despite the fact that we are now only a few weeks away from “Exit Day”, there still remains uncertainty as to the circumstances of the UK leaving the EU and whether there will be a deal or not.

If any EU deal is made, it seems certain that EU laws will continue throughout any transition period. If there is “no deal” (i.e. no withdrawal agreement), then EU law will cease to apply as at 23:00 on 29 March. European law will be repealed, and we will be left reliant upon national law and international laws such as the Hague Conventions.

Some EU law has been incorporated in UK legislation. Some are standalone international agreements, such as the Hague Convention on International Child Abduction, and these will be unaffected if there is no deal. The most important change in the event of a no deal will be the effect on issues relating to jurisdiction, i.e. which country has the right to deal with a case, and enforcement issues.

There is a risk that other EU countries may not agree to recognise or enforce UK judgments. At the moment, where divorce proceedings could be issued in England and Wales or in another member state, jurisdiction is decided on where the proceedings are first lodged (the “first past the post” rule). If the UK leaves with “no deal”, the first past the post rule will end and matters will be decided on the “closest connection test” (i.e. which country the parties have the closest connection to).

Currently, civil divorces are recognised throughout the EU by EU law. However, if the UK leaves with no deal, this will not apply. Instead the 1970 Hague Convention will apply, but 15 member states are not signatories to this Convention. It is uncertain whether a civil divorce from England and Wales would therefore be recognised in any of these 15 member states.

Whilst key agencies connected with family law, such as Resolution and the Association of Lawyers for Children, have issued notes on the practical recommendations in the circumstances of a no deal, it still remains uncertain whether other EU states will recognise UK family proceedings or judgments.

If you’d like any further information or need family advice, please don’t hesitate to contact a member of our Family Team.