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How Might the “B-Word” Affect Family Law?

Reasons to choose Wilson Browne

Brexit has dominated the political and constitutional headlines for months, but it is “challenging” to consider the implications for us all in respect of the possible legal implications, including those in the arena of family law.

Regulations have been pushed through Parliament under the European Union (Withdrawal) Act 2018 (EU(W)A2018) to revoke and repeal (as necessary) UK legislation that has given effect to European directives along with EU Legislation which is directly enforceable in the UK.

“Exit Day” on 29 March 2019 is disturbingly close. What changes may occur at 11pm on that day?

Will transitional provisions be agreed as the UK ceases to be a member of the EU? What difference will the Governments stated “300 contingency work streams” make in practice?

It is unclear how/whether it will be possible to enforce judgments made in UK Courts in the remaining 27 EU Countries, for example those regulating arrangements for the care of children and child maintenance that cross international boundaries. For those cases where a judgment was pronounced before Exit Day but not yet enforced, but needed to be implemented after that day, there could be a significant disadvantage – for them the goal posts have been relocated on a pitch that has become decidedly uneven. Where there is a dispute over which national Court has jurisdiction, such as in divorce proceedings, where people have lived and worked in different countries, the situation is very unclear.

If there is any form of deal then it is likely that existing arrangements will remain in place during any transition period to provide temporary stability and certainty.

Without a deal, there is likely to be a need to rely on existing international arrangements such as the Hague Conventions to deal with matters such as the return of children unilaterally taken from one of the remaining EU Countries. Advice would need to be sought from lawyers in the local countries as the options and proceedings that could be pursued to supplement and implement such international agreements. However, not all EU countries are signatories to all the Hague Conventions, and so in those countries there is no certainty for example that Decree Absolute obtained in this country will be recognised as formally bringing a marriage to an end.

It is foreseeable that orders made by the Court in this county, be those in relation to children, divorce or finances, before Exit Day will be more easily enforceable in the EU countries. On that basis if there is any possibility of finalising proceedings, that should be pursued with as much persistence as possible in the context of the Court’s already struggling administrative process.

Should you require specific advice on any aspects of family law contact the Family Law team on 0800 088 6004.

Edward Rawlins

Posted:

Edward Rawlins

Partner

Ed has over 20 years experience as a specialist advising on situations arising from the breakdown in relationships (marriage, civil partnerships and cohabitation) in respect of both children, finances and business assets. He is a member of Resolution and a Law Society Accredited Family Mediator.