How will the Brexit divorce affect my split?

Many relationships these days are international and involve couples who originate from different countries or who have made their home in one or more of the EU states. There are approximately one million British citizens living in other EU countries and some 3 million EU citizens living in the UK.

Although we have been a member of the EU for over 40 years, the other member states and the different countries of the UK have always retained their ability to set their own rules when it comes to the substantive matters of family law. Across the EU there are very different approaches to issues such as the reasons why someone can divorce (including whether fault is required), how much maintenance someone should be required to pay for a child or a spouse and for how long, the principles the court uses to decide how much time the child should spend with a parent after separation, when it is right that the state should intervene to remove a child from its parents' care and granting protection from domestic abuse.

However, over the years, the EU has developed rules and regulations which are helpful in deciding how things should work when disputes between families that reach across the borders of the member states. The key regulations are known as "Brussels IIa" and the "Maintenance Regulation" (Council regulations number 2201/2003 and number 4/2009 respectively). These primarily deal with procedural issues in relation to the question of jurisdiction and the recognition and enforcement of orders made by one country in another.

The Government has recently started to issue guidance for individuals and businesses to help them understand what they would need to do in a potential "no deal" outcome from the ongoing Brexit negotiations. On 13 September 2018 the Government published guidance which made it clear that in the event of a "no deal" there would be no agreed EU frame work for ongoing civil judicial co‑operation between the UK and the EU countries. Most of the EU rules that are in existence operate on the basis of reciprocity between the EU countries and in the event of a "no deal" situation the Government said it would repeal the majority of the existing civil judicial co‑operation rules and instead use the rules which each of the UK legal systems currently applies in relation to non‑EU countries.

That would alter the status quo significantly and has the potential to affect a very large number of people who may find themselves dealing with issues flowing from a cross border separation. There are currently approximately 16 million international families in the EU and there are around 140,000 international divorces within the EU each year.

In October 2017 the Family Law Bar Association (FLBA), the International Academy of Family Lawyers (IAFL) and Resolution an organisation of 6,500 family lawyers and other family justice professionals, responded to the Government's EU (Withdrawal) Bill 2017 - 2019 in their paper "Brexit and Family Law" in. In that they set out in detail the by and large positive impact that the rules and regulations from EU have had on the operation of family law in cross border cases and examined what should happen to family law upon withdrawal from the EU. The paper includes examples of how various proposals would affect families in real life and how the simplicity of the current EU family mechanism actually reduces red tape and legal costs for all involved.

For example, as the paper explains, under the current EU family law provisions if a German husband and an English wife, who have lived together in Germany during the marriage, intend to divorce but the wife returns to England following the separation and wishes to stat the divorce there then there are clear EU rules that decide which petition should proceed and where so that there are not multiple proceedings going on in each different countries. If following the divorce proceedings there had been an English court order for the husband to pay the wife maintenance and he stopped paying, then under the current EU rules the order can be enforced by the wife easily against the husband in Germany. The same would apply if there were children in the order for child maintenance.

If when the mother returned to live in England she failed to comply with an order to make the child available to spend time with the father, then currently he can use the automatic enforcement EU provisions to ensure that takes place. If the mother took the child to live in England without the father's or the court's permission, or if he failed to return the child following a stay with him, i.e. the child was abducted, EU provisions give a structured timetable so that abducted children are returned quickly and there is a back up mechanism that provides for the child's home country to make a determination of what is best for the child. Given the significant emotional impact on a child of abduction, the speed of such proceedings is key.

In its recent guidance the Government has said in a "no deal" situation occurs, once the EU regulations are repealed we would rely on The Hague Conventions on family law which they say cover many of the same areas. That is correct but the rules are not as detailed and the protection is not as strong and the Government guidance advised people to take legal advice as to how the changes may relate to their circumstances.

In relation to maintenance obligations, the 2007 Hague Convention would go some way towards assisting with the recognition and enforcement of such but does not contain any direct provisions for jurisdictions and falls short of what is currently covered by the EU maintenance regulation. The Hague Convention also allows countries to opt out of various provisions which is not permitted under the regulation. Therefore there are significant risks of claims for maintenance in another EU member state being much more complex and costly for the parties involved. In addition, the government has identified in its guidance that the UK would need to apply to join the 2007 Hague Convention in its own right which would not take effect until 1 April 2019 which would leave a gap of two days from the date of departure from the EU of 29 March 2019 before any frame work for recognition and enforcement was in place at all.

In relation to cases involving children, the 1996 Hague Convention on child protection provides some alternative provisions but it lacks, for example, the automatic enforcement of Child Arrangements Orders (which have been certified) as available under Brussels IIa. This again will affect the speed and efficiency of enforcement and will make enforcement of orders more expensive. Parents will be disadvantaged by this and ultimately it is likely children will miss out on having a relationship with a parent as ordered by a court as being in their best interests. Furthermore, returning back to rely solely on the 1980 Hague Convention in respect of child abduction would significantly weaken the tools available to the court in relation to children abducted to EU member states.

When it comes to divorce proceedings, the Government has said that in the event of a "no deal" it would repeal the Brussels IIa rules but that the different basis for divorce jurisdiction set out in the regulations would be replicated into English, Welsh and Northern Irish domestic law. The Scottish government is considering the best approach there in the area of divorce jurisdiction. However, it has said that the EU rule known as "lis pendens" which requires court's to halt divorce proceedings in one EU member state if another has already begun to consider the case would be repealed for all parts of the UK in a "no deal" situation. It would not be reciprocated by the EU courts. Therefore the courts in each UK jurisdiction will have to decide on a case by case basis which is the most appropriate court to hear a matter as they currently do for non‑EU cases. This is known as "forum conveniens" which means that in some cases there are lengthy and expensive proceedings in relation to arguments about which court is best placed to decide about a divorce case, leading to additional significant expense for the people involved. It also means that a decision made in a UK court is not necessarily going to be recognised by another member state, again which is likely to lead to further complications and expense.

The Government states that a "no deal" situation remains unlikely, however, clearly there is significant uncertainty about what is going to happen over the coming months. If it is possible to reach an agreement with the EU it is by no means clear what that means for family law and there are various options including retaining full reciprocity or negotiating a new bespoke arrangement. If you are an international couple and have separated and are considering divorce then it would be a good idea to take early advice as to the timing of a divorce petition given the uncertainty as to the immediate future. If you have already separated and have orders in place in relation to maintenance or the arrangements for your child to spend time with another parent then if there are any current difficulties with compliance with that order again it would be sensible to take early legal advice to try and resolve those matters prior to Brexit.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.