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Brexit – why a no deal is a family affair

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4th November, 2020

Whilst we continue to grapple with the long-term effects of COVID-19 on Family Law, another issue is looming just around the corner…Brexit.

The UK Government and the EU continue to negotiate a long-term deal and so, with only weeks before the end of the transition period, the implications on Family Law are still not fully known.  We are however aware of some changes to the way divorce, financial remedy and children matters will be dealt with by the Courts after 31 December 2020.

The biggest change will concern couples from different EU countries wanting to divorce in England (and vice versa).  Currently, where citizens of one EU member state are living in another, they can issue in either country and the Court where the Petition was first issued seizes jurisdiction.

This provision will end. As such, and following the conclusion of the transition period, it will be for the Courts to determine whether or not it has jurisdiction to hear divorce proceedings in the event of proceedings being issued in England as well as an EU member state. Cross-jurisdictional divorces will result in lengthy, and costly, disputes.

This could have an implication on financial matters, with many viewing the law in England as being far more favourable, certainly in respect of sharing property and spousal maintenance, than in other countries.

Maintenance may also be the subject of changes in the event of a no-deal Brexit.  Currently, maintenance awards in one member state can be enforced by another member state in the event of an ex-spouse moving.  However, the UK is a signatory to the Hague Convention on Maintenance through its membership with the EU.  After Brexit, the UK will remain a signatory.  As the convention and EU regulations have many similarities there shouldn’t be sweeping changes to the enforcement of maintenance award applications.

Finally, it might not be as easy to move with children between England and EU Member states following separation.  Currently, there are mechanisms in place to allow jurisdiction regarding child arrangements to pass between member states.  As such, if you have an Order governing the arrangements for the children in one member state and you move to another with the children, that Order would be recognised.

This is especially important in respect of parental responsibility that varies between member states, and in some states, the rights of fathers are not as well recognised as in England.  Any issues with the Order would be dealt with by the member state in which the children live.  Similarly, protocols are currently in place to allow for the immediate return of the children if they are abducted and moved between member states.

There are Conventions in place governing these matters but they are not as comprehensive as the current regulations between member states. As such, cases (including child abduction matters) will not be dealt with as swiftly and easily as they currently are.

Simon Mawsdley

Family Law

Partner
Email: [email protected]
Tel: 01244 405 415

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