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Amy Scollan examines what a no deal Brexit might mean for family law cases with European connections

  • May 31, 2019
  • By Amy Scollan, Partner

What might a no deal Brexit mean for family law cases with European connections?

As the prospect of a no deal Brexit emerges once more, family lawyers are again having to consider how this would affect our clients with European connections.

For many separating families with links in Europe, EU regulations have smoothed the path of resolving issues arising on divorce. This has been achieved by all EU countries applying the same rules when determining in which country a case should be heard, and by facilitating recognition and enforcement of judgments made in other EU countries. If the UK leaves the EU without a deal, these regulations will cease to apply in the UK.

Earlier this year, the government released the Jurisdiction and Judgements (Family) (Amendments etc) (EU exit) Regulations 2019. These govern what will take place should we leave the EU without a deal. There will be a number of changes from the current position, and three examples are considered here.

The country in which divorce proceedings take place can have a significant influence on the outcome of the related financial proceedings, with some countries (including England & Wales) having a reputation for being more generous than others. Currently, if a couple has relevant connections with more than one European country, the case will be heard in the first country in which a Divorce Petition is lodged. However, in the event of a no deal Brexit, this will change, and, where there are two possible countries in which a case could take place and the parties disagree about where it should be, the court will look at all the circumstances of the case, and the case will proceed in the country to which the parties have the closest connection.

  • This means that anyone looking to secure the jurisdiction of the English courts for divorce proceedings may want to start proceedings in England before 31 October if there is another European (or other) country with which the marriage may be considered to have a closer connection.

For many European families living across more than one country, or with property in more than one country, the ability to enforce an order for financial provision on divorce made in one EU state, in another EU state, is very important. This process was significantly streamlined by the 2009 EU Maintenance Regulation. The provisions of that regulation will continue to apply to UK orders made and registered before we leave the EU.

  • Therefore, if a couple have agreed financial arrangements but not yet formalised them into a court order, and have assets in, or one of them lives in, another EU member state, it would be worth aiming to finalise the order before 31st October.

When a child has connections with more than one EU country, EU regulations determine which country’s courts should make decisions about the child, for example, with which parent the child should live, and how much time they should spend with their other parent. The regulations also ensure that two countries’ judicial systems aren’t simultaneously considering arrangements for a child. If we leave the EU without a deal, this will now be covered by a different international convention, the 1996 Hague Convention. There are several differences between the regimes, including as to whether the same country should continue with the proceedings if the child’s residence changes, and as to the provisional measures a country’s courts can take where a child is present but not resident. There would also be more restrictions on the circumstances in which the parents can choose in which country’s courts proceedings relating to their children should take place.

These are just a few of the many issues that a no deal Brexit would raise for family lawyers, with many other complex and detailed issues arising. If you have any concerns about how a no deal Brexit could affect your family law case, then please get in touch with one of our specialist lawyers.

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