We seem to hear almost daily updates in the news about the negotiations taking place in respect of our exit from the EU. Much of this is focused on how Brexit will effect businesses and immigration, however, as family lawyers we are also concerned as to how it will impact on separating families in the future.
The key legislation in this area is Brussels II(a) (Regulation 2201/2003). In brief, this essentially means that where there are competing jurisdictions, the court where the proceedings are initiated first will seize the jurisdiction. Once we leave the EU, if no new framework is put in place, this could have a huge impact on separating couples. Below are just a few of the potential issues that couples may face going forward if the current EU law is not replaced with an adequate alternative:-
- Foreign nationals divorcing in England may need to check if their English divorce will still be recognised in their state of origin, if we are no longer part of the EU;
- In cases of abduction we may have to rely on the 1980 Hague Convention for the mechanism for the return of abducted children, which is generally slower than the current mechanism set out in Brussels II(a);
- There may be the loss of the European Enforcement Order, which currently allows recognition of UK maintenance orders made by consent in other EU states;
- Potential practical issues in obtaining mirror orders in EU states/enforcing orders from EU states in the UK.
At this stage we do not know the government’s position in respect of these and many other issues that may affect family law. With only a few months until we officially leave the EU, we hope that the position will become clearer in the coming months and that family law will be a focus of negotiations.
