Well, it has been 2 and a half months since the Brexit transition period ended at 11pm on 31 December 2020, and as almost any lawyer could have predicted, the legal landscape is still as muddy as a frog pond. Only EU regulations not revoked under the EU (Withdrawal) Act 2018 still apply in UK domestic law. Despite this, the UK government has not passed any replacement legislation and is expecting lawyers to rely on pre-existing treaties or non-EU law to fill the gaps.
Pre-existing or transitional cases are governed by Title VI of Part 3 of the Withdrawal Agreement.
If proceedings were “instituted” prior to the end of the transition period then they follow the previous EU regulations and laws that were in force at that time. This includes when orders relating to those proceedings are made after the transition period. There is no definition of “instituted” but the general consensus among the legal community is that this can be safely assumed to mean “issued”. There is no other guidance on this currently. So at least one thing is (relatively) simple.
For all new cases issued after 31 December 2020 the situation is less clear. Since Brexit, the UK government has repealed some, but not all, of the EU regulations relevant to family law. The two main ones which have been repealed are Council Regulation 2201/2003 (“Brussels IIa”) and the EU Maintenance Regulation (Council Regulation 4/2009).
The situation is in flux and there is always the possibility that the UK government will pass additional legislation to fill the lacunae in the law that Brexit has created, but family law proceedings do not appear to have been a priority for them at any point. Until this changes, the practical impact of these revocations remains unclear.
The pre-Brexit position was governed largely by Brussels IIa. Jurisdiction in matters concerning parental responsibility was given to the state where the child was “habitually resident”. All judgments made in one EU Member State were automatically recognised and enforced in the other Member States.
The new position is that the UK will now rely on the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Child Abduction and Custody Act 1985 (which implemented the 1980 Convention), and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
Jurisdiction is now less clear because although it will usually be the country where the child is habitually resident that will hear the case, the phrase “habitual residence” is not defined under the 1996 Hague Convention. Whether it is open to the courts to reinterpret that phrase is yet to be determined.
There is no longer automatic recognition of UK court orders and decisions between the UK and other EU Member States. As such it is unclear now whether there will be a need to apply for “mirror” orders in EU states to ensure recognition and enforcement of orders relating to parental responsibility.
The impact of this is that there is a loss of certainty in numerous areas which will likely lead to protracted proceedings, additional costs and greater uncertainty and expense for all parties involved. There is also no longer a set timeline for dealing with international child abduction cases (under Brussels IIa cases were supposed to be dealt with in six weeks), and so there is concern that these cases will now take longer to resolve.
Previously the EU Maintenance Regulation (Council Regulation 4/2009) was the primary source of legislation governing maintenance between EU Member States. This covered all needs-based payments (not simply periodic payments such as spousal maintenance and child maintenance) “arising from a family relationship, parentage, marriage or affinity”.
Articles 3-7 of the EU Maintenance Regulation clearly set out the jurisdictional requirements for maintenance cases and the five different grounds for establishing jurisdiction (which largely related to where each of the parties was habitually resident). If parallel proceedings were brought in another EU Member State, they were required to stay the proceedings until jurisdiction had been established. If jurisdiction was so established, then the other court was bound to decline to hear the proceedings.
Again, the EU Maintenance Regulation ensured there was automatic recognition and enforcement of maintenance awards between the UK and other EU member states.
The UK is now relying largely on the 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance (for all EU member states other than Denmark), and the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (as between the UK and Denmark). These Conventions are much less developed than the EU Maintenance Regulations. It should be noted that the UK has also applied to join the 2007 Lugano Convention but has not yet been accepted. If they are accepted the rules relating to maintenance will become much clearer and largely similar to how they were under the EU Regulations.
The 2007 Hague Convention does not outline specific jurisdiction rules in relation to maintenance claims. There is currently an unfortunate dearth of guidance on this matter. If the maintenance payments relate to divorce then jurisdiction will be determined in line with the rules for divorce proceedings (see below). Otherwise the courts will determine jurisdiction differently depending on the type of maintenance case before them and depending on the individual domestic law of the states concerned.
Where parties have agreed in advance which forum should hear the case the UK will continue to recognise and give credence to these agreements; the EU will not, and such agreements will not be automatically recognised or enforced by EU Member States.
Despite Brexit, the UK will continue to recognise maintenance decisions of other EU Member States. Maintenance decisions made in the UK, however, must now be formally recognised by other EU Member States through a declaration of enforceability.
The impact of these changes is that there may be a delay in enforcement of maintenance payments, there may even be a loss of payments, and it will be easier for EU states to refuse to recognise and enforce UK orders and decisions on maintenance.
Cross-border divorce proceedings were largely covered under Brussels IIa and were relatively straightforward as a result. The simple rule was that whoever issued proceedings first got to have the case heard in their country (this was known as the “lis pendens” rule). It was a first come, first served process. All divorces granted in the EU were also automatically recognised in other member states including the UK.
Now, the UK has fallen back on the 1970 Hague Convention on the Recognition of Divorce and Legal Separations, the Family Law Act 1986 (which implemented the 1970 Hague Convention). Some of the provisions of Brussels IIa have been added to the Domicile and Matrimonial Proceedings Act 1973 (s.5 (2)) (as amended by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019).
Jurisdiction in divorce proceedings will now be decided by which court is the most appropriate forum in which to hear the case (known as the “forums conveniens” rule). This generally means the court which has the closest connection to the case. If proceedings have been brought simultaneously in the UK and an EU member state, then the UK courts do have a discretion to stay proceedings if they consider, on the balance of fairness and convenience, that the case should be heard in a different jurisdiction.
If EU countries are signatories to the 1970 Convention then divorces will continue to be recognised between the UK and those member states (although only 12 of the existing EU member states are signatories). If EU countries are not signatories to the 1970 Convention then divorces granted in England and Wales will be dependent on the national laws of individual EU member states.
These changes are likely to result in drawn out proceedings over the correct jurisdiction for EU divorces, as well as leading, potentially, to simultaneous proceedings and replicate decisions which are incompatible. It is also likely that divorces granted in England and Wales will not be recognised in many of the EU member states who are not signatories to the 1970 Convention.
There is little to no guidance for either practitioners or the courts on how to now interpret the gaping holes that Brexit has left in the fabric of our legislative cloth. Across the board the issue of jurisdiction is now much less certain and there is a high chance that in many cases there will be previously unnecessary litigation simply to determine venue.
Where previously UK court decisions and orders were universally recognised and automatically enforced across EU borders, it now appears this is largely not the case (but there are, of course, exceptions!). There is no satisfactory explanation of how this should be managed. The problem is that the simplistic approach of relying on older, less developed legislation has been taken. Clearly, it has not been sufficient, and the UK family courts have now been left to navigate the murky depths of the Brexit frog pond without direction or assistance.
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