Brexit and family matters

On 31 December 2020, the transitional period under which the UK left the European Union came to an end. With this date, the provisions of the Regulation came into force, among others. Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479). They set out a number of changes to legislation in the field of judicial cooperation in civil and commercial matters. This includes rules on jurisdiction and the recognition and enforcement of judgments. The reorganisation of a number of procedures has meant that issues concerning, inter alia, family law continue to raise some jurisprudential questions. Accordingly, in today's article I will deal with clarifying this, How brexit has affected family matters. I will point out which pieces of legislation have been the basis for sentencing in England to date and those that apply now.

I invite you to read on.

The date matters

31 December 2020 is the cut-off date that marks the impact of the UK leaving the EU. It is therefore of considerable significance for litigation - including family and succession matters. Litigation commenced before the end of the transition process (and therefore before 31.12.2020) will continue in accordance with the applicable law and the principles of Council Regulation 2201/2003 (Brussels IIa) to determine jurisdiction. Indeed, until now, it is this legal act that has applied to all divorce, legal separation and divorce annulment cases in England and Wales - in addition, whether or not the case is cross-border.

Explanation:

Determining jurisdiction means nothing more than designating the court with international jurisdiction. Indeed, the purpose of this act is to designate the competent court that will hear and determine certain cases or carry out other acts in civil proceedings. On the basis of this, the spouses may have the right to bring an action before a court in several different Member States. Parallel proceedings are avoided by the lis pendens rule in Article 19, which requires the court second seised to suspend the proceedings pending before it.

By contrast, EU rules can no longer be invoked in cases where the claim (or application in a non-proceeding) is brought after 31 December 2020. Consequently, judgments rendered by the courts of Member States will not automatically be recognised in the UK. These issues are governed by the relevant international agreements or UK domestic law.

Divorces in the UK

Until now, the Brussels II bis Regulation has been applicable between EU Member States and the UK and has been a tool for determining, among other things, the

• In which court can divorce proceedings be initiated,
• which court has priority in dealing with the dispute or
• whether the court deciding on the divorce also has jurisdiction to decide on questions of parental responsibility.

In contrast, after the transitional period, the rules on the independence of the case have changed, among other things. In this respect, it should only be noted that, as a result, the English court has the right to suspend the proceedings if it considers that a court of another state is obviously and demonstrably more appropriate for the resolution of the dispute.

Recognition of divorces granted in EU Member States

The previously mentioned regulation Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479) has become the basis for:

• the repeal of the Brussels Regulation and its predecessors insofar as they applied in the UK;
• extinction of the effects of the 2007 Lugano Convention. 

Consequently, phe rules governing jurisdiction in all cross-border disputes, including those involving parties resident in the EU (or in other States party to the 2007 Lugano Convention), derive from the domestic law of each UK jurisdiction.

What does this mean? 

In England and Wales, all cross-border disputes are governed by common law together with various statutory provisions. This includes, in particular, Part 6 of the Civil Procedure Rules 1998 (notably Practice Direction 6B).

For proceedings that started after the end of the transitional period, the courts in England and Wales will recognise divorces granted in EU member states in the same way as it currently does for orders from non-EU countries. The phe provisions on the recognition of divorce found in the Family Law Act 1986. Among other things, it implemented the 1970 Hague Convention on the Recognition of Divorce and Legal Separation. Twelve EU Member States are currently parties to the Convention:

• Cyprus,
• Czech Republic,
• Denmark,
• Estonia,
• Finland,
• Italy,
• Luxembourg,
• The Netherlands,
• Poland,
• Portugal,
• Slovakia,
• Sweden.

The European Commission has published guidance setting out the rules that will apply in EU Member States to cross-border family law disputes involving the UK herein.

Brexit and family matters concerning children (parental responsibility)

For cases involving children, the Brussels IIa normative act was also repealed after the end of the transitional period. In cases starting after the end of the transition period, the courts apply the 1996 Hague Convention on the Protection of Children. On its basis, it is possible, inter alia, to enforce orders issued in EU Member States. This mainly concerns the application of child protection measures, as well as the return of the child to the place of habitual residence.

However, when it comes to cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters - Council Regulation (EC) No 1206/2001 between the UK and the EU Member States is no longer applicable. The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Evidence Convention) between the UK and those EU Member States that are party to the Convention will apply.

Exceptions where the Convention does not apply are: Austria, Belgium, Ireland. In cases where the Convention does not apply, it will be necessary to send pleadings to national courts by diplomatic means.

Brexit and family matters - a summary