Brexit and Family Law
The transition / implementation period
As you are aware, the UK ceased to be an EU Member State on 31 January 2020. Transitional arrangements are now in place so it remains business as usual. During this implementation period to 31 December 2020, the existing EU rules (as well as the 1996 Hague Child Protection Convention, 2007 Lugano Convention and 2007 Hague Maintenance Convention) will continue to apply in the UK by virtue of the Withdrawal Agreement, not the EU Treaties themselves. This includes any CJEU judgments that are handed down during the implementation period which will become part of the retained EU law to be incorporated into UK law at the end of the implementation period.
The implementation period is set to end on 31 December 2020, but it can be extended if the UK and EU agree. We understand that any extension must be agreed and may be for either one or two years, which would take the end of the implementation period to 31 December 2022 at the latest.
Cases registered with the CJEU during the implementation period will continue through the hearing process until completion.
From 1 January 2021 onwards
As to the future, we will have to wait and see. What we do know at this time is that after the implementation period, the UK has legislation in place to convert the majority of EU rules into domestic legislation (retained EU law), but this will not carry the reciprocity which currently exists with the remaining EU Member States unless an agreement is reached.
We also know that the Withdrawal Agreement provides that UK courts are expected to decide cases concerning retained EU law in accordance with pre-exit CJEU decisions. However, the UK's Supreme Court can depart from CJEU decisions if it appears right to do so.
The longer-term implications of the UK's departure from the EU therefore remain unclear and in relation to cross-jurisdictional disputes are entirely dependent on what the UK and the EU are able to negotiate in terms of reciprocity.
We think that the following areas are of particular interest for practitioners with UK interested cases.
- One area to watch is in relation to nuptial agreements. If a couple reach an agreement, pre-end of the implementation period, as to which court should determine their maintenance claims on divorce, they could be bound by that agreement.
- The second area to watch relates to the status of financial relief when the divorce is filed in England on the basis of sole domicile; we are concerned that there may still subsequently be problems for recognition and enforcement of English orders abroad.
- In relation to the recognition and enforcement of contact orders and return orders (abduction) made pre-end of the implementation period, such orders with the appropriate certificate will continue to be automatically enforceable. Post-implementation period the enforcement process in the UK is likely to take longer unless an agreement is reached.
- Lastly, while the UK Government has indicated a willingness to ratify the 2007 Lugano Convention post-implementation period, no instrument of ratification has been deposited as yet. The UK is set to have UK legislation in place to do so and we understand that the UK has received statements of support from Norway, Iceland and Switzerland for the UK's intent to accede to the 2007 Lugano Convention. The UK is also set to have UK legislation in place to ensure that the 2007 Hague Maintenance Convention and the 1996 Hague Child Protection Convention will continue to apply post-implementation period (but this will need to be checked carefully).