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What will Brexit mean for Family Law?

Published: 16th March 2020

What will Brexit mean for Family Law?

The UK has now technically left the EU, but at present, you’d be hard-pressed to notice. The real change will come on 1st January 2021 when the “transition period” will end and the UK will be a fully-independent country again.

It’s been widely acknowledged that this will have major implications for both the UK and Europe and there has been extensive discussion about the impact on certain sectors such as finance, transport and fishing. So far, family law appears to have flown largely under the radar, but Brexit has the potential to lead to major changes in this area and they may not be at all welcomed.

Brexit and “Brussels II bis”

“Brussels II bis” essentially requires that a judgement made in the courts of one Member State must be recognised by all other Member States without the need for any further procedure. This does not mean that any state can claim jurisdiction over any legal issue. For the most part, the basic principles of jurisdiction still apply (i.e. there must be some sort of meaningful connection between the court ruling on the case and the case itself), but it can lend a degree of flexibility to them.

In the context of family law, for example, couples who legitimately have a connection with two (or more) Member States could choose to file in either one, safe in the knowledge that the judgement would be recognised in either. This could make “sticky” processes, like divorce and child-custody arrangements, somewhat more bearable. That said, it can also lead to a “race to file”, which goes against the principles (and practice) of mediation, reconciliations and early settlements.

If Brexit results in the UK withdrawing from the Brussels II bis, then the “race to file” may end up being replaced by the race to litigate in the EU against judgements made in the UK and vice versa.

Brexit and divorce

Each individual legal system has its own view on how best to achieve a fair distribution of assets after the break-up of a marriage. The system in England and Wales tends to be very favourable to the financially-weaker spouse. There are five main reasons for this.

Firstly, the courts have a lot of power to order financial disclosure. Secondly, in a number of cases the courts will work under the Presumption of 50:50, in other words, they aim to divide assets equally, so they will start by trying to achieve a 50:50 split. Thirdly, courts can award life-long maintenance. Fourthly while prenups carry weight, they are not (yet) legally-binding and fifthly courts have a lot of discretion in how they achieve their aim.

Putting all this together, it’s easy to see how the differences between the courts in England and Wales and the courts in the rest of the EU could lead to some bitter legal fights post-Brexit, especially in cases where significant assets are involved.

Child arrangements

One major concern about Brexit is the fact that it could potentially lead to lengthy delays resolving child abductions. At present, EU Member States are required to resolve them within six weeks, but under The Hague Convention, The Luxembourg Convention and the Family Law Act (1986) they can take far longer. Hopefully, the UK will come to an alternative arrangement with the EU, at least in this area of the law.

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