It's the final countdown...to Brexit

Four and a half years after the Brexit referendum, and almost a year after the UK left the European Union, Brexit is almost here.  As matters stand, at 11pm on 31 December 2020, the UK is set to fall out of a number of mutually applicable EU regulations, with no replacement in place.

Whilst the UK left the European Union on 30 January 2020, it has been in a “Transition Period” ever since.  Throughout the Transition Period, the UK remained subject to and continued to apply the various EU regulations.  As a result, we have continued to be treated as a EU member state, in so far as EU regulations already in place.

The Transition Period comes to an end at 11pm GMT on 31 December 2020, after which the UK will be treated as a third party state by the 27 EU Member States (the EU 27).  As matters stand, the Transition Period will end with no agreement in place to govern the on-going relationship between the UK and the European Union. 

So what does that mean for family law?

What law will apply?

The question of what law will apply will depend on:

1. what other countries are potentially involved in the case;
2. the issue in question; and
3. when legal proceedings were instituted.

For any cases with no cross border element, the UK courts will continue to apply their own domestic law for any cases here.  England and Wales has different domestic laws to Scotland and Northern Ireland, who have their own independent legal systems.

For any cases with a cross border element with one of the EU 27, the EU regulations will remain available if the legal proceedings were instituted before the end of the transition period.  For example, if you start divorce proceedings and financial remedy proceedings in England before the end of the Transition Period (11pm, 31 December 2020), you will be able to make use of the existing EU regulations in the EU27 for enforcement and recognition in the future, if necessary.  If you do not institute proceedings until 1 January 2021 or later, you will not be able to make use of the existing EU regulations in the future if you need to.

Where enforcement in one of the EU27 is required in the future, you do not need a judgment or final decision by the court before the end of the Transition Period.  Providing the proceedings have been instituted before the end of the Transition Period, you can use the EU regulations to have that judgment recognised and enforced in the future even if the judgment is given after the end of the Transition Period. 

Unhelpfully, a definition of “instituted” for this purpose has not been provided.  However, it is generally thought to mean issued by the court rather than just submitted to the court.

For any cases with a cross border element that are instituted after the end of the Transition Period, the rules on jurisdiction, enforcement and recognition will depend on the country in question.   One of the key benefits of the EU regulations is that there is a harmonised set of rules between the Member States; from a lawyer’s perspective, this simplifies matters as there is a clear road map as to what should happen and what procedure should be followed where there are competing jurisdictions within the EU.  Post Transition Period, the UK will now be dealing with potentially 27 different legal systems, plus any differences between the individual legal states within the UK. 

When the UK falls out of EU regulations, there are existing instruments that will plug some of the gaps that are left behind, but these will not necessarily apply across all of the EU27.  The recognition of divorces provides a good example of where some gaps, but not all, are plugged. 

The recognition of divorces between EU Member States is provided for in Brussels iia.  After the Transition Period ends, the UK will fall outside of Brussels iia, however it will remain a signatory to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.  The 1970 Hague Convention includes provisions for the recognition of divorces, so will apply between the UK and the signatory states.  However, not all of the EU 27 is a signatory to the 1970 Hague Convention.  For those countries who are not signatories (for example, France and Spain), the position will depend on their domestic law. 

Unlike the Brussels iia, the 1970 Hague Convention does not deal with civil partnerships or nullity.  Therefore, even where a second state is a signatory to the 1970 Hague Convention, in those circumstances, it will still be necessary to check the relevant domestic legislation.

The 1970 Hague Convention does not contain provisions regarding jurisdiction; so where there are competing jurisdictions between the UK and a signatory state, we are solely reliant on the domestic law.

The above is just one example of where existing provisions may plug some gaps, but not entirely.  Further examples are set out in our previous blog, “Brexit and family law – what will happen to divorce, financial proceedings, prenups and cases involving children?”

Another key point to consider is that signatories to the various Hague Conventions can make reservations or declarations; so there may be a slight difference in applicability across the signatories, which must be checked at the outset.

Could the law change in the future?

Whilst the prospect of a bespoke family law agreement between the UK and the EU27 remains remote, there is always the possibility that this could change. 

What is potentially on the horizon is the UK’s accession to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Lugano Convention 2007 is an international treaty between the EU Member States, Iceland, Norway and Switzerland which sets out provisions to determine which national courts have jurisdiction in cross-border civil and commercial disputes and to ensure that judgements taken in such disputes can be enforced across borders. The UK is no longer a signatory, as it is no longer an EU Member State, however it has applied to accede to the convention as an independent member.  This would require the agreement of all signatories.  Whilst this has yet to be forthcoming, it is hoped that agreement will be reached, meaning the UK could rejoin the Lugano Convention in the future. 

Should I do anything now?

For some cases, it is clear at the outset that an individual would benefit from the EU regulations currently in place.  For example, if you are seeking an English order, but future enforcement seems likely and assets are situated in an EU Member State, instituting your legal proceedings before the end of this year may prove sensible, so you can benefit from the reciprocal recognition and enforcement provisions that exist between the EU and the UK. 

There are some instances where measures that are available now will no longer be available for individuals after the Transition Period.  For example, at the moment, if there is a divorce abroad but an English pension, a foreign order cannot share it.  In those circumstances, a party can rely on “forum necessitatis” (the forum of necessity) which is set out in article 7 of the Maintenance Regulation.  If no other member state has jurisdiction, but there is a sufficient connection to the UK (i.e. an English pension), the article 7 provision could be used to bring an application for an English pension sharing order for that pension.  The UK will cease to be a member of the Maintenance Regulation when the Transition Period ends and as matters stand, there is no replacement proposed for “forum necessitatis”.  If the English pension is the only connecting factor to this jurisdiction, then after the end of the Transition Period, the ability to seek a pension sharing order for an English pension after an overseas divorce will no longer be available.  For anyone who is in that position now, they should think about bringing an application before the end of the Transition Period (and the sooner the better), while the “forum necessitatis” route is still available.  For anyone in this situation after the end of the Transition Period, the position is very unsatisfactory.    This may be a point for future law reform, but as matters stand, there is no replacement proposed for our domestic law and this is unlikely to be resolved before the end of the Transition Period.

For some individuals, waiting may have benefits.  For example, after the transition period, it will be possible to “connect” yourself to this jurisdiction on the basis of the sole domicile of either party, without limiting the financial relief available to you upon divorce.  Currently, “sole domicile” is only an option as a residual ground and it limits the scope of financial applications, as considered in this earlier blog.  If the only basis for jurisdiction here is your or your partner’s sole domicile, you may wish to consider waiting until after the end of the Transition Period before you issue your proceedings.  However, this comes with a very serious word of warning.  Some EU Member States do not recognise judgments where jurisdiction was based on sole domicile alone.  If future recognition and enforcement in one of the EU27 is reasonably likely in the future, it is imperative that this point is checked as soon as possible.

Will I have time to institute legal proceedings before the end of the Transition Period?

If securing the provisions under the existing EU regulations is likely to be beneficial to you, you must institute your legal proceedings before the Transition Period ends.  The COVID-19 pandemic plus the Christmas period are likely to have an effect on the ability of the courts to process applications quickly.  Practitioners also predict a surge in applications, as individuals scramble to institute proceedings before the end of the Transition Period.  Therefore, the sooner you act the better.  The courts are aware of the urgency of some applications as we edge closer to the end of the Transition Period, and have assured practitioners that such work will be treated as a priority, however such applications must be appropriately flagged and the need for the application to be issued before the end of the Transition Period should be highlighted.

Will I need overseas legal advice?

As we head into a new era of family law, working with our overseas counterparts is more important than ever.  If your case has a cross border element, it is important to consider the need for cross border advice at the outset.  This is no different to how we approach cross border cases with third party states (i.e. non EU member states), however we have become accustomed to mutually applicable rules and regulations with the EU 27 which no longer apply, and we must get used to treating the EU 27 as a third member state.  Early cross border advice is likely to be imperative.

Further information

If you are affected by or concerned with Brexit and family law related issues, please contact a member of our international family and divorce team or click here to get started online and find out where you stand.

We have longstanding experience in advising international clients in cases involving complex and cross-border issues and we work closely with foreign lawyers and other experts to obtain the best results for you and your family. Working alongside expert lawyers in our immigration, private client, criminal and real estate teams, we are able to facilitate obtain comprehensive relevant legal advice for our clients.

You may also be interested in reading some of our previous blogs about Brexit and international family law issues, including:

• The financial consequences of relying on sole domicile in your divorce petition
• Why “where” matters – jurisdiction considerations for international divorces
• Pensions, divorce and the impact of Brexit
• Brexit and the race to divorce courts
• Property prices and divorce in the shadow of Brexit
• Brexit and relocating with children overseas – mind the immigration and family law gaps
• Brexit and family law – what will happen to divorce, financial proceedings, prenups and cases involving children?

About the author

Stacey Nevin is a Senior Associate in Kingsley Napley’s family and divorce team.  She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues and private children cases.  She works closely with Kingsley Napley’s immigration team to support clients where family and immigration issues need to be considered in tandem. Stacey is a member of the Brexit Working Party to the Resolution International Committee and Property, Tax and Pensions Committee, a group of lawyers formed to consider the impact Brexit will have on family legislation in England & Wales.