Brexit – what next for family law?

Posted: 07/04/2017

In the build up to the UK giving notice under Article 50 of its intention to leave the EU, two parliamentary committees have reported in the past month on the implications of Brexit on our courts. Different committees of both the House of Lords and the House of Commons discussed the impact that the UK leaving the EU will have on distinct aspects of the judicial system. Of particular concern for family lawyers are what procedures and legislation there will be if the various European regulations that currently address mutual recognition and enforcement across the EU of the decisions of the civil courts are lost.

The two committees heard evidence on the existing EU procedures for cooperation across EU countries regarding civil justice under three EU regulations: Brussels I (recast), Brussels IIa and the EU Maintenance Regulation.

This suite of EU regulations allows judicial decisions and judgments in national courts to be recognised and enforced across the EU. Of particular interest in family law is the role that Brussels IIa plays in setting out a framework of regulations concerning divorce and parental responsibility issues to ensure that EU citizens understand in which EU member state their cases will be decided. The Maintenance Regulation provides similarly in cross-border disputes over family maintenance. As the House of Lords committee acknowledged, ‘to walk away from these regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens’.

The House of Lords EU Committee focused specifically on the ramifications of Brexit on the EU programme of civil justice cooperation under the above EU regulations. Given the number of families that are now international in nature or where disputes between parents or married couples may include a cross border element, the committee recognised that these regulations have had an everyday human impact. They also acknowledged the benefits that Brussels IIa and the Maintenance Regulation have given in providing certainty and protection to children and families.

One option considered by the committee was a model whereby the Government could opt out entirely from such regulations and rely instead on the common law. The balance of evidence put to the committee, however, was overwhelmingly against such a proposal; there was recognition of the stability that the regulations have provided. A return simply to common law rules would be ‘a recipe for confusion, expense and uncertainty’.

The Lords concluded that in the area of family law there should be particular concern that leaving the EU without an alternative system being put in place would have ‘a profound and damaging impact on the UK’s family justice system’ and, more importantly, on the individuals caught up in the system.

The House of Commons Justice Committee reported on the implications of Brexit for the justice system generally, and noted in respect of family law that Brussels IIa and the Maintenance Regulation were improvements over their default alternatives. While it recognised that the EU system could result in the so-called ‘race to issue’ in divorce proceedings, whereby international couples can each rush to secure the most favourable jurisdiction when considering divorce, the committee felt that mutual recognition (and enforcement) of family law judgments was of ‘demonstrable value’. The committee recommended that the Government ‘should seek to maintain the closest possible cooperation with the EU in family justice matters’. The Lords’ committee stressed that even if the regulations are replaced like for like with identically worded domestic legislation, the international reciprocal nature of the regulations as between member states would be lost as the Great Repeal Bill ‘…will be insufficient to ensure the continuing application of the Brussels II and Maintenance Regulations in the UK post-Brexit: we are unaware of any domestic legal mechanism that can replicate the reciprocal effect of the rules in these two regulations'.

The Lords' committee called upon the Government to publish a coherent plan for the post-Brexit position to avoid great uncertainty for UK and EU citizens. 

In the meantime, Oxford family law partner Jane Mitchell commented: “This is the start of a long process: the Brexit impact will doubtless involve a period of uncertainty for separating families in the UK and in the EU and the impact of uncertainty is likely to be more litigation, greater costs, and increased delays in the court system.”

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