As Theresa May attempts to gain Parliamentary agreement for her withdrawal agreement, few commentators are so insouciant as to dismiss the possibility of a no-deal Brexit. The Law Society of England and Wales, certainly, is not amongst them. It has recently issued a raft of guidance aimed at solicitors concerned about the impact of a no-deal Brexit across a range of practice areas, including family law.
Regardless of the terms (or absence of terms) of the UK’s withdrawal from the EU, certain agreements, including the Hague Conventions, will continue to apply and will provide at least minimal safeguards post-Brexit. However, most practitioners are aware that resolving disputes between separating couples will become more complicated in the absence of an agreement governing the terms of the UK’s withdrawal and its ongoing relationship with the EU. It is this potential gap that the Law Society’s guidance seeks to address – and some of its most pertinent points are highlighted below.
National law rules
The UK government will repeal reciprocal elements of EU law. Consequently, family law practitioners in the UK must look to national law rules in the absence of explicit alternative provision, such as the Hague Conventions.
The Hague Conventions
Among other matters, the Hague Conventions govern international child abduction. Regardless of the manner of the UK’s exit from the EU, with one potential exception (relating to child support) the Hague Conventions will continue to govern abductions of children between the UK and EU member states. However, the ongoing application of the Hague Conventions on the cross-border recognition of judgments in divorce proceedings will depend on whether the relevant states are both parties to the Hague Convention on divorce. Where they are not, there is a risk of parallel proceedings in different countries.
Bilateral treaties and conventions pre-dating EU membership
The possibility of bilateral treaties and conventions that pre-date EU membership should not be ignored. It will be essential to take specialist legal advice in the relevant country. Furthermore, there is the possibility that the UK eventually may be able to conclude bilateral treaties, or ‘cluster’ treaties, with EU member states following a no-deal Brexit. However, the relevant EU member state must first obtain authorisation from the European Commission.
Ongoing cases
Practitioners and their clients must beware the particular risk attached to cases ongoing after 29 March 2019. After that date, the EU regime will cease to apply to a case. This opens up the possibility of parallel cases in multiple jurisdictions. In the event of a no-deal Brexit, it is also unclear whether a case decided on or before 29 March 2019 will be capable of recognition and enforcement in another EU member state. The Law Society has sought further guidance from both the UK Government and the European Commission on this question.
Mutual recognition
EU family law instruments, such as the Maintenance and Brussels II bis Regulations, which rely on mutual recognition by member states will cease to have cross-border application.
Lugano Convention
The UK would need to apply to re-join the Lugano Convention (and the government has indicated it would do so) and have its re-accession ratified by EU and EFTA member states. In the meantime, issues of jurisdiction and enforcement currently covered by this convention would revert to matters of domestic law.
Article by Rachel Ward, Head of Family Law at Aticus Law.
