No Deal Brexit and Family Law

The UK leaving the EU without a deal is now a distinct possibility as we are only days away from the 29th March deadline. In this situation there will be no withdrawal agreement and no agreement covering the future relationship between the two parties. How will this affect family law issues?

Domestic law will apply in the UK. Reciprocal agreements with the EU will cease to have effect and it is likely that they will be repealed by legislation. In some instances, there will be pre-EU treaties and arrangements that will continue in force.

The Ministry of Justice and Foreign and Commonwealth Office have recently issued guidance for people who have family law cases in England and Wales, where one party lives in the EU. The guidance covers divorce, matters relating to children, child maintenance and child abduction.

Generally speaking, any concluded divorce, application regarding children or child maintenance cases will not be affected by any change in the law; any ongoing proceedings will be dealt with under the current rules and cases started after 29th March will be subject to the new rules (whatever they may be).

The rules about child abduction are unlikely to change as the Hague Convention will continue to apply with regard to most EU countries.

The current rules regarding jurisdiction for the purpose of divorce proceedings are mainly dependent on domicile or residence. If more than one EU country has jurisdiction then the case should proceed in the country where the proceedings were issued first in time. If the UK leaves the EU with no deal, these rules will cease to have effect and the “forum conveniens” rule will apply i.e. the most convenient forum for the interests of justice and the parties. Under this rule, the Court considers where the parties and the children live, the connections of the parties with the competing jurisdictions, where the assets are located etc. The application of this principle may result in a different outcome to the first in time rule.

Therefore, if you are considering a divorce, either you or your spouse has a connection with an EU country and it is important to you that the matter should be dealt with by the English Court, it is important that you issue proceedings prior to 29th March.

If you would like further help or guidance on family law issues, please contact our Head of Family Law, Joanna Toloczko on 020 3861 5155.