Family briefing: a survey of some ground rules for family lawyers in cross-border cases that will no longer apply in the event of a no-deal Brexit, and what might happen in their place

With 29 March fast approaching, how might a “no deal” Brexit affect family law practitioners and clients?

Scottish family lawyers will need to look at both Westminster and Scottish legislation. The draft Westminster legislation is the snappily titled Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019. The draft Scottish legislation was published on 25 January, the even more snappily titled Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc) Regulations 2019. A very brief overview follows.

Jurisdiction for divorce

This is currently determined in accordance with “Brussels IIa” (EU Regulation 2201/2003). The 2019 UK Regulations will revoke Brussels IIa in England & Wales; the Scottish regulations will revoke this in Scotland. The Scottish Government has indicated that the Scottish court will instead have jurisdiction if either of the parties to the marriage is (a) domiciled in Scotland on the date when the action has begun; or (b) habitually resident in Scotland throughout the period of one year ending with that date. This may be reviewed in the longer term. Grounds of jurisdiction for divorce will be different in England, as Westminster has replicated most of the grounds of jurisdiction from Brussels IIa, adding the ground of English domicile of either of the spouses.

Conflict of jurisdiction for divorce

Rather than the “first past the post” system in Brussels IIa, we will go back to forum non conveniens for any conflict between Scotland and the EU27. However, being first in time might still be important, from the perspective of how the courts in the EU27 deal with conflicts involving a non-EU country. Conflicts between England and Scotland will continue to be dealt with via the Domicile and Matrimonial Proceedings Act 1973, giving precedence to the last place the couple lived together.

Recognition of divorces

This will no longer be automatic between Scotland and the EU27. Instead, practitioners will need to check whether a Scottish divorce will be recognised in any particular EU country, and vice versa. Around half of the EU member states are signed up to the 1970 Hague Convention on recognition of divorce.

Transitional provisions

The European Commission has issued a “Notice to Stakeholders” dated 18 January 2019 on the withdrawal of the United Kingdom and EU rules in the field of civil justice and private international law. This sets out the EU position on what will happen with transitional cases. The notice states that where there are proceedings involving a party domiciled in the UK, which are pending in the EU27 on the withdrawal date, the EU rules for international jurisdiction will continue to apply. However, it does not state that where there is a case with an EU national proceeding in the court in the UK, the EU rules will continue to apply. This raises the risk of competing proceedings being issued in an EU court after 29 March, even where parties had previously thought the Scottish court was seised under the “first past the post” rule. It may be necessary to check the internal law of that particular EU country as regards conflicts with non-EU jurisdictions.

On enforcement of judgments, the EU notice states that if a judgment of a UK court has been exequatured in the EU27 before the withdrawal date, the judgment can still be enforced in the EU27. However, if a judgment has been handed down by a UK court, and enforcement proceedings commenced, but the judgment has not yet been exequatured before the withdrawal date, the EU rules will not apply. Examples of this would be maintenance judgments in which enforcement is sought under the EU Maintenance Regulation, or judgments in respect of contact in which international enforcement is sought in terms of Brussels IIa.

Jurisdiction for maintenance

The UK 2019 Regulation also revokes the EU Maintenance Regulation (Regulation 4/2009), and unlike with Brussels IIa, this revocation by Westminster is effective in Scotland also. At the same time, the statutory instrument which applied the rules of the EU Maintenance Regulation between Scotland and England (and so gave rise to the complexities of split proceedings for divorce and maintenance in the case of Villiers v Villiers) is also amended. At present, EU law does not allow maintenance orders based on sole domicile, so for some such cases, if a maintenance or need-based order will be sought, it might be beneficial to wait to start proceedings until after 29 March.

Enforcement of maintenance

Between Scotland and the EU27, this will be dealt with going forward through the 2007 Hague Maintenance Convention, which has very similar provisions on enforcement to the EU Maintenance Regulation. The UK Government is due to enact this shortly after the withdrawal date, on 1 April 2019.

Child abduction

The Hague Convention in relation to Child Abduction 1980, along with the 1996 Hague Convention, will remain in force. However, the overlay on the 1980 Hague Convention added by Brussels IIa is removed. The main impact of this will be taking away the six week time limit which applies in EU cases, as well as the potential override on an order for return. 

The Author
Lucia Clark, partner, Morton Fraser LLP
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