Whilst the decision to separate can be a long time coming for many couples, there can be few separations which have been more troubled than the UK's withdrawal from the EU. The ongoing uncertainty over the next stage of the Brexit process – the end of the transition period on 31 December 2020 – has brought with it acute uncertainty for many of the families who seek advice on family law issues.
The Scottish Government has provided some clarity on matters affecting families post-Brexit, in the Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc) Regulations 2019 (the “Family Law Regulations”).
And there is more to come in the Jurisdiction, Judgements and Applicable Law (Amendment) (EU Exit) Regulations 2020 (in draft at time of writing). The general approach of the Scottish Government on jurisdiction in family law matters is to revert to the law in force before EU provisions were in place and in the area of recognition and enforcement to rely, where possible, on international conventions, at least for now.
How will Brexit affect family law in the UK?
The areas of family law which will be most affected by the UK's withdrawal from the EU are those that involve a cross-border element, for example:
- jurisdiction to hear an application for divorce, for the dissolution of civil partnerships, for parental rights or for the regulation of the care of children;
- cross-border recognition and enforcement of judgments;
- rules on disputes in respect of maintenance and the enforcement of maintenance; and
- rules on international child abduction.
All of these matters are governed by EU Regulations which will cease to apply – as between the UK and the EU – at the end of the transition period, bringing to an end the current system based on reciprocity and co-operation in family law matters between the UK and the rest of the EU.
The Scottish regulations
The Family Law Regulations are intended to plug the gap on matters covered by the EU Council Regulation known as Brussels IIa, which has dealt with jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters relating to parental responsibility.
The Family Law Regulations revoke Brussels IIa and amend domestic legislation to reflect the fact that the UK will no longer be an EU member state. For example, the regulations remove those changes to domestic legislation that were made in the past to ensure that these were in line with Brussels IIa.
Jurisdiction after Brexit
The rule that has applied throughout the EU is that in actions of divorce, separation or the nullity of marriage, jurisdiction is based on habitual residence – so actions could be raised in the court of the country in which at least one of the parties has their habitual residence. If there was a jurisdictional conflict the so-called lis pendens rule applied, which meant that the national court where the action was first raised had jurisdiction and would take priority over any subsequent action raised in a different member state – a simple and straightforward system.
At the end of the transition period the Family Law Regulations will amend the Domicile and Matrimonial Proceedings Act 1973, and the ground of jurisdiction in Scotland in actions for divorce, separation, declarator of nullity of marriage or declarator of marriage will be that either of the parties is:
- domiciled in Scotland on the day when the action has begun; or
- was habitually resident in Scotland throughout the period of one year ending with that date.
This restores the technical legal concept of domicile as an alternative ground of jurisdiction (which it had been before there was EU provision in this area). Other than when there are competing cross-border actions within the UK (the country where the couple last lived together as husband and wife prevails), where actions are raised in Scotland and in another EU state we revert to the “balance of convenience and fairness” test (Domicile and Matrimonial Proceedings Act 1973, sched 3), a much more subjective test with less certain outcomes than “first past the post”. This leads to the spectre of competing actions being raised in different jurisdictions on different grounds, with inevitable uncertainty and expense for couples whose lives are being lived across international (EU) borders.
Formalised same sex relationships after Brexit
Brussels IIa does not apply to formalised same sex relationships (civil partnership and same sex marriage). When they were formalised in Scotland, domestic provisions were made to mirror the EU Regulation. The Family Law Regulations ensure that family cases involving same sex relationships will continue to be treated in the same way as family cases involving opposite sex relationships. The regulations ensure that Scottish courts will have jurisdiction in actions for divorce, separation, or dissolution of same sex marriages or partnerships on the same basis as in opposite sex relationship cases.
Cross-border recognition and enforcement after Brexit
Brussels IIa provides for the automatic recognition of orders made in one member state by another member state without the need for further cumbersome procedure. Under the Withdrawal Agreement, cross-border recognition and enforcement continues until the end of the transition period.
After that, courts in Scotland will recognise divorces granted in EU member states in the same way as they currently recognise orders from non-EU countries. The rules are to be found in part II of the Family Law Act 1986, which implemented the 1970 Hague Convention on recognition of divorce and legal separations.
Unless a different arrangement is agreed with the EU, orders made in the EU will not automatically be capable of recognition and enforcement in Scotland. However, the 1986 Act already provides for the recognition of orders, involving a registration and application procedure. Orders in relation to children are recognised so long as the order was made by a court in the country of the child's habitual residence, whether or not that court has taken into account the child's views or given one or other party the opportunity to be heard (a factor currently required by article 23 of Brussels IIa and consistent with the Scottish approach to decisions relating to the welfare of children). Whether orders made in the Scotland will be recognised in the EU from January 2021 will depend upon the rules of international private law in any one of the EU27 states unless members of the 1970 Hague Convention.
Maintenance orders and enforcement after Brexit
In relation to maintenance orders, from January 2021 standalone maintenance applications can be raised in the place where the maintenance creditor is domiciled or habitually resident or as an ancillary to actions of status in the court with jurisdiction to hear those proceedings. A maintenance decision made in an EU member state before 31 December 2020 will be recognised in the UK after the transition period ends, under the existing EU maintenance regulations, if the application is received before 31 December 2020. After that date, the recognition and enforcement of maintenance orders from the EU will be governed by the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance (unless the state is Denmark, which is covered by the 1973 Hague Convention).
International child abduction after Brexit
The explanatory memorandum to the Family Law Regulations sets out the UK Government's intention to continue to rely on the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention provides valuable and effective remedies for parents whose children have been unlawfully abducted from the country of their habitual residence. While those remedies are reinforced by Brussels IIa, the only significant effect of our departure from the EU without a deal would be the loss of the “override” provision contained in article 11(8) of Brussels IIa.
The Family Law Regulations begin to prepare families for the consequences of our departure from the EU, but it will be some time before its impact on families whose lives are lived across the new boundaries of Europe is known.
Lisa Girdwood is a partner with Brodies LLP
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