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How will a ‘no deal’ scenario affect divorce and child law jurisdiction after Brexit?

Associate Lottie Tyler looks at how Brexit might impact family law following new government paper..

On 13 September the government published a technical notice entitled: Handling civil legal cases that involve EU countries if there’s no Brexit deal. The notice had been long awaited by family practitioners, as matters that are fundamental to family law, such as parental responsibility and whether the country has jurisdiction to deal with divorce or children, is currently enshrined in EU law.

The notice anticipates that in a ‘no deal’ scenario the UK would repeal ‘most of the existing civil judicial cooperation rules’ and apply the existing legislation for dealing with non EU countries to cases involving EU member states. Specifically for family law this means that:

  • where a matter is covered by the Hague Conventions to which the UK is a signatory; the abduction or wrongful retention of children, parental responsibility and the recognition and enforcement of orders concerning both child arrangements and child maintenance, then the UK would revert to the rules set out in the  Hague Conventions  (NB with some exceptions);
  • the current jurisdiction criteria for commencing divorce proceedings would be repealed but replaced (save in Scotland where the approach is still being considered) by identical provisions save that there will be no reference to parties being able to jointly bring divorce proceedings and there will be the additional criteria that the divorce can be brought on the basis of the domicile of one party (an option which already exists in domestic law in addition to the EU law criteria).

The new legislation would not include the ‘first past the post’ rule in the EU legislation which requires the court of a member state seised second in time to stay their proceedings pending the outcome in the first court seised. The reason for removing this provision is that there would no longer be a requirement for any member state to apply this rule to a divorce commenced in the UK. The UK court would instead use the legal test of ‘forum conveniens’ which it applies in non EU international cases and essentially requires a determination as to which jurisdiction is the most appropriate venue to deal with the issues and assets arising in a case.

The provisions appear sensible in their simplicity in a scenario that would inevitably be fraught with other legislative change and uncertainty. There is, however, extensive debate regarding the merits of the ‘forum conveniens’  approach to jurisdiction versus the more cost effective  ‘first past the post’ approach and whether this will benefit couples engaged in contentious proceedings. In a no deal scenario family lawyers will need to be refreshing their knowledge of forum conveniens case law and the provisions of the Hague Conventions.

Lottie Tyler is an Associate in the Family law team at national law firm Weightmans LLP: