BREXIT
Things to remember post-Brexit in Family Law proceedings in the UK F
ollowing Brexit many family lawyers will be advising their clients, especially international clients, on the effect of Brexit on family proceedings within the justice system in the UK and what laws apply and do not apply but more importantly what laws have changed. As of 31 January 2021, the UK ceased to be an EU Member State and is no longer involved in the governmental structures and decision making within the EU. There are pros and cons to this, despite what side you are on! However, this has a colossal impact on UK law. Since the UK’s admission into the European Economic Community (as it was then) in 1973, many of our legal decisions have been influenced by EU law and it has been incorporated into our work, lifestyle and free movement. The Law The EU Maintenance Regulation and Brussels IIA, which governs jurisdiction, enforcement and recognition in maintenance, divorce and Children Act cases has ceased to apply. The transition period ended on 31 December 2020. Reciprocal recognition of divorce - Divorce, legal separation and marriage annulment under Article 3(1) Brussels IIA, were automatically recognised in EU states and vice versa. Now, the EU states have more scope to decline and not recognise a divorce in the EU in line with the UK.
but this will require the EU’s signatory, Demark, Iceland, Norway and Switzerland would also need to give their consent. The EU has so far not provided its consent to the UK membership of the Convention. Even if consent is given, there will be some time before the UK can become a member of the Lugano Convention, as UK legislation needs to be readjusted before joining. A divorce judgement which took effect before the end of the transition period will not lose its validity. There have already been severe delays in the family courts, along with increased applications being lodged and the effect of COVID-19 has added more interruptions. The President of the Family Division, Sir Andrew McFarlane, published ‘The Road Ahead’ for the Family Court in England and Wales. Sir Andrew commented, “The reality to be faced is that the Family Court must now seek to achieve the fair, just and timely determination of a high volume of cases...” According to Resolution, a community of family justice professionals, this is the biggest change to international family law for 20 years. ■
Lotus Kimona
LPC MSc Graduate The University of Law, London
Recognition and enforcement of maintenance orders – The 2007 Hague Convention on International Recovery of Child Support and Family Maintenance governs enforcement of English maintenance orders in EU states. The Convention pays attention to many practical matters affecting the efficiency with the pursual of international claims e.g., language, standard forms and exchange of information on national laws. Child abduction proceedings – Brussels II gives a continuing jurisdiction for the state from which the child was taken to deal with the matter. Going forward, the 1980 Hague Convention on the Civil Aspects of International Child Abduction now applies. This Convention has contributed to settling thousands of abduction cases, whilst serving as a deterrent to many others through the clarity of its message; abduction is harmful to children who have the right to have contact with both parents and through its simplicity of its central remedy – the return order. The 1980 Hague Convention can be viewed as one of the most successful family law instruments to be completed under the backing of the Hague Conference on Private International Law. Where legal aid is available under Brussels IIA, this is not the case under the 1996 Hague Convention, for recognition and enforcement orders. Unfortunately, this has been left unresolved. What now? According to the official document presented to the UK Prime Minister about the future relationship with the EU, the UK proposed continuing to work together with the EU through multilateral precedents set by the Hague Convention on Private International Law. The UK applied in April 2020 to be an independent contracting party of the Lugano Convention 2007, 14 | CENTRAL LONDON LAWYER
Lotus Kimona
