As you are aware from the news, the issue with Brexit is still a very live issue. Over a year ago, the House of Lords European Union Committee said they were not convinced that the government had a “coherent or workable plan to address the significant problems that will arise in the UK’s family law legal system post-Brexit, if alternative arrangements are not put in place”. This still remains the case and there is no clarity as to the effect Brexit will have on divorce and family law. How does this effect the 3.8 million EU citizens living in the UK and the 1.3 million UK citizens living in the EU?
In relation to divorce issues pre-Brexit, a couple who are citizens of one EU member state but the other is living in another EU member state can of course divorce, but it depends on whoever files first as to which court & country will have jurisdiction for their divorce.
Post-Brexit, it is considered that the EU instruments are replicated in their own law and would mean that the effect of Brussels II would continue or EU instruments are replicated in our own law, which would mean that we would have to recognise a decision that a divorce is to take place in the country that brought it. It may not be the country of one party.
The consequences of any of the options is that in a no-deal Brexit, cross jurisdictional EU divorces are most likely going to involve costly and lengthy disputes over which court has jurisdiction.
If your divorce is already started and involves another EU member the government has said that this should continue, but after Brexit there is no guarantee that the other EU Member state will comply with this proposal.
In relation to Children and child abduction cases, Brussels II regulates the rules of jurisdiction for parental responsibility, child protection and child abduction with the EU. It has provided predictability in international children cases and, in child abduction cases, a framework to ensure the child’s swift return, for many years.
In child protection cases, Brussels II provides mechanisms for the exercise of limited protective measures and the effective transfer of substantive jurisdiction from one Member State to another. If a No-Deal Brexit happens, the Government proposes that we simply rely on other treaties. The Conventions are similar although they do not provide identical protection to Brussels IIA, so we will see gaps in the law and parties will lose the ability to ensure that orders relating to matters of parental responsibility, either in the United Kingdom, or another EU Member State are capable of automatic recognition without the further need to apply for “Mirror Orders.”
There is also a concern that child abduction cases will not be dealt with as swiftly as currently required under Brussels IIA. In a No-Deal Brexit, the uncertainty in the law may cause EU related custody disputes and child abduction cases to be highly complex and costly legal battles.
If you are on a low income and do not qualify for legal aid due to the domestic abuse criteria, BTMK offer a fixed fee scheme or reduced rate to assist you. Please contact Charlotte Fedarb on 01702 238532 to obtain information about our rates.
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