Whilst the decision to separate can be a long time coming for many couples, there can be few separations which have been more eventful than the UK's anticipated exit from the EU. The continuing uncertainty as to the outcome of the Brexit process brings with it acute uncertainty for many of the families who seek our advice on family law issues.

The Scottish Government has recently produced Regulations on the post-Brexit future of family law in Scotland, and has laid the draft Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (the "Family Law Regulations").

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 _ determining the country which will hear an application for divorce or an application for parental rights or the regulation of the care of children;
  • cross-border recognition and enforcement of judgements;
  • rules on disputes in respect of maintenance and the enforcement of maintenance; and
  • rules on international child abduction.

All of these issues are governed by EU law. They are potentially impacted in significant ways by Brexit and by whether or not the UK leaves the EU with the Withdrawal Agreement in place or not. In the event of a "no deal" Brexit, this EU law will no longer apply directly in and to the UK. As a result, the current system based on reciprocity and co-operation in family law matters between the UK and the rest of the EU will cease to apply.

The Scottish Regulations

The European Union (Withdrawal) Act 2018 provides for EU law to be 'converted' into domestic law in the UK to ensure legal continuity at the point of our withdrawal from the EU. However it is well understood that this conversion process cannot simply be a 'cut and paste' exercise: some changes will need to be made to EU law to enable it to work properly.

The Family Law Regulations will come into force on 'exit day' and address deficiencies in EU law that is "retained" by the Withdrawal Act and devolved to Scotland, preparing the Scottish rule book for a no-deal scenario. The Regulations contain provisions on matters covered by the EU Council Regulation known as Brussels II(a), which governs jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters relating to parental responsibility. The matters covered by Brussels II(a) are devolved to Holyrood.

The Family Law Regulations revoke Brussels IIa and amend domestic legislation, primary and secondary, 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 made in the past ensure to that these were in line with Brussels IIa.

Jurisdiction after Brexit

The common jurisdictional rule throughout the EU member states is that in actions of divorce, separation or the nullity of marriage, jurisdiction is based on habitual residence. The so called lis pendens rule applies, which means that the national court where such an action is first raised has jurisdiction and will take priority over any subsequent action raised in a different member state. Under the Withdrawal Agreement habitual residence will remain the common ground of jurisdiction until the end of the transition period. In the event of a no-deal exit, the Family Law Regulations amend the Domicile and Matrimonial Proceedings Act 1973: the ground of Scottish jurisdiction in an action for divorce, separation, declarator of nullity of marriage or declarator of marriage will be that either of the parties is:

  1. domiciled in Scotland on the day when the action has begun; or
  2. was habitually resident in Scotland throughout the period of one year ending with that date.

And so we are back to having domicile as an alternative ground of jurisdiction. The possibility of different actions being raised in different jurisdictions on different grounds has the potential to lead to uncertainty and expense for couple whose lives are lived across international (EU) borders.

Formalised same sex relationships after Brexit

Brussels II(a) does not apply to formalised same sex relationships and when same sex relationships were formalised in Scotland (civil partnership and same sex marriage) 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. For example, the Regulations will ensure that Scottish courts will have jurisdiction in an action for divorce, separation, or dissolution of the same sex marriage or partnership under the same conditions as in opposite sex relationship cases.

Cross-border recognition and enforcement after Brexit

Brussels II(a) 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 will continue until the end of the transition period. A no-deal Brexit would mean that orders made outside of the UK will not automatically be capable of recognition and enforcement in Scotland. However, the Family Law Act 1986 already provides for the recognition of orders, involving a registration and application procedure, for proceedings for which Brussels II(a) does not apply (proceedings not involving EU member states).

Orders in relation to children are recognised provided the order was made by a court in the country of the child's habitual residence. But there is no consideration given as to whether or not such a court has taken into account the child's views or given one or other party the opportunity to be heard which is currently required by Article 23 of Brussels II(a) and is consistent with the Scottish approach to decisions relating to the welfare of children.

In relation to maintenance orders and agreements, EU law currently provides rules for their recognition and enforcement of maintenance in other EU member states. The EU law will cease to apply in and to the UK on exit day: the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 will repeal relevant EU legislation and amend relating domestic legislation accordingly. In addition, the UK Government has signed and ratified the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance which will apply in and to the UK in the event of no deal.

International Child Abduction after Brexit

The explanatory memorandum to the Family Law Regulations sets out the Government's intention to rely on the 1980 Hague Convention on the Civil Aspects of International Child Abduction in the event of a no-deal Brexit. The Hague convention provides valuable and effective remedies for parents whose children have been unlawfully abducted from the country of their habitual residence. Whilst those remedies are reinforced by Brussels II(a), 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 II(a).

If you have any questions relating to the above, please get in touch with Lisa Girdwood or your usual Brodies contact.

Visit our Brexit Hub for regular updates on Brexit related issues.