The long running debate on what form the post-Brexit relationship between the UK and EU will take reached a new stage recently with the publication of the UK Government's White Paper on "The future relationship between the United Kingdom and the European Union". The paper is intended as a blueprint for further negotiations with Brussels, though the reception it has received both domestically and in the EU suggests that any final deal will almost certainly be different from the content of the White Paper. However, the degree of continued harmonisation with the EU that is set out in the paper is probably now the minimum that can be expected from any deal.
The Brexit White Paper is unsurprisingly clear in setting out the Government's commitment to the ending of the free movement of people (see our recent update on the proposed "mobility framework"). Free movement will be lost to UK citizens with regard to the EU and similarly EU citizens will no longer have the right to move freely into the UK.
So what does that mean for the many families whose relationships are "international"; whose homes, lives and occupations cross European borders?
Family relationships during the transition period
There is an agreement in principle between the EU and the UK in relation to the UK's withdrawal from the EU, which provides for a transition period between 29 March 2019 and 31 December 2020. The draft Withdrawal Agreement provides protection for married couples and civil partners but less protection for cohabitants (for more details see our recent update). The key aspects of the proposed transition arrangements for family life are:
- UK and EU citizens living in the UK or the EU on 31 December 2020 can apply for 'settled status' after five years of continuous residence, whether that period is completed before or after 31 December 2020. This means that an EU partner of a UK citizen living in the UK would have a personal right to remain irrespective of marital status. The same applies to the UK partner of an EU citizen living in the EU.
- UK citizens with a spouse, civil partner, parent or child not currently living in the UK have the right to bring that person (irrespective of their nationality) to the UK. Under the Withdrawal Agreement the same rule would apply to UK citizens living in other EU Member States: they will have the right to bring their spouse, civil partner, parent or child (again, irrespective of their nationality) to the EU Member State in which they are living on 31 December 2020.
- However, there will be no automatic right for cohabitants to join their partner due to the definition of "family member" in the Withdrawal Agreement, which is a "spouse or registered civil partner, parent or child". A cohabitant can still join their partner, but would be required to prove that the relationship is durable and existed before the end of the transition period. Cohabitants would therefore face a much more bureaucratic process.
Family relationships in the Brexit White Paper
The White Paper sets out the UK Government's post-Brexit vision. That vision brings an end to the free movement of people but plans to ensure that the UK will continue to be an "open and tolerant nation". The UK Government, while seeking to take back control of UK borders and reduce migration, intends to seek reciprocal mobility arrangements with the EU "in an appropriate framework for mobility in line with arrangements that the UK might want to offer to other close trading partners in the future".
The Brexit White Paper does not alter the situation described above as it reflects only one side to Brexit negotiations. As set out in the draft Withdrawal Agreement, and subject to any agreements to the contrary, married couples or those in a registered partnership will be treated differently to non-formalised relationships as of 31 December 2020.
A wider family law perspective on Brexit
The Brexit White Paper reiterates the UK Government's intention to keep close links with the EU on civil judicial cooperation because "civil judicial co-operation is mutually beneficial to both the UK and the EU". This applies in particular to cooperation in family law matters: "cross border families benefit from clear rules to resolve disputes in sensitive matters quickly and efficiently. The future relationship between the UK and the EU should protect those advantages".
Currently, a number of areas of family law are governed by EU law and will be impacted by Brexit. These include:
- determining the country which will hear an application for divorce or an application for parental rights or regulating the care of children;
- the recognition and enforcement of UK judgements in other EU Member States, and vice versa;
- the timeframe for dealing with child abduction cases in Member State courts; and
- rules on dispute and enforcement in relation to maintenance.
EU law provides for simple, straightforward and efficient rules to resolve conflicts where the courts of two different EU Member States have jurisdiction. This includes rules enabling couples to agree where any future maintenance dispute would be heard, even before separation is contemplated, providing certainty and autonomy. Maintenance orders can be enforced throughout the EU, allowing an individual to obtain a maintenance order in one Member State and enforce it easily in another. In cases of international child abduction EU law implements relevant international law (such as the Hague Convention on international child abduction), including by imposing strict time limits for the return of children to the country of their habitual residence in the event of them having been abducted.
The Brexit White Paper suggests the UK Government is committed to establishing new bilateral agreements that replicate the certainty and clarity EU (including UK) citizens currently have in the area of family law. Without such bilateral agreements, Brexit could result in complex barriers to enforcement, significant delays and costly litigation in cross-border family matters. As for family relationships, cohabiting couples in the UK or EU should be aware that only by marrying or registering a civil partnership will their rights definitely be protected under the draft Withdrawal Agreement.