Government Plans for Family Law in the Event of a No Deal Brexit

With Brexit negotiations still under way, the government released new plans this month (September 2018) that explain in detail any changes that may happen to Family Law and the judicial system in the unlikely event of the UK leaving the EU without a deal on 29^th March 2019.

Currently, as a part of the EU, England, Wales and Northern Ireland follow the Brussels IIA rules when addressing matters of divorce, child custody and international child abduction in the court. According to the new plans released by the government on the 13^th September, the Brussels IIA rules would be revoked in the case of a “no deal” Brexit. These changes may also affect the ‘Lis Pendens’ rules – within Family Law, Lis Pendens refers to the courts ability to cease divorce proceedings after an EU court has started the process of the case. Should the UK leave the EU without a deal, Lis Pendens rules would be repealed across England, Wales and Northern Ireland.

In the event of a no-deal Brexit on the 29^th March, Equivalent Hague Conventions are set to replace previous EU rules. The government’s plans, released in September, explain how the previous EU laws would change to Hague Conventions which currently focus on matters of parental responsibility, rules regarding abducted children, central authority cooperation and maintenance recognition and enforcement. Even in the event of a no deal Brexit, Hague Conventions such as the Recognition of Divorces and Legal Separations and the 1970 Conventions will remain international law and will therefore continue in the UK.

In the event of a no deal Brexit, the UK doesn’t plan to axe all previous EU laws. Some of the Civil Family Law conventions the UK government intend on keeping include the 1980 Hague Convention on the Civil Aspects of International Child and the 2007 Hague Convention whereby the government would formally re-join the EU in the event of a no deal Brexit. The UK government have explained within their new plans that any rules and conventions surrounding same sex marriages and civil partnerships will also be replaced with new and independent UK laws.

Come the 29^th March 2019, if you are in the middle of divorce or separation proceedings or any other family matters within a UK court, you should continue the process as normal and any case will be dealt with under independent UK rules opposed to EU rules. If you are going through an EU court however, it is suggested that you seek legal advice to determine any changes that may occur in your case as a result of Brexit negotiations.

The new plans released by the government have had both a positive and negative response – with some family law experts believing that a no deal Brexit will have a positive impact on the UK judicial system whilst some fear that new and independent rules will lead to an escalation of stresses and pressures within the court.

Kerry Smith is the Head of Family Law at K J Smith Solicitors, specialist family law solicitors in Reading that deal with a wide range of issues, including divorce, domestic violence, civil partnerships, and prenuptial agreements. Kerry has over 15 years experience in family law and is recommended by the Legal 500 guide to law firms in the UK.