‘No-Deal’ Brexit: what might happen for family law cases?

27 September, 2018
by: Cripps Pemberton Greenish

In the eventuality of the UK leaving without an agreement (‘No-Deal’ Brexit), the government has published a guide for civil cases and, in particular, family proceedings that involve EU countries.

The government has provided reassurance that from day 1 of Brexit (29 March 2019) the UK will be ready to deal with any possible scenario. In the current uncertainty surrounding the “deal”, it seems that planning and preparation is the best strategy to follow.

Currently, the UK implements two sets of EU regulations for family proceedings. These cover areas including divorce proceedings, parental responsibility , child abduction matters and spousal maintenance.

Those rules are based on the principle of reciprocity, which is crucial in understanding what is going to change in the eventuality of a ‘No-Deal’ Brexit. Reciprocity requires that anything which one EU member state offers to the citizens of another in terms of benefits, favours or penalties should be returned in kind. Currently, UK citizens benefit from certain EU rules in relation to family proceedings, both at home and in other EU countries, and we reciprocate in respect of EU citizens living in the UK.

However, with a ‘No-Deal’ Brexit, the UK may lose this privilege. The UK will be required to use domestic rules, many which need updating given the length of our membership in the EU. Any party to a cross-border family dispute would carefully need to consider the effect of these changes. We can provide advice on these issues if you have concerns.

Luckily, everything is not lost. The UK is part of many international conventions that are not based on reciprocity or on our membership of the EU. The Hague Conventions are a good example and will fill the gap in relation to parental responsibility, abduction of children and maintenance. The UK would then re-join any additional treaties of which we currently enjoy membership by virtue of the EU, and the government will propose legislation to fill the gap in relation to the existing divorce rules.

There is no doubt that we are currently in uncertain times. Our legal system is intrinsically linked to the EU by virtue of our 45 year membership. However, we are open for business as usual and are not phased by whatever outcome the current discussions in Brussels reach. Should you require any assistance in respect of your own circumstances, or in connection with this article, please do not hesitate to contact Claire Tollefson or Helen Fisher by email or phone to claire.tollefson@crippspg.co.uk/01892 506 191 or helen.fisher@crippspg.co.uk/01892 506 258.