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With the official Brexit date looming upon us the subject continues to dominate our media, stirring up countless debates over its potential outcomes. After months of painful negotiations, the government has finally presented us with the final draft of the divorce agreement (formally known as the Withdrawal Agreement) which provides the terms of the UK’s smooth and orderly exit from the EU.
The Withdrawal Agreement talks about an implementation period which is due to begin on 29 March 2019 and is meant to last until 31 December 2020. During the transition period the UK will need to abide by all EU rules but will lose membership of its institutions. With regards to laws and disputes the UK will remain under European Court of Justice (ECJ) jurisdiction.
Statistically, there are around 140,000 international divorces and 1,800 cases of child abduction in the EU each year. With around one million British citizens living in other EU member states and some three million EU citizens living in the UK, Brexit will no doubt have an impact on the UK families who have international connections.
For a marriage to be dissolved in the UK the Court must have the right to decide the case as opposed to another country. This is currently determined in accordance with an EU regulation. The effect of this regulation gives individuals who have links with numerous countries within he EU the option to start divorce proceedings in the country of their preference.
Often people choose other countries as they think this will give them a better outcome. Prior to Brexit the court which first received the divorce papers would be able to continue with the case. This would often propel the parties to “race” to start proceedings in the country that they think will be more sympathetic to them, even if the parties are more closely connected to another European member state.
After Brexit, however, if one spouse starts a divorce petition in another EU country, even after a divorce has been started in the UK, this will not guarantee that the divorce will be decided here. This could lead to injustice for some families who have built their lives for example in the UK, but have to have their divorce proceedings heard in a nation that they no longer have any connections to. They could also face a lengthy and costly jurisdiction battle.
EU family law has had a significant and valuable impact until now on the day-to-day life of British and other families both at home and across the EU. The moment Brexit comes fully into effect all the EU family law provisions will no longer apply in the UK.
There is a strong mutual consensus across leading specialist family law practitioner groups in the UK that the best option going forward would be for our government to replicate the EU laws into our domestic law, and to ensure that the reciprocal arrangement between the UK and the other EU countries is maintained. This would hopefully allow our family law system to be preserved and keep families out of legal limbo in the face of Brexit.