Boris, Brussels and Brexit 2.0 – Potential Impacts of a No-Deal Brexit for Divorce & Family Law

Following a set of breakneck negotiations yesterday in Brussels, the PM has struck a new Brexit deal for the UK.

All attention will therefore turn to Westminster tomorrow to see if the Prime Minister can secure the necessary 320 or so votes that he needs in order to get his deal across the line. Numerous commentators over the past 24 hours have been looking at the numbers, but currently there is no consensus as to whether the Prime Minister can win - with many MP’s still keeping their cards close to their chest.

If MPs reject the deal in the House of Commons tomorrow, then a real possibility remains that the UK could leave the EU without a deal on 31 October. This article seeks to set out what impact a No-Deal Brexit may have on Divorce and Family Law.

To date the Government has produced two papers setting out the possibilities available in the event of a No-Deal Brexit, which the Family Law Bar Association, International Academy of Matrimonial Lawyers and Resolution have responded to. Last year the Government also produced a Technical Notice setting out what is likely to happen in the event of a No-Deal Brexit.

Despite the above guidance having been produced, there is still no clarity as to which legislative agenda will be implemented. What is clear however is that there are a number of options available. These are as follows:

1. The EU instruments are replicated in our own law with reciprocity from the EU (i.e. a status quo would be maintained).
2. The EU instruments are replicated in the UK, but with no reciprocity from the EU. The effect of this would mean that the UK would be bound to recognise a decision by an EU Court, but they would not have to recognise such a decision by a UK Court. This option is widely opposed by many family law commentators.
3. A bespoke arrangement is negotiated; or
4. The EU instruments are repealed, including the “Lis Pendens” rule which would mean that the UK reverts back to the pre EU “forum conveniens” rules which are currently in operation with all other non EU countries. This last option appears to be the most likely outcome in the event of a No-Deal Brexit.

In child abduction cases, the UK’s participation in the 1980 Hague Convention means that most of the measures currently in operation within EU countries would not change.

However, one change that may occur within the context of a No-Deal would be the repeal of the “Lis Pendens” rule. This rule currently requires Courts to halt divorce proceedings if an EU Court has already begun to consider the case. Instead, Family Courts within the UK would have to decide what is the most appropriate Court to hear the case - as they do currently for non EU cases.

The above changes would also be replicated for same sex marriages and civil partnerships within the UK.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.