The family law legal system in the UK has increasingly become an international one - over the last few years alone we have seen an increase in cases involving international family law issues and cross-border disputes.
It is now not unusual for families to live in different countries and/or own properties abroad alongside multinational businesses. There are also many children that are part of families who frequently travel between, and live in, more than one country.
So how will Brexit affect the global nature of the way in which many families live and work? We highlight some of the key areas where Brexit is likely to have an impact.
Will Brexit affect my divorce?
The pre-Brexit situation
The question of which country a divorce may be issued in was governed by a Council Regulation called Brussels II. This meant that there was often a race to the court under what is known as the lis pendens rule. This is a rule that the first party to issue proceedings at court, secures the jurisdiction of the court in that particular country. Urgent advice and action was often needed to find out the best place for proceedings and then to issue quickly.
Divorces issued on or before 31 December 2020 will continue to follow these rules and the divorce will be recognised according to the Brussels II regulation.
Divorce after Brexit
The lis pendens rule is now replaced by a forum conveniens rule, which previously applied to all other non-EU countries. This essentially means that a court may decline to deal with a divorce if it appears more appropriate or convenient for a different country to deal with it. It is anticipated that this may well lead to more protracted and costly disputes regarding which EU country should issue the divorce if the parties cannot agree.
Another area which has been impacted by the Brexit deal is the jurisdictional grounds to bring a divorce. A petitioner can only start divorce proceedings in England and Wales if the English court has jurisdiction to deal with those proceedings. The removal of Brussels II has now changed the definition of the jurisdiction in the divorce petition and these discreet technical points may well have a big impact on future divorce applications.
The impact of Brexit on children law
The pre-Brexit situation
The Brussels II regulation also provided consistency in international family law disputes e.g. by recognising parental responsibility across EU member states and regulating the rules around child protection and child abduction in the EU.
How have things changed after Brexit?
It remains to be seen how this will impact on future international children disputes. What we can say it that it is likely to lead to more cross-border disputes which could potentially be very complicated.
Parenting through a divorce or separation is not easy, regardless of jurisdiction. Read more about how we can guide you through the process and ensure the welfare of your children remain the top priority.
In addition to the above, there are many other changes within family law including areas such as maintenance agreements. As with all legal matters, however, our experience has shown that costs can be reduced and litigation less protracted if legal advice is sought at an early stage.
No doubt we will find in the coming months that there are likely to be some cases that fall through the cracks, as there will undoubtedly be some gaps in the law that the Brexit deal has not covered. Therefore the true impact of Brexit on divorce and family law still remains to be seen.
We continue to monitor the key updates and our team of family lawyers are on hand to advise you with any international family law query that you may have.
How we can support you
We have wide experience of all types of jurisdiction cases and regularly work alongside lawyers in other countries to secure the best outcome for you and your family. For advice and support contact Monica Ghai or complete our enquiry form and we’ll call you back to arrange a free, 20 minutes no-obligation confidential consultation at a time to suit you.
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