Family Law Hub

Brussels IIa will be repealed in the event of no deal Brexit

Technical notice covering civil legal cases that involve EU countries says UK will fall back on rules that it adopts with non-EU countries

  • Further details on what will happen concerning divorce jurisdiction disputes and other matters involving EU nationals have been outlined in one of the Government's technical notices explaining the position in the event that the UK leaves the EU without a transitional agreement.

    The notice, Handling civil legal cases that involve EU countries if there's no Brexit deal states broadly that, as a result of loss of the reciprocity that will inevitably ensue, the UK government would "repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries."

    In family law specifically the paper points out that the UK is a contracting member state to many Hague Conventions, including those governing

    • parental responsibility matters, including jurisdiction, recognition and enforcement
    • rules for the return of abducted or wrongfully retained children
    • maintenance recognition and enforcement
    • central authority cooperation

    In the event of no deal the UK would revert to using the rules in the relevant Convention (with some exceptions explained in the notice).

    As for BIIA, which underpins divorce jurisdiction in most UK cases the position would be as follows (and as set out in the notice):

    "Currently divorce jurisdiction in UK is primarily based on the Brussels IIa rules for all cases. An additional basis for jurisdiction, the sole domicile of either party to the marriage, is only available as a basis of jurisdiction if no other EU court has jurisdiction.

    In England, Wales and Northern Ireland we would repeal the Brussels IIa rules. The different bases for divorce jurisdiction set out in Article 3 of Brussels IIa (save for joint application which is not applicable) would be replicated in English, Welsh and Northern Irish domestic law so that these bases apply for England, Wales and Northern Ireland for all cases. The additional basis of sole domicile of either party, would be available for all cases. The Scottish Government is considering the best approach for Scotland in the area of divorce jurisdiction.

    The EU 'lis pendens' rules which require courts to halt divorce proceedings if an EU court has already begun to consider the case, would be repealed for all parts of the UK as they would not be reciprocated by the EU courts. Instead the courts in each UK jurisdiction would decide which is the most appropriate court to hear a case, as they currently do for cases outside the scope of Brussels IIa."

    How these changes would effect cases going straddling Brexit day is unclear. While it is hoped that such cases will proceed under the current rules the Government can not guarantee that the EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. 

    The full notice can be read on the GOV.UK website here

News, published: 14/09/2018

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Published: 14/09/2018

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