As the prospect of a no-deal Brexit still looms large, the Scottish Government has published guidance on the future of cross-border family law cases in Scotland should the UK leave the EU without a deal.

The guidance for legal professionals on cross-EU border family law disputes covers those areas of family law that will be most affected by a no-deal exit. These include:

• Divorce (in particular jurisdiction and recognition of EU divorce orders);

• Maintenance claims;

• International parental child abduction; and

• Cases concerning children (including residence and contact).

Divorce after Brexit

Jurisdiction

If we leave the EU on exit day without a deal, one of the main issues will be to determine which country will hear applications for divorce and the dissolution of civil partnerships.

Jurisdiction in actions for divorce and dissolution are currently based on the habitual residence of one of the parties (EU Regulation on jurisdiction in matrimonial matters, commonly referred to as Brussels IIA).

In addition, the so-called lis pendens rule regulates what happens when competing actions are raised in different EU Member States: the EU Member State in which an action was first raised has jurisdiction and takes priority over any subsequent action raised in a different member state.

If a divorce action is raised in Scotland prior to exit day then the relevant EU Regulation Brussels IIA will apply. However, if the action is raised after exit day then Brussels IIA will not apply (and neither will the lis pendes rule) and we will revert to the Domicile and Matrimonial Proceedings Act 1973.

The 1973 Act will, on exit day, be amended by the Jurisdiction and Judgements (Family Civil Partnership and Marriage) (Same Sex Couples) (EU Exit) (Scotland) (Amendment etc) Regulations 2019 which bases jurisdiction on domicile or habitual residence.

Where couples have lived in different EU Member States during their relationship, competing actions may be raised in separate countries based on different grounds of jurisdiction - leading to potential delay and uncertainty in having UK-EU matters resolved.

In the event that no other court has jurisdiction then, provided the parties entered into their relationship in Scotland, the Scottish court may assume jurisdiction if it appears to be in the interests of justice to do so.

Recognition of Orders

In the event of a no-deal exit, the courts in Scotland will recognise divorces granted in EU Member States in the same way as they currently do for orders from non EU countries, i.e. in accordance with the Family Law Act 1986 which provides for the recognition of orders, involving a registration and application procedure.

Divorces granted in Scotland prior to exit day will be recognised in the EU in accordance with the rules of EU private international law. A European Commission guidance notice to EU Member States provides that, if a case is ongoing at the point of exit then a declaration of enforceability must be issued before exit day.

If the case commences after exit day or a declaration of enforceability has not yet been issued then recognition of Scottish divorce decrees will be governed by the law of each Member State. In that event parties should seek local advice if enforcement of a Scottish divorce in another EU country is required after exit day.

Maintenance claims after Brexit

Another matter of importance in cross-border family law cases is that of maintenance. Currently the EU Maintenance Regulation governs the enforcement of maintenance throughout the EU and provides a relatively simple and effective method of enforcing maintenance orders. This set of rules will be revoked on exit day.

Enforcement of EU Maintenance Orders in Scotland

If a maintenance case has started in an EU Member State before exit day it will continue under the same maintenance rules. If a maintenance decision was made in an EU Member State before exit day, as long as the application for recognition of the order is received before exit day, it can be enforced in the Scottish Courts.

After exit day, EU Maintenance decisions will be enforceable in Scotland under the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (which all EU Member States are party to except Denmark).

The 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations will continue to operate between the UK and Denmark.

Enforcement of Scottish Maintenance Orders in EU

If a maintenance case is ongoing on exit day, the European Commission has issued guidance to EU Member States providing that a UK maintenance decision must have a declaration of enforceability before exit day for it to be enforced after Brexit.

It is unclear at present whether or not maintenance decisions from the UK which, by exit day, have been recognised in an EU Member State but which have not yet obtained a declaration of enforceability, will be able to continue to enforcement under the 2007 Hague Convention. It might well be that parties will need to submit a separate declaration under the Convention after Brexit.

For cases raised after exit day it seems likely that the applicable Hague Conventions will be used by all Member States.

Choice of Court Agreement

When parties have opted for a choice of court provision, Scotland will continue to recognise these agreements even if they are made after exit day. It is not clear at present whether the courts of EU Member States will do the same.

International Parental Child Abduction after Brexit

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is not an EU instrument but rather an international convention and therefore will not in itself be affected by Brexit. All EU Member States are signatories to the Hague Convention.

The main concern post-Brexit is that the provisions contained within Brussels IIA, which supplement the Convention, will be lost after exit day.

Crucially, this will affect (1) the override provision contained in Article 11(8) which allows an application for return to be considered in the EU Member State court notwithstanding the fact a return order was refused under the Hague Convention and (2) Article 11(3) which imposes a strict time limit of six weeks between the inception of a child abduction case and the court decision.

This issue has not been addressed in the guidelines issued by the Scottish Government and remains a great concern for practitioners and families involved in Hague Convention proceedings involving EU countries.

Cases concerning children after Brexit

Orders for Parental Responsibility in cross-border UK-EU cases include residence and contact matters.

Cases which began before exit day will continue under the current rules. If an order is made in an EU Member State and received in Scotland before exit day then it will be enforceable as before in Scotland and the EU.

After exit day the current provisions for jurisdictions (Brussels IIA) will no longer apply and when deciding where to hear UK-EU cases, the courts in Scotland will decide if it has jurisdiction to hear a case in accordance with the rules of 1996 Hague Convention on Parental Responsibility and Protection of Children. Future judgements from the EU will also be enforced in accordance with the 1996 Hague Convention.

The development of Scots family law has for many years been governed and influenced by EU law and enhanced by the cooperation and reciprocity which has existed between EU Member States. A no-deal Brexit will have far reaching consequences for many families in Scotland and beyond.