Although the UK and the EU have agreed on a Brexit extension, a no-deal exit on 12 April remains a possibility. A no-deal Brexit is expected to have significant impact on all areas of life, including family law.
The areas of family law which will be most affected by the UK’s withdrawal from the EU are those that involve a cross-border element, for example: jurisdiction, cross-border recognition and enforcement of judgements, and rules on international child abduction.
All of these issues are governed by EU law. They are potentially impacted in significant ways by Brexit and by whether or not the UK leaves the EU with the Withdrawal Agreement in place or not. In the event of a no-deal Brexit, EU law will no longer apply directly in and to the UK. As a result, the current system based on reciprocity and co-operation in family law matters between the UK and the rest of the EU will cease to apply.
The European Union (Withdrawal) Act 2018 provides for EU law to be ‘converted’ into domestic law in the UK to ensure legal continuity at the point of our withdrawal from the EU. However it is well understood that this conversion process cannot simply be a ‘cut and paste’ exercise: some changes will need to be made to EU law to enable it to work properly.
The Scottish Government has recently produced Regulations on the post-Brexit future of family law in Scotland, and has laid the draft Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019. These Regulations are intended to ensure that Scottish family law remains operational after Brexit, even in a no-deal scenario.