Most seem to agree that it will be of mutual benefit to the United Kingdom (UK) and the European Union (EU) to reach a negotiated exit agreement, but while this remains under consideration we must prepare for a scenario where the UK leaves the EU without an agreement. Although the likelihood of this is low, a plan of action will need to be sped up the closer we get to March 2019 in case this plan will need to be relied on.
At present the UK uses a variety of EU civil judicial instruments and international agreements in order to deal with civil disputes, including family law. These agreements provide guidance on which countries’ court will have:
- Be able to apply their own laws;
- If or how any judgements are recognised or enforced; and
- How to address procedural issues such as obtaining and using evidence from one country for proceedings in another.
The UK also uses domestic statutes for dealing with similar matters concerning the legal co operation of non EU member states.
Post March 2019, if there is still no agreement, the UK will have to repeal EU rules and rely on domestic statute, which provides no guarantee of legal co operation from the EU.
There are, of course, some EU agreements and legal instruments that will continue to apply post Brexit. This will be because these agreements formed the basis of our domestic law, reciprocity is not required to benefit from them or if we are party to these international agreements in our own right- such as the Hague Conventions.
In the event of no agreement the most significant EU instrument that will be repealed will be Brussels Ia (1215/2012). This aids the decision of which jurisdiction will hear a case as well as the recognition and enforcement of judgments where multiple EU member states are involved in proceedings. In this scenario the UK will have to revert to domestic statute which is currently used for matters involving other countries outside of the EU. However, there are potential difficulties with this approach as these other countries may not agree to recognise UK judgements.
There are some EU legal instruments that do not require reciprocity, such as Rome I (593/2008) and Rome II (864/2007) that address which countries’ law should apply to a legal dispute. As reciprocity is not needed the UK can still apply this.
There are other legal agreements which require membership in order to mutually benefit from its framework. At present the UK is a member of the 2005 Hague convention on choice of court agreement due to being an EU member state. However, if we leave the EU we can apply to remain a member in our own right in order to continue being able to apply it.
There are some corresponding Hague conventions that provide alternatives to EU rules. Within family law there is legal cooperation between EU member states on jurisdiction and the recognition and enforcement of judgments for matrimonial, parental responsibility, abduction and maintenance matters due to Brussels IIa (2201/2003) and the Maintenance Regulation (4/2009). If the UK is forced to repeal these regulations we will continue to use the various Hague Conventions that UK is a separate member of as some provide alternatives to rules within Brussels IIa and the Maintenance Regulation. Some Hague Conventions that we are a signatory to have been implemented into domestic law (for eg the Hague Convention on divorce recognition was included in the Family law act 1986 in order to establish rules on recognising overseas divorces).
In respect of child abduction matters, again the UK would have to repeal the relevant section of Brussels IIa that allows the ability for an EU court to override another court’s ruling to not return a child. However, as we are a member in our own right to 1980 Hague Convention a level of legal cooperation with most EU states with continue.
Where there is no alternative to EU rules through a Hague Convention the UK will still have to repeal the respective EU regulations. However, the UK can take steps to replicate specific provisions into domestic law. For example the jurisdiction for a divorce is currently set out in article 3 Brussels IIa requiring one member state to halt proceedings if another EU court has begun to consider the case. After repealing the UK would simply consider which country is best placed to deal with the matter- as the UK already does for countries that are not party to Brussels IIa.
So where does that leave us? Well any family cases set to conclude on 29 March 2019 or progressing after this date may need to seek legal advice about how their matters will be affected. If a case is set to conclude on ‘exit day’ the EU rules are thought to still apply, but without an assured agreement it is unknown whether other EU states will recognise any judgements made on or after that day.