Family Law

• The UK will not be a party to any EU family laws after December 2020, whether a bespoke family law agreement or any other UK/EU arrangement 
• Brussels II and Maintenance Regulation will then come to an end
  
• The replacement, substitute, will be UK national law or international laws such as Hague Conventions
  
• Only remaining uncertainties concern EU wide divorce recognition under the 1970 Hague Convention and maintenance orders under the Lugano Convention
  
• There is no change until the end of December 2020 in existing law or procedures
  

In my note of 31 January 2020, I set out the position which will apply throughout 2020 and went on to describe what was anticipated by way of possible negotiations with the EU to lead perhaps to some sort of bespoke agreement, implemented before the end of 2020 and take effect from 2021.  That note can be found here.

The position for 2020 remains the same as set out in that note.

However, our expectation in late January 2020 of what might happen in preparation for January 2021 onwards has changed significantly.  It had then been expected, or at least hoped, by the Ministry of Justice that there may be discussions with the EU throughout the spring of 2020 about some sort of bespoke arrangement for EU family laws to continue in some way as part of UK law, with the detail being finalised over the summer, then to go before the EU Parliament and the EU 27 member states for legislative approval over the autumn.  Crucially at the request of those of us meeting with the Ministry of Justice, there would be some certainty by the end of the summer so that UK family lawyers as well as EU family lawyers could inform clients and prepare cases accordingly.

That will not now happen.  With probably only two remaining elements of uncertainty as set out below, the position is significantly known now.  There is no need to wait until late summer.  There will be no negotiations with the EU for any ongoing, continuing EU family law to take effect in UK law in January 2021.  We will be relying on a combination of domestic law, both existing and introduced in expectation of a no deal, and other international laws, primarily Hague Conventions.

The information concerning this change has come primarily from two sources; a government paper and a meeting with the Ministry of Justice.

In late February 2020 the UK government produced a paper:
The Future Relationship with the EU: The U.K.’s approach to negotiations found here. It made clear that the UK would be looking for trade and other agreements and arrangements around the world and specifically would not be subject to continuing EU laws.  Family law does not feature strongly.  Indeed it is the very last paragraph of the paper and in respect of civil judicial cooperation at clause 64 it says the following: ‘the UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007’.

That seemed pretty incompatible with negotiations with the EU this spring for the UK to continue to be a party to EU family laws from January onwards.  It was confirmed this week at one of the regular and exceedingly helpful meetings between a few specialist UK international family lawyers and representatives of the Ministry of Justice.  The UK apparently remains very keen to have agreements with the EU on civil justice including family law, but these will be worked out in the medium term which will specifically be after December 2020.  It was confirmed to us that there will be no continuation of existing EU family laws.

So, what are the two primary remaining areas of uncertainty?

The first is relatively straightforward.  The UK is a signatory of the 1970 Hague Divorce Recognition Convention whereby divorces are recognised in signatory countries.  Only about half of EU member states are signatories; many states perceived it as unnecessary with Brussels II also providing this automatic recognition.  The UK has no real concerns about the recognition in the UK of divorces made abroad; we are a very liberal jurisdiction and non-recognition is rare.  The UK is anxious about recognition of UK divorce orders in some EU member states.  The EU is therefore being strongly encouraged by the UK to become a signatory of the 1970 Convention on behalf of all EU member states.  It may not be known until the autumn if this will occur.  In the meantime practitioners should consider ongoing cases where there is a connection with the non-1970 EU signatory countries, and whether the UK final divorce order should be obtained in good time for recognition in the other country under Brussels II before the end of December 2020.

The other is more complicated and concerns the government’s stated intention to join the Lugano Convention.  This international law relates to the recognition and enforcement of judgements.  In family law terminology judgement means maintenance, needs-based provision.  Its members are now the EFTA countries; Switzerland, Norway and Iceland with the EU as a signatory.  Between EU member states the EU Maintenance Regulation applies, which will come to an end for the UK on 31 December 2020.  It is understood the EFTA countries are keen for the UK to join.  But it is not known if the EU will support the UK joining and if it does, when the UK will join.  Although the UK government is committed to joining the Lugano Convention as quickly as possible and preferably on 1 January 2021, there is a risk that accession may be some, perhaps many, months later.  This will produce a very unsatisfactory time gap which may give rise to much international litigation.  So there will be one of three scenarios.  Either the UK does not join because the EU objects or it joins on 1 January 2021 or joins at some later date.  It would in any event run alongside the 2007 Hague Maintenance Convention.  The position is unlikely to be fully known until the autumn

So, what will be the position in January 2021? 

This note is only a quick update, given the change from what was expected in late January 2020.  A fuller note will be produced by us.  The following is a very brief summary:

• Divorce jurisdiction will be based on the existing law but with sole domicile now as a primary basis
  
• Forum will be based on closest connection, not the race to court
  
• Children orders will be recognised and enforced via Hague 1996
  
• Child abduction will be via Hague 1980
  
• Maintenance will be via Hague 2007 and perhaps Lugano
  
• Domestic violence orders made in the EU will be recognised in the UK, although the EU has not said if it will recognise UK domestic violence orders
  
• The UK will be a signatory in its own right to the 1996, 2005 and 2007 Hague Conventions