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Brexit and Beyond - Family Law
In a world where a pandemic has turned everything on its head, you would be forgiven for thinking that Brexit was done and dusted; no longer front-page news, it barely seems to be mentioned. However, it is far from over and we have yet to see the real impact which will happen once the transition period ends on the 31st December 2020.
When it comes to family law, there will be many who will not notice any difference, particularly those who are UK nationals who were born here, live and work here and whose property exists only here. However, there are also many who will or may be impacted as a result of these changes.
Currently, we have EU legislation which sets out which country has jurisdiction to entertain divorce proceedings and ensures mutual recognition of divorce proceedings amongst the member states of the EU.
One example of how this operates is that if a divorcing couple have a choice of countries in which to issue divorce proceedings (because of where they are domiciled or habitually resident) and they both issue divorce proceedings in different member states, the divorce proceedings that were initiated first will be allowed to proceed and the second set of proceedings must be stayed.
For proceedings which are commenced after the 31 December 2020, this will no longer apply. The jurisdictional grounds for issuing proceedings in England and Wales will be largely the same as they have been repeated in new domestic law. However, where there are competing applications in England and Wales and in an EU member state, our courts will have a discretion to stay the proceedings but no obligation. The continuation of the foreign divorce proceedings (and any right to challenge) will be as per the laws applicable in that country.
Divorce orders which are obtained in the England and Wales will be recognised in EU member states that are parties to the 1970 Hague Convention as this continues to apply. The countries are Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden. For those member states that are not part of that convention, recognition will depend upon their own national law and requirements for recognising foreign divorces.
Currently we have EU legislation which allows for maintenance orders which are made in England and Wales to be recognised and enforced in EU member states and visa versa. Once again, for proceedings which are commenced after 31st December 2020, these rules will cease to apply.
Jurisdiction for the court to hear a maintenance claim in England and Wales will be determined in accordance with our own national laws and likewise, claims made in the EU will be subject to their own rules on jurisdiction. The 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance will enable enforcement of orders with all EU member states except Denmark. The 1973 Hague Maintenance Enforcement Convention will continue to operate between the UK and Denmark.
The position with regards to child abduction remains the same. All EU member states are party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This is not impacted by the withdrawal of the UK from the EU.
The position in relation to private law proceedings is different. The current rules determining which country has jurisdiction to the determine an application is largely based upon the habitual residence of the child although there is a further ground if the court has dealt with divorce proceedings and everyone agrees. There is also mutual recognition of orders made in different EU states subject to a certificate of recognition being obtained.
Going forwards, the court is England and Wales will use the 1996 Hague Protection of Children Convention to determine whether it has jurisdiction to hear private law cross border children disputes for applications made after 31st December 2020. The same will apply to courts in the EU member states as all member states are party to the same convention.
When it comes to recognising orders made in EU member states, for applications issued after 31st December 2020, England and Wales are introducing new domestic law which will allow recognition of orders made in EU courts. The position in relation to the recognition of orders made in England and Wales will depend upon national laws/ whether there is an applicable convention/ treaty.
If you are currently considering separation or dealing with issues such as divorce, maintenance or arrangements for children and your situation involves international aspects, it is extremely important that you seek legal advice if you have not already done so.
At Birkett Long LLP, our team of specialist Family Lawyers are able to advise in relation to all aspects of Family Law.