How will Brexit affect family law in England and Wales?

With the end of the transition period looming at the end of December, two pieces of EU law relating to divorce, financial remedies, child maintenance and arrangements for children will then no longer apply to the UK if no agreement is reached in the meantime.

Known as ‘IP completion day’, 31 December 2020 marks the end of the implementation period for the Withdrawal Agreement. Despite an extension to that period being suggested by some because of the Covid-19 pandemic, the date is not due to change and that is when the Brexit legislation will be implemented.

What this means for family law

During the withdrawal period, relevant EU law has been retained as domestic law, with powers to permit secondary legislation to amend existing legislation until IP day.

In relation to family law, EU law is mostly concerned with procedure rather than substantive law (which the Member State still has power to determine).  There are two key Regulations that affect family law in the legal jurisdiction of England and Wales:

• Brussels II (also known as Brussels IIa), Council Regulation (EC) 2201/2003 of 27 November 2003, says which Member State should have jurisdiction to hear a case. It provides for the recognition and enforcement of judgments in matrimonial matters (divorce and related financial disputes) and matters of parental responsibility (the legal rights and responsibility you have as a parent in respect of your child).
• EU Maintenance Regulation, Council Regulation (EC) 4/2009, sets out what should happen concerning jurisdiction, applicable law, recognition and enforcement of judgments and co-operation between other EU Member States in matters relating to maintenance obligations.

In other words, these Regulations are relevant in all matters relating to divorce, financial remedy, child arrangements and child maintenance.

EU Regulations are intricately woven into the fabric of our legislative process and have continued to influence family law in this jurisdiction throughout the implementation period.

But what happens after IP day? That all depends upon whether or not an agreement is reached between the UK and the EU as to the future post-transition family law arrangements to come into effect from 1 January 2021.

An agreement will possibly mean the continuation of some EU-derived law. No agreement means that Brussels II and the EU Maintenance Regulation will no longer apply.

A great deal of sifting of family law legislation has already taken place, just in case there is no agreement, to ensure that family law in England and Wales will continue to function, but family lawyers will need to be aware of the workings of the new regulations and how they will affect cases with international elements.

For more information contact Alex Wilson at [email protected] or on 07583 015 487.