Brexit and family law | In Principle

On 31 January 2020, the UK ceased to be a member state of the EU, and since then has not participated in EU decision-making processes or the work of EU institutions. The transition period provided for in the Brexit withdrawal agreement ends on 31 December 2020. Until then, all EU rules (with some exceptions not related to family law) still apply to the UK, as they do to EU member states. But how will divorce, maintenance, child and parental authority issues look from the start of 2021?

Divorce

The instrument governing jurisdiction in matrimonial and parental responsibility matters in EU member states (except Denmark) is the Brussels II bis Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility).

Until the end of the transition period, Brussels II bis applies to relations between EU member states and the United Kingdom, among other things to determine the court in which divorce proceedings can be initiated, which court has priority in dealing with disputes, or whether the court deciding on the divorce also has jurisdiction to adjudicate on matters of parental responsibility. If a petition for divorce is made before the end of the transition period, the divorce proceedings will continue in accordance with the applicable EU rules (even if the proceedings themselves terminate after the end of the transition period).

After the transition period, the existing rules under Brussels II bis related to pending suits (lis pendens) will change. Currently, if one spouse files for divorce in the UK before the other one files for divorce in Poland, the Polish court must stay the proceedings and in principle the court in the UK will have jurisdiction. The UK will return to the doctrine in force in common law countries known as forum non conveniens, which means that an English court will have the right to stay proceedings if it finds that the court of another state is clearly more appropriate to resolve the dispute.

At the same time, it is worth noting that under English law, the court before which the case has been brought does not carry out such an analysis at its own initiative, but only at the request of one of the parties. It is the respondent who raises the plea of forum non conveniens who must demonstrate that the foreign court also has jurisdiction and is clearly more appropriate. If the first condition is met, a petitioner who wishes to avoid upholding of this plea must prove that they cannot obtain protection of their rights in the foreign court in question, and therefore the second condition for upholding the plea is not met. These conditions for application of the forum non conveniens doctrine are subject to discretionary review by the court before which the case is brought.

As regards the recognition of judgments rendered in member states, this position will depend on the state concerned. For 13 of the 27 member states (including Poland) which, like the UK, have signed the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, judgments rendered in one country will be automatically recognised in another. In the case of other states, existing bilateral agreements or provisions of national law should always be checked to determine whether the judgment is subject to automatic recognition or the party must apply for recognition in that state.

Parental authority, child protection measures, and parental abduction

In addition to matters of jurisdiction and the recognition and enforcement of judgments in matrimonial matters, the Brussels II bis Regulation also contains provisions on jurisdiction in matters of parental responsibility and parental abduction in the EU, supplementing in the latter case the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

In the case of a no-deal Brexit, parental authority (responsibility) proceedings for the application of child protection measures, as well as for the return of a child to his or her habitual residence, pending at the end of the transition period, will continue on the same terms. In new cases, the 1996 Hague Convention on Parental Responsibility and Protection of Children, as well as the 1980 Hague Convention, will apply accordingly.

In cases regarding parental abduction, the scope of procedural guarantees under the Brussels II bis Regulation is undoubtedly broader. According to the regulation:

• Member states must rule on an application for return of a child within 6 weeks of submission
• The child must be given an opportunity to be heard, if his or her age and degree of maturity allow
• The requesting parent is guaranteed the right to be heard before the application for return can be rejected
• A court may not refuse the return of a child under Art. 13(b) of the 1980 Hague Convention if it is established that appropriate measures have been taken to safeguard the protection of the child after return.

However, the key difference between the current international child abduction abroad regime and proceedings based solely on the 1980 Hague Convention is the mechanism stemming from Art. 11(6)–(8) of the Brussels II bis Regulation. This mechanism applies in intra-EU cases where the application for return has been rejected by the court of the state to which the child has been abducted, on the basis of Art. 13 of the 1980 Hague Convention. It allows the court at the place of the child’s habitual residence to reassess the application for return and the substantive decision on custody without grounds for refusing enforcement of the judgment by the state whose court has denied the application for return.

Performance of child maintenance obligations

The framework for jurisdiction and enforcement of judgments regarding maintenance obligations between member states is currently provided by the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations).

In preparation for the possibility of a no-deal Brexit, the UK signed and ratified the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which will be effective after the end of the transition period.

The 2007 Hague Convention contains the same rules as the Maintenance Regulation in many respects, but with some notable differences.

First, and this is the fundamental difference between these regulations, the 2007 Hague Convention is not so much concerned with issues of law or jurisdiction, but the effectiveness of foreign decisions and facilitation of the recovery of maintenance in cross-border situations. On the other hand, the Maintenance Regulation contains several alternative direct grounds of jurisdiction. Additionally, if proceedings involving the same parties and the same cases are brought before the courts of more than one EU member state, jurisdiction is exercised by the court first seised.

Unless an agreement is reached with the EU, the rules of jurisdiction applicable to the recovery of maintenance will be determined by national law and may differ according to the type of obligation.

Second, the Maintenance Regulation applies to maintenance obligations arising from a family relationship, kinship, marriage or affinity. The material scope of the 2007 Hague Convention is slightly more complex, since the convention allows for narrowing or extension of the default scope of application to include maintenance obligations for a child under the age of 21 and maintenance obligations between spouses and ex-spouses where the application is submitted simultaneously with an action arising out of a parent-child relationship.

Summary

Brexit will surely have an impact on cross-border divorces and parent-child relations between the United Kingdom and member states of the European Union, at least due to the change in the legal basis for applications and lawsuits and the differences between the specific legal instruments discussed above. But hopefully the system of Hague Conventions will provide family members with protection of their rights as effective as the protection they now enjoy.

Anna Olejniczak-Michalska, attorney-at-law, Private Client practice, Reprivatisation practice, Wardyński & Partners