How Brexit may impact UK family law

Whether you are in favour of Brexit or not, it’s where the UK is headed.

The headlines are full of how this affects businesses, but other areas will also see significant changes.

One of the most affected areas is family law.

Why will family law be affected by Brexit?

With about 3.6 million people in the UK from other EU countries, the impact on family law is inevitable. Many of these individuals have relationships with UK nationals, have children, and unfortunately, some relationships break down.

The free movement across the EU has led to an increase in marriages between people from different member states. When these relationships end, questions about finance and, more crucially, child custody and safety often arise across borders.

How it currently works

Currently, the Brussels IIa Regulation (2201/2003) plays a vital role in family law cases with a cross-border element. This regulation provides rules on jurisdiction and the enforcement of orders across the EU.

It also ensures the swift return of abducted children from one EU country to another. Similarly, the Maintenance Regulation helps maintain clarity around jurisdiction and enforcement when financial matters arise.

For now, this system continues until the UK leaves the EU.

However, the big question remains: What will replace these regulations when the UK is no longer part of the EU?

This uncertainty grows, particularly if the UK rejects the jurisdiction of the Court of Justice of the European Union (CJEU) in future legal disputes.

What changes are expected after Brexit?

The Government’s proposals for Brexit reject the idea of retaining the CJEU as the final appeal court. Instead, they suggest committees, arbiters, or voluntary referrals to the CJEU for interpreting EU law.

However, EU member states may not agree to a custom arrangement with the UK on family law disputes if there is no overarching court to resolve cross-border issues.

The current system, including the EU regulations and CJEU jurisdiction, will remain in place for any existing cases or past rulings. But for families dealing with cross-border disputes in the future, particularly regarding children or financial matters, there is much uncertainty.

Resolution, the national body for family lawyers, believes that EU law in the family law sphere should continue to apply fully. They argue that reciprocity is key and that the UK should remain bound by CJEU decisions to ensure clarity and fairness.

What are the alternatives?

As we move closer to Brexit, much remains uncertain, making it hard to predict the future of UK family law.

If the UK can no longer rely on the EU system, it might turn to the Hague Convention, which already covers international child abduction outside the EU.

The Lugano Treaty, which addresses enforcement of civil judgments between the EU and non-EU countries like Switzerland, could also provide a solution, particularly for maintenance issues.

However, if the UK leaves the single market, ratifying this treaty might not be an option.

Another alternative would be to negotiate a bespoke treaty between the UK and the EU to maintain the current family law regulations.

Despite many calls to completely remove the influence of the CJEU over the UK, it may make sense to retain the full reciprocity of EU law in areas like family law, given the inevitable international aspects involved.

Looking ahead

There’s still a long way to go before we fully understand how Brexit will affect family law in the UK. As changes emerge, especially in how cross-border family disputes are handled, we will continue to monitor developments closely.