The Impact of Brexit on Family Law Cases-August 2017

September 14th, 2017

Very often in family law cases a situation will arise where one of the parties may wish to locate to another jurisdiction and a decision has to be made as to which country the family law proceedings will be heard in.

Decisions in this regard are generally governed by council regulation 2201/2003, generally known as Brussels II, whereas maintenance issues are decided by counsel regulation 44/2001.

The general principle under Brussels II is that the party who commences proceedings first secures jurisdiction. As an example of this, if one of the parties has moved to the UK and issues proceedings in the UK, the general rule would be that any subsequent proceedings must take place in the UK.

However, as Britain will no longer be part of the EU, Brussels II will not apply to them. This is likely to cause an amount of uncertainty in relation to the jurisdiction in cases which involve couples in which one of the parties is residing in the UK and the other party is residing in Ireland, or where one of the parties wants the litigation to take place in the UK and one of the parties wants the litigation to take place in Ireland.

Under Article 21 of Brussels II, there is a provision whereby orders made in one member state by other member state in divorce, separation and marriage annulment matters are automatically recognised in other member states. This is subject to certain exceptions.

However, there is no guarantee post-Brexit that the EU will decide to automatically recognise orders made in Britain and vice versa.

The system of recognition of foreign divorces from non-EU countries in Ireland is already complex and the departure of Britain from the EU will further complicate these issues for those couples who have married somebody from the other jurisdiction.

There is no doubt that we are entering a time of great unease and uncertainty in international family law. It is important that clarity is brought to this situation in due course.

If you have any queries on this or any other family law topic please contact any of our Collaborative Solicitors whose details are listed on this website.