Amidst a time of uncertainty for all, there are many questions which remain unanswered regarding the effect Brexit will have on families whose relationships break down where there is a link to the EU.
Broadly speaking, the suggested Great Repeal Bill will not work for family law. This Bill intends to incorporate EU law into domestic legislation. However, as the majority of divorce and family law is based on reciprocal agreements, this implementation will not guarantee a common approach and certainty of outcomes.
The law surrounding divorce appears to be the most vulnerable to the changes invoked by Brexit. At present, Brussels IIa lays down the rules for determining jurisdiction in divorce proceedings. Currently, a divorce granted in England and Wales will automatically be recognised in other EU Member States (apart from Denmark). Post-Brexit, an English court will have to decide whether it, or another EU Member State, is the most appropriate forum and, if it is England and Wales, there is no guarantee that it will be recognised in other Member States. The result of this will be a costly and complex process for the litigant and potentially conflicting decisions between Member States.
Certainty is also not guaranteed in relation to children matters. For example, where children are ordered to live with one parent in an EU Member State whilst the other parent resides in the UK, there is no certainty that an English court order to this affect is enforceable in the Member State. There will also now be a large reliance on The Hague Convention, The Luxembourg Convention and Family Law Act 1986 for children matters. Some additions that have been made to Brussels IIa are not contained in The Hague Convention, although the contents are not dissimilar. There will be little guidance therefore on a wide range of child protection measures including the recognition and enforceability of orders concerning Parental Responsibility and contact.
Possible solutions for the UK? Aside from relying on other conventions which appears a risky solution, the UK could choose to have a similar relationship as Norway and Iceland have with the EU and be part of the European Economic Area. However, this would involve free movement which the UK is opposed to. Ideally, the UK would negotiate a free trade agreement with the EU which could allow the UK to adopt certain aspects of EU family law. However, this appears unlikely given the anti-EU approach of the government.
Therefore, it remains unclear exactly what approach the UK will take towards the EU in respect of family law, however it is important that clear legislation is in place to continue the reciprocity and certainty of the existing system.