The UK-EU transition period will end on 31 December 2020, at which point the EU lawyers’ directives and EU laws will no longer apply to England and Wales. 

This means that there will be significant changes for individuals, whether an agreement is reached on the UK-EU future relationship or not and you may need to act now to prepare for the end of the transition period.

We will set out some of the practical issues that will arise, including some guidance on the preparatory steps that you may need to take in readiness for our departure from the EU.

End of transition period guidance: private family law

This blog is relevant to recognising and enforcing orders in private family law proceedings. This relates to divorce, maintenance and private children law proceedings instigated after the end of the Brexit transition period on 31 December 2020.

For cases that started on or before 31 December 2020, the current framework of EU legislation will continue to apply, even where orders relating to those proceedings are made into 2021 and beyond.

Introduction

As an EU member state, the UK has been part of the ‘Brussels Regimes’. These are a series of legal instruments that have facilitated judicial co-operation in civil, commercial and family law between member states for several years. These regimes will continue to be valid in the UK until the end of the transition period.

Cases that begin in UK courts on or before this date will still fall under this regime, even if subsequent orders or requirements for EU recognition and enforcement are made in 2021 or beyond.

In family law, the main EU instruments are:

• Brussels II contains rules around divorce and children; and
• The Maintenance Regulation contains rules about family maintenance and needs-based provision.

In terms of the transitional arrangements, for cases where proceedings started before the end of the transition period, the existing EU instruments and rules will continue to apply right through to the recognition and enforcement of a judgment/order in those proceedings.

Cases instituted after 31 December 2020 – recognition and enforcement

These cases will fall under the existing international instruments of the Hague Conference on Private International Law, to which the UK and the EU are party, or national law found in primary and secondary legislation.

There will, therefore, be new frameworks and guidelines for recognition and enforcement of orders in each of the following areas for private proceedings:

• Divorce

For proceedings instituted on or after 1 January 2021, whether a divorce is automatically recognised will depend on whether the corresponding EU country is a signatory to the 1970 Hague Divorce Recognition Convention.

Where they are not a signatory, recognition will depend entirely upon the national laws of that country. Legal advice should be taken from a practitioner in the law of that jurisdiction.

• Maintenance

The 2007 Hague Convention provides for recognition and enforcement of maintenance orders between the UK and the EU courts. All EU member states are parties to this convention, except Denmark.

Once the transition period ends, the UK will continue to be a signatory to the convention as an independent contracting state (see the International Recovery of Maintenance (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007) (EU Exit) Regulations 2018).

The rules under this convention are similar although not the same as the Maintenance Regulation.

Recognition and enforcement in UK/Denmark cases will be governed by the 1973 Hague Maintenance Enforcement Convention.

• Children (private law)

Brussels IIa will no longer apply in England and Wales.

The 1996 Hague Convention on Parental Responsibility orders, which to a large degree emulate Brussels IIa Regulation, will be the relevant instrument.

The differences between the two instruments are largely based on the:

• Absence of a timeline for resolving child abduction cases, and the exclusion of a second attempt provision once child abduction provisions have been concluded in 1996 Hague Convention
• Point at which habitual residence applies
• Recognition and enforcement of orders relating to parental responsibility

It may be important to rely on Brussels IIa Regulation, in which case proceedings should be instituted before the end of the transitional period. Please contact us if you think you might need to institute proceedings prior to the end of the transitional period.

Amendments of the various statutory provisions by the Regulations will allow the courts in this jurisdiction to recognise and enforce orders made in an EU member state.

• Domestic violence

The EU Civil Protection Regulation provides that any domestic protection order made in any EU member state will be automatically recognised and enforced throughout the EU.

EU domestic protection orders

The UK indicated at an early stage in the EU negotiations that, despite Brexit, it would continue to recognise EU domestic protection orders for the benefit of the victims of domestic violence.

In this area alone in the family law context, the EU law has been placed into national law, so that from 2021 onwards any EU domestic protection order will be automatically recognised and enforceable in the UK.

UK domestic protection orders

In terms of UK orders, the EU has not yet made reciprocal arrangements. This means that for any UK domestic protection order made in 2021 or onwards, it needs to be followed up by a separate procedure in the EU national courts for recognition and enforcement.

This is likely to involve a much longer and more difficult process for the person seeking to rely on domestic violence protections.

For UK orders, the order itself has to have been made and obtained, and the appropriate EU certificate signed by the court making it, on or before the end of the transition period on 31 December 2020.

In those circumstances, such an order will then be automatically recognised and enforceable around the EU. If you are in need of an order to protect you from harm or the risk of harm, then you should contact us immediately, so that we can provide you with urgent advice about making an application to the court to obtain the order and certificate in time.