After forty-seven years of membership, the UK has left the EU. However, further negotiations and round tables with Europe still to come. In fact, Brexit entails a wide set of consequences that involve, politics, economics, security, human rights, and the application of the law. In particular, thanks to Regulations and Directives, EU has given itself a policy guidance over several matters also involving family law issues. Therefore, it appears useful to hint the main aspects of Brexit in relation to EU family law.
Because divorce, marriage, and child-related issues are widely covered by national law, it might be assumed that substantial family law will not be affected by Brexit. However, few procedural law aspects may have consequences over future proceedings. Between these concerns we can observe:
· Determination of the country which will hear an application for divorce or an application for parental rights;
· The timeframe for dealing with child abduction in EU courts;
· Provisions and Disputes in relation maintenance.
The aforementioned matters are covered by EU Regulations and potentially tackled by Brexit.
For instance, in the context of divorce matters, the law governing divorce action and related jurisdiction is the EU Council Regulation 2001/2003 (“Brussels II Bis”). The Regulation provides a common jurisdiction in relation to action of divorce, separation or marriage annulment based on the habitual residence of one of the spouses. In particular, the member state in which divorce action was first raised will take priority according to the Lis Pendens Rule. However, in the event previous actions’ jurisdiction will not be governed by Brussels II anymore, the jurisdiction will be settled under the forum convenience rule. Under this last circumstance, divorce proceedings will take place within the state that appears more convenient.
Brussels II ambit is also extended to ramification for parental responsibilities and rights. In fact, in the same way Brussels II applies to divorce proceedings, also the key element for parental actions is the residence of the child. Subsequently, the loss of Lis Pendens Rule may affect proceedings involving children because of the possibility to be involved in the middle of parental conflict to decide the jurisdiction of the case.
In the context of child abduction, the subject is mainly governed by Child Abduction and Custody Act 1985 that ratifies The Convention on the Civil Aspects of International Child Abduction. However, Brussels II supplements some provisions especially imposing a certain amount of time between the inception of the child abduction case and the court’s decision.
Brexit represents the most relevant change for EU and its consequences are not utterly clear to EU and UK stakeholders. Future negotiations will set guidelines and new opportunities for EU and UK.