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Brexit and Family Law: Our “Divorce” from the EU

Much of 2020 has been dominated by COVID-19 and the worldwide pandemic. For some of us, it will be a distant memory that the UK officially left the European Union in 31 January this year. But the harsh reality is that we have been in a transition period since the date of the “divorce” and that period is swiftly coming to an end.

The withdrawal agreement concluded between the EU and the UK provided that the status quo in relation to affected family law cases would continue during the transition period, so to date it has been business as usual. However, this begs the question – what comes next in the world of family law, and how might it affect you?

Family law cases with an international element are often complicated at the best of times, and Brexit has only sought to cause further problems and uncertainly for international families. Being a member of the EU allowed the UK to rely on various EU laws which made some aspects of international family law easier, for example, recognising divorces within EU member states, enforcing financial orders abroad, pursuing child or other forms of maintenance, or dealing with disputes in relation to children. At 11pm on 31 December 2020, the end of the transition period, those beneficial laws will cease to apply to us.

The UK Government has sought to replicate the benefits of the reciprocal arrangements in some areas, but unfortunately not in all. Discussions are still ongoing, and no bespoke deal has been negotiated thus resulting in an element of uncertainty. There are of course other provisions which lawyers will be able to rely on, such as domestic laws, and Hague Conventions, and it remains to be seen how these provisions will fit together, and how cross-border matters with the UK will be dealt with by the EU.

One thing that is certain at this time, however, is that any cases issued prior to the 31 December deadline will continue to be dealt with under the current rules in the future (regardless of how long matters might take to resolve). As such, we would urge anyone who is contemplating separation or divorce to take specialist international family law advice now, as it may be beneficial to take steps to protect your position before the end of this year. Taking immediate action could avoid potential uncertainty, delays, confusion and additional costs of waiting to see what happens from 1 January onwards.

How can we help?

The family team at Clarke Willmott have extensive experience in international family law matters. Please consider talking to us before the end of the year if you find yourself in any of the following scenarios:

  • You and/or your partner have been living abroad in an EU member state and have returned to England and Wales, or one of you continues to live there, and you are considering separating or getting divorced and need to sort out a financial settlement;
  • You and/or your partner are originally from an EU country and you are considering separating or getting divorced and need to sort out a financial settlement;
  • You and/or your partner have other connections or assets (e.g. properties, funds, pensions) in an EU country and you are considering separating or getting divorced and need to sort out a financial settlement;
  • You have children and there may be a dispute in relation to where they will live/contact arrangements and either you or your partner have a connection with one or more EU member states;
  • You have not yet issued proceedings, but you anticipate having to enforce an Order in another EU country;
  • You and your partner have international connections, are looking to get married, and are considering an international prenuptial agreement to protect your assets

Should you act now?

It is important to seek advice now so that you can consider, in discussion with an expert lawyer, which country should deal with any divorce/financial application, how any financial agreements or Orders can be enforced, and where disputes in relation to children matters should be heard, in order to obtain the best outcomes for you and your children (if applicable). In light of the uncertain future, it is important to consider now whether your position could be protected or improved by taking immediate action, action which may potentially save future time, hassle and costs.

The Family Team at Clarke Willmott can advise on the full range of international and domestic private family law issues. Please contact us today for an initial confidential consultation.


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