The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 will be amended by a further instrument before 31 December 2020 to ensure its provisions are consistent with Title VI of the Withdrawal Agreement.

The EU Commission has also published guidance on family law disputes.

1. Divorce

1.1 Current law

Jurisdiction

The jurisdiction rules set out in Article 3 of Council Regulation 2201/2003, known as Brussels IIa, have been applied to all cases of opposite sex divorce, legal separation and annulment (divorce etc) in England and Wales whether or not the case has a cross border element.

The jurisdiction rules can mean that parties to a marriage may have standing to seise the court in a number of different member states. Parallel proceedings are avoided by the lis pendens rule in Article 19, requiring the court second seised to stay the proceedings before it.

For same sex divorce and civil partnership dissolution, legislation in the UK provides jurisdiction rules which broadly replicate the rules in Brussels IIa.

For further information, refer to the Brussels IIa Regulation.

Recognition of orders

Judgments on divorce are generally recognised in other member states without any special procedure, under Article 21. This is subject to the exceptions contained in Article 22. A party seeking or contesting recognition of orders for divorce etc made in England and Wales is required to produce the documents detailed in Article 37 and in particular the Article 39 certificate at Annex I to Brussels IIa (see family court form D180).

An interested party (in England and Wales or in an EU member state) can apply for a court order that a judgment on divorce should not be recognised.

For further information, refer to the Family Procedure Rules 2010 and D180 Certificate.

1.2 From the end of the transition period

Cases in England and Wales

Cases ongoing in England and Wales at the end of the transition period

The treatment of cases commenced before the end of the transition period (11pm on 31 December 2020) is governed by Title VI of the Withdrawal Agreement. The Brussels IIa provisions will continue to apply to such cases, and to the recognition and enforcement of judgments delivered in them. This includes judgments delivered, whether before or after the end of the transition period, by a court in an EU member state in proceedings commenced before the end of the transition period, but which have not been enforced in an EU Member State or the United Kingdom respectively before the end of the transition period. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

Jurisdiction

Divorce proceedings ongoing in England and Wales at the end of the transition period will continue under the current law and rules of Brussels IIa.

Recognition of orders

Courts in England and Wales will continue to recognise divorces granted in EU member states in the same way under Brussels IIa if the recognition proceedings started, or the divorce was granted, before the end of the transition period.

New cases in England and Wales after the end of the transition period

Jurisdiction

Brussels IIa will no longer apply to cases in England and Wales. As retained EU law it is revoked, and jurisdictional rules for the court in England and Wales which replicate those in Brussels IIa have been inserted into section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations. Sole domicile as a ground of divorce etc. jurisdiction has been added. The court in England and Wales will have a discretion to stay proceedings when there are proceedings continuing in another jurisdiction.

For same sex divorce and civil partnership dissolution, legislation in the UK provides jurisdiction rules in the EU Exit Regulations which continue to replicate the rules in Brussels IIa.

For further information, refer to the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations and the related Explanatory Memorandum.

Recognition of orders

After the end of the transition period, the court in England and Wales will recognise divorces granted in EU member states in which proceedings started after the end of the transition period in the same way as they currently do for orders from non-EU countries. The rules on recognition are to be found in the Family Law Act 1986 which implemented the 1970 Hague Convention on the recognition of divorce and legal separations.

(The 12 EU member states that are party to the 1970 Hague Convention on Divorce Recognition at the time of exit are Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden.)

Cases in an EU member state

The treatment of cases commenced before the end of the transition period in EU member states is governed by Title VI of the Withdrawal Agreement. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

New cases in an EU member state after the end of the transition period

The EU Commission has published guidance on family law disputes.

Recognition of orders

The recognition in an EU member state of a divorce order (decree absolute) granted in England and Wales in proceedings which were started after the end of the transition period will be governed by each member state’s national rules of private international law, unless they are party to the 1970 Hague Convention on Divorce Recognition, in which case the rules of that Convention apply, for divorce and separation only. Parties should seek local legal advice.

For further information, parties should refer to the full 1970 Convention.

The approach to the recognition of the divorce of same sex couples varies significantly between member states. Parties should seek local legal advice.

2. Maintenance

The treatment of cases commenced before the end of the transition period (11pm on 31 December 2020) is governed by Title VI of the Withdrawal Agreement. The Maintenance Regulation will continue to apply to such cases, and to the recognition and enforcement of judgments delivered in them. This includes judgments delivered, whether before or after the end of the transition period, by a court in an EU member state in proceedings commenced before the end of the transition period, but which have not been enforced in an EU member state or the United Kingdom respectively before the end of the transition period. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

2.1 Current law

Jurisdiction

The court in England and Wales currently applies the rules in Chapter II of the EU Maintenance Regulation 4/2009 to decide if it has jurisdiction to hear a maintenance case.

Recognition and enforcement of decisions

A maintenance decision made in England and Wales that is to be recognised and enforced in another EU member state must be recognised and must have a declaration of enforceability (registration for enforcement) before it can be enforced there. It should be accompanied by the documents required under Article 28, subject to the exceptions in Article 29.

A maintenance decision made in another EU member state (except Denmark) that is to be recognised and enforced in England and Wales does not need to be registered for enforcement. It should be accompanied by the documents required under Article 20.

For further information, refer to the Family Procedure Rules 2010

2.2 From the end of the transition period

Cases in England and Wales

Cases ongoing in England and Wales after the end of the transition period

The treatment of cases commenced before the end of the transition period is governed by Title VI of the EU Withdrawal Agreement.

New cases starting in England and Wales after the end of the transition period

Jurisdiction

The EU Maintenance Regulation 4/2009 will be revoked at the end of the transition period. For cases starting after this point, the court in England and Wales will decide if it has jurisdiction using the relevant non-EU rules (unless parties have before the end of the transition period made a choice of law agreement in accordance with the EU rules). These rules are different depending on the type of maintenance case before the court.

Recognition and enforcement of maintenance decisions

After the end of the transition period, the UK will use the rules of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance with other States Party, which include all EU member states except Denmark. The 1973 Hague Maintenance Enforcement Convention will continue to operate between the UK and Denmark.

For further information, refer to the full 2007 Hague Convention.

Cases in an EU member state

Cases ongoing in an EU member state at the end of the transition period

The treatment of cases commenced before the end of the transition period in EU member states is governed by Title VI of the Withdrawal Agreement. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

New cases starting in an EU member state after the end of the transition period

Jurisdiction

The guidance from the European Commission states that where proceedings involve a UK domiciled defendant, unless an EU instrument sets out the rules of jurisdiction with regard to third countries, international jurisdiction will be governed by the national rules of the EU member state in which the court is seised. To find out the law the member state’s court will apply in a case involving a UK party or parties after the end of the transition period, individuals should seek local legal advice if possible.

Recognition of decisions

The guidance from the European Commission states that in some instances international conventions will apply provided that both the EU member states and the United Kingdom are party to the convention. All EU member states except Denmark are party to the 2007 Hague Maintenance Convention so this will enable the recognition of UK maintenance decisions in EU member states after the end of the transition period.

Choice of court agreements within a Maintenance case after the end of the transition period

In England and Wales

The court in England and Wales will continue to recognise choice of court agreements in maintenance cases agreed before the end of the transition period in writing between all parties which satisfy the relevant conditions, even if the case is issued after the end of the transition period.

In EU member states

There is no guarantee that the courts of EU member states will recognise a choice of court agreement in favour of a court in England and Wales after the end of the transition period.

Further information

Scope of the 2007 Hague Maintenance Convention

The UK Government intends to operate the 2007 Hague Convention as soon as possible after the end of the transition period both for new cases and for payments from before exit for the benefit of a person under 21, with EU member states except Denmark. The UK has ratified the 2007 Hague Convention with the same declarations and reservations as before and the same scope as that applied by the EU, including spousal maintenance. The UK will in future consider wider application.

For further information, refer to the 2007 Hague Convention

Terminology differences between the 2007 Hague Maintenance Convention and the EU Maintenance Regulation

The EU Maintenance Regulation 4/2009 provides for the UK (and Ireland) to read “nationality” as “domicile”. The 2007 Hague Convention refers only to nationality.

The 2007 Hague Convention provides for the recognition and enforcement of maintenance decisions where the court which made the decision had jurisdiction for divorce, except if that was based on the nationality of only one spouse. Therefore, where the court’s jurisdiction for the divorce relies on sole domicile, not nationality, it should be possible for any maintenance decision to be recognised and enforced under the 2007 Hague Convention.

3. International parental child abduction

3.1 Current law

The main provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction are incorporated into the law of the UK jurisdictions by the Child Abduction and Custody Act 1985. All EU member states are party to the 1980 Hague Convention and use it with the UK. This provides a summary procedure for children wrongfully removed or retained away from their country of habitual residence to be returned there, so that long-term decisions about the future of the child can be made (abduction includes both wrongful removal and wrongful retention).

Members of the public whose child has been abducted out of England and Wales should contact ICACU (International Child Abduction and Contact Unit) for information on what action to take. If the member of the public believes their child is at risk of abduction in future from any part of the UK, they should contact the charity reunite International Child Abduction Centre for advice and information.

If they believe the child is being wrongfully removed from the UK and is on their way out of the country they should go at once to their nearest police station and ask for warning list action. They should also contact reunite International Child Abduction Centre.

For further information refer to:

• Child Abduction and Custody Act 1985
• The ICACU application form and guidance
• The Family Procedure rules 2010
• The ICACU specialist panel
• Reunite International on 0116 2556234.

3.2 From the end of the transition period

The UK and EU member states will continue to use the 1980 Hague Convention in international child abduction cases between them.

4. Children cases (parental responsibility)

Note: In EU terms parental responsibility includes residence and contact.

4.1 Current law

Jurisdiction

Article 8 of Brussels IIa provides that jurisdiction in children cases generally rests with the court of the country of the child’s habitual residence. Habitual residence is a question of fact which requires consideration of a number of factors. There are also other grounds of jurisdiction which may sometimes be relied upon. For example, under Article 12, the court with jurisdiction where there are divorce etc proceedings also has jurisdiction for proceedings about a child when at least one spouse has parental responsibility for that child and the relevant people agree the court should have jurisdiction.

For further information, refer to the Brussels IIa Regulation

Recognition of orders

The general rule is that judgments on parental responsibility shall be recognised in other member states without any special procedure, under Article 21. This is subject to the exceptions contained in Article 23.

An order made in England and Wales is recognised and enforced in other EU member states when accompanied by the relevant certificate, Annex II to Brussels IIa for parental responsibility (court form C60), Annex III for rights of access (court form C61), Annex IV for return of the child (court form C62). An order made in another EU member state is recognised and enforced in England and Wales when accompanied by the relevant certificate as above.

Relevant certificates: C60 C61 C62

For further details refer to the Family Procedure Rules 2010

4.2 From the end of the transition period

If the case is in England and Wales

Cases ongoing in England and Wales at the end of the transition period

The treatment of cases commenced before the end of the transition period is governed by Title VI of the Withdrawal Agreement. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

New cases in England and Wales after the end of the transition period

Jurisdiction

Brussels IIa will no longer apply in England and Wales after the end of the transition period. As retained EU law it is revoked by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019.

The court will instead make its decision on whether it has jurisdiction to hear private law cross border children cases in accordance with the rules of the 1996 Hague Protection of Children Convention.

Recognition of orders

Amendments to existing legislation made by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations make provision to enable the court in England and Wales to recognise and enforce orders from EU Member states.

If the case is in an EU member state

Cases ongoing in an EU member state at the end of the transition period

The treatment of cases commenced before the end of the transition period in EU Member States is governed by Title VI of the Withdrawal Agreement.

Transfer of cases after the end of the transition period

The provisions of Brussels IIa could prevent a court in an EU member state using the 1996 Hague Convention to transfer jurisdiction in children cases to the UK after the end of the transition period. The legal position on transfer of cases is not clear. Parties may wish to consider seeking local legal advice in the relevant EU member state if possible. New cases in an EU member state after the end of the transition period

Jurisdiction

All EU member states are party to the 1996 Hague Protection of Children Convention so it is expected that the court of an EU member state in a case with a UK connection will apply the rules of the 1996 Hague Convention to decide whether it has jurisdiction in children cases.

For further information, refer to the 1996 Hague Convention

Recognition of orders

The guidance from the European Commission states that in some instances international conventions will apply provided that both the EU member state and the United Kingdom are party to the convention.

5. Placement of children

5.1 Current law

Jurisdiction

Under Brussels IIa, the court hearing public law care proceedings will normally be the court of the country of the child’s habitual residence.

Current procedure

If the local authority wishes to propose to the court that the child be placed with a family member in another member state, local authorities are required under the rules in the Brussels IIa Regulation to seek and obtain prior consent from the competent authority in the EU country where they wish to place the child, in cases where that authority is involved in domestic placements.

For further information, refer to: the full Brussels IIa Regulation the ICACU application form and guidance and the Family Procedure Rules 2010

5.2 After the end of the transition period

Cases ongoing in the UK at the end of the transition period

The treatment of cases commenced before the end of the transition period is governed by Title VI of the Withdrawal Agreement. The Withdrawal agreement does not apply to the treatment of cases that commence after the end of the transition period.

Cases that commence after the end of the transition period

After the end of the transition period, local authorities and social welfare authorities in EU member states will use the rules in the 1996 Hague Protection of Children Convention on placements; under these rules they will need to seek and obtain consent to the placement in every case. Under the 1996 Hague Convention, the court hearing public law care proceedings will normally be the court of the country of the child’s habitual residence.