The Family Law Bar Association published its paper on the impact of Brexit on family law in October last year.
The Law Society of England and Wales was the facilitator in drafting the paper through its Family Law Committee.
The paper sets out three main possibilities for when EU family law provisions cease to apply in the UK:
1. Retaining full reciprocity: UK would replicate current EU instruments in its domestic law and maintain the reciprocal arrangement with EU member states;
2. Domesticating without full reciprocity: UK would replicate current EU instruments in its domestic law but without retaining full reciprocity with other EU member states; or
3. Bespoke arrangements: UK would make its own arrangements with the EU which would set out a new framework for family law cooperation between the UK and EU.
Regarding the role of the Court of Justice of the EU (CJEU), the paper suggests leaving in place the existing structure for resolving disputes on the interpretation of the mutually beneficial EU family law provisions which the government is proposing to write into UK law. The alternative options set out in the government’s paper would require the agreement of the other EU member states and the authors anticipate that the EU is not likely to agree to such alternatives when there is already an overarching authority which works in the abovementioned circumstances.
The paper also considered what might happen if ‘no deal’ were reached by the date the UK exits the EU and if the government does not write the EU provisions into the UK domestic law. There are other international instruments which are already in place and deal with similar topics to those covered by the EU instruments, such as The Hague and Lugano Conventions. However, they are on the whole not comparable or desirable as alternatives to the more comprehensive EU instruments.
The authors advise the UK Government to preserve the status quo whilst considering the longer-term options. It must take seriously the effect of writing the EU provisions into UK family law without an agreement with the EU that the provisions would continue to operate on a reciprocal basis.
Accordingly, the paper recommends that the Government takes all possible steps to achieve an outcome as per ‘option 1’ above i.e. retaining the EU provisions and arranging for full reciprocity.
However, if the Government ultimately wishes to work towards a new arrangement for cross-border family law between the UK and EU, ‘option 3,’ the authors would wish to engage fully and will assist as and when necessary to advise as to the possibilities and implications.