Brexit and Family Law – again

As this piece goes to print in February 2020, the United Kingdom formally left the European Union a few days ago, on 31st January 2020.

It might be thought that this moment would see there a raft of changes to the law in this country but this is not so. As is well known, the Government has negotiated a transition period until December 2020.

So what is the transition and why is it necessary?

What is the transition period?

The transition (sometimes called the implementation period) is due to last until 31 December 2020.

During this period, the UK will remain in both the EU customs union and single market.

That means, until the transition ends, most things will stay the same. This includes:

• Travelling to and from the EU (including the rules around driving licences and pet passports)
• Travel in the EU by separated couples or their children
• Freedom of movement (the right to live and work in the EU and vice versa)
• UK-EU trade, which will continue without any extra charges or checks being introduced
• The reciprocal rules between all members states of the EU relating to family law e.g. enforcement of court orders including those relating to finance and children
• The EHIC health insurance cards remain in force

Now transition has begun the UK will automatically cease to be a member of the EU’s political institutions, including the European Parliament and European Commission.

So, during the transition period and until 31st December 2020, while the UK will no longer have any voting rights, it will continue to follow EU rules.

Implications for UK Family Law

As indicated above, the rules which applied internationally before 31st January 2020 continue to do so. That will remain the case until 31st December 2020 unless the UK Parliament passes special legislation to the contrary. This is very unlikely because the Government’s position has been that it wishes to deal with everything together.

There are those who say that some of the negotiations relating to trade after 31st December 2020 will take longer (possibly much longer) than 11 months to finalise.

If that is the case and if the Government wishes to strip out the trade negotiations and deal with them separately from other issues, it remains to be seen how this will affect the areas of law which relate to family issues.

The need for advice before 31st December 2020

Practical considerations

As the year progresses it may become clearer the way in which family law in England and Wales may change after 31st December 2020. For example, there may be announcements by Ministers, with or without the agreement of the EU, as to the way in which the Government intends the law to be.

Accordingly, if you are already or believe that you may be, involved in issues where it might have to be decided whether the laws of England and Wales or the ESU apply, it would be sensible to take advice in good time.  Things you may need to consider are:

• Whether it is more beneficial to you to delay a divorce petition until 2021
• Whether any financial orders need to be registered before 31st December;
• Whether any private children orders need to be registered 31st December;
• The timing of any enforcement proceedings;
• Whether a “mirror order” e.g. relating to children, is needed in the relevant EU Member State
• Does any “choice of court” agreement need to be reviewed in a prenuptial agreement?

The strong message for those who may be affected by the effective departure of the UK from the EU on 31st December 2020 is the need to take advice whilst there is still time.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact a member of our Family team.