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With a potential Brexit withdrawal deal seemingly now in the pipeline (although subject to change of course at any minute), this blog post summarises some of the potential implications for family law of the UK exiting the EU, and resources available in relation to both Brexit generally and family law specifically.
The European Union (Withdrawal) Act 2018 (EU(W)A 2018) received Royal Assent on 26 June 2018. Certain provisions, including powers to legislate in connection with withdrawal, devolution, parliamentary approval (meaningful vote), financial and other matters entered into force on 26 June 2018. Other key provisions, including repeal of the European Communities Act 1972 and other primary legislation, retention, publication and status of retained EU law, rules of evidence and interpretation (including the definition of exit day) are to be appointed. By virtue of the European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018, SI 2018/808, various provisions of the European Union (Withdrawal) Act 2018 came into force in the UK on 4 July 2018. The provisions include the regulation-making power which allows regulations to be made to create exceptions from the general rule, which prevents challenges to retained EU law post-Brexit on the grounds that an EU instrument was invalid.
EU(W)A 2018 enables the government to use delegated legislative powers to prepare the UK statute book for Brexit. The aim is to introduce legislation necessary to ensure an orderly exit from the EU in UK law, reflecting the preservation/retention of existing EU law in UK law where appropriate and correcting laws as required to ensure they operate appropriately after exit day.
Relevant EU law
In relation to family law, EU law is primarily concerned with procedure, as opposed to substantive law, which is instead determined by the relevant Member State. Numerous EU instruments are applicable to family law (see Annex 1 to Brexit and family law—Joint paper of Resolution, the Family Law Bar Association and the International Academy of Family Lawyers—October 2017 for a list), but the two main EU regulations likely to be encountered by practitioners on a day-to-day basis are:
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Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.
Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.
When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).
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