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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:
The over-arching aim and purpose of the EU regulations is to determine the appropriate jurisdiction for the matter to be heard, for judgments in Member States to be recognised and enforced, and for co-operation between the judicial systems of Member States.
The Ministry of Justice and the Department for Business, Energy and Industrial Strategy jointly issued a planning document on 13 September 2018 that deals, inter alia, with the position for family law if the UK were to leave the EU without an agreement (a ‘no deal’ scenario). The document includes details of plans where an area of family law is covered by an existing Hague Convention, and areas where it is not. The Law Society has published no-deal Brexit guidance on family law, highlighting EU treaties that will cease to apply with immediate effect in the event of a no-deal Brexit and that the UK will leave the EU’s institutional structures and co-operation between the UK and EU will end, with potentially unknown effects and implications for ongoing proceedings.
Under EU(W)A 2018, before certain statutory instruments are formally laid in Parliament, they have to go through a preliminary sifting process to determine the appropriate parliamentary procedure. To date, key statutory instruments issued under the sifting process with implications for family proceedings are:
The following SI was made on 30 October 2018, having been through the sifting process:
As ever, it is a case of watch this space, but regardless of whether the current proposed deal goes through, a new deal is negotiated, or there is no deal, family lawyers need to start preparing clients now for every potential eventuality.
Geraldine Morris is a solicitor and head of LexisPSL Family.
This blog post is based on an excerpt from the LexisPSL Family Practice Note: Brexit and Family Law. To read the full Practice Note and related content including News Analysis, click here to request a free 1-week trial.
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