This guidance is relevant to private family law proceedings with an inter-EU element. This includes proceedings relating to divorce, maintenance and private children law.
It sets out how jurisdiction and forum will be applied to proceedings instigated on or after 1 January 2021 and impacts on recognition and enforcement of orders.
For cases instituted on or before 31 December 2020, EU legislation will continue to apply, even where orders relating to those proceedings were made in 2021 and beyond.
This guidance will be updated should the UK accede to the Lugano Convention 2007.
Introduction
As an EU member state, the UK was part of the ‘Brussels Regimes’. These are a series of legal instruments that have facilitated judicial co-operation in civil, commercial and family law between member states for several years.
Cases that were instituted in UK courts on or before 31 December 2020 still fall under this regime, even if subsequent orders or requirements for EU recognition and enforcement are made in 2021 or beyond.
In family law, the main EU instruments are:
- Brussels II, which contains rules around divorce and children
- the Maintenance Regulation, which contains rules about family maintenance and needs-based provision
The transition arrangements, relevant for UK proceedings and for EU proceedings concerning the UK, are contained in articles 67 to 69 of the Withdrawal Agreement.
These articles set out that, for cases where proceedings have been instituted before the end of the transition period (31 December 2020), EU instruments and rules will continue to apply right through to the recognition and enforcement of a judgment/order in those proceedings.
For this to apply, substantive proceedings must have been instituted.
Post-Brexit laws
Cases instituted after 31 December 2020 will either fall under:
- the existing international instruments of the Hague Conference on Private International Law, to which the UK and the EU are party, or
- national law found in primary and secondary legislation
The relevant Hague conventions include:
- 1970 on the recognition of divorces and legal separations (1970 Hague Convention) (there are currently 12 EU member states party to this convention – Cyprus, the Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia, Sweden – and the UK)
- 1980 on the civil aspects of international child abduction (1980 Hague Convention)
- 1996 on jurisdiction, applicable law, recognition and enforcement and cooperation in respect of parental responsibility and measures for the protection of children (1996 Hague Convention)
- 2007 on the international recovery of child support and other forms of family maintenance (2007 Hague Convention)
An overview of the instruments is set out below.
After Brexit, there are new frameworks and guidelines for proceedings in each of the following areas for private proceedings:
| EU instrument | Rules relating to | After Brexit – cases instigated after 31 December 2020 |
|---|---|---|
| Brussels IIa Regulation (EC) No 2201/2003 | Divorce jurisdiction |
No equivalent Hague convention rules. See paragraph 2.1 |
| Divorce recognition |
1970 Hague Convention, but only in respect of cases from 12 member states. Domestic private international law for other cases |
|
| Parental responsibility jurisdiction |
1996 Hague Convention (ratified by all EU member states) |
|
| Parental responsibility recognition and enforcement |
1996 Hague Convention (ratified by all EU member states) |
|
| Child abduction jurisdiction | 1996 Hague Convention and 1980 Hague Convention | |
| Child abduction 'override' (recognition and enforcement of a particular kind of decision) |
No equivalent Hague convention rules. Domestic private international law will apply |
|
| Maintenance Regulation (EC) No 4/2009 | Maintenance jurisdiction |
No equivalent Hague convention rules. Domestic private international law will apply. See paragraph 3.1 |
| Maintenance recognition and enforcement | 2007 Hague Convention, although the UK may accede to the Lugano Convention 2007 |
Resources
EU guidance on civil justice transitional arrangements
Family law leaves the EU: a summary guide for practitioners by David Hodson, LexisNexis