Family Law Disputes involving the UK post Brexit
Since the 1st of January 2021 and the ending of the transitional period the landscape involving family law disputes where an EU national is married or in a partnership/relationship with a UK national or where either of the parties is living in the UK has changed considerably.
In this article we look at a number of the consequences which have flowed in a post Brexit world.
In circumstances where say one of the parties to the marriage is from Ireland and the other from the UK or indeed where one is currently living in Ireland and the other lives in the UK the “lis pendens” rule applied pre the 31st of December 2020. This meant that whichever party issued proceedings first, the jurisdiction in which those Proceedings were issued had seisin (this means control) of the Proceedings. This is the rule in Brussels II(a)which applies to all EU member states.
Because the UK is no longer a member of the EU, Brussels II(a) no longer applies in these circumstances and a rule known as the “forum conveniens” rule would apply where even though Proceedings may be issued first in one jurisdiction the Court in that jurisdiction may decline to deal with the matter if it concludes that it is more convenient for Proceedings to be dealt with in another jurisdiction because of the availability of witnesses etc. This is undoubtedly going to lead to lengthy and more costly disputes in relation to the issue of jurisdiction because of a significantly greater level of uncertainty as to whether a Court in a particular jurisdiction will agree to deal with proceedings even though commenced first in that country.
This uncertainty may be alleviated if the UK is admitted as a signatory to the Lugano Convention in which circumstances the “lis pendens” rule will again apply.
Enforcement of Maintenance Orders
Under Brussels II(a) which applies to all EU countries, there is automatic reciprocal recognition of Maintenance Orders. With the Brussels II(a) no longer applying to the UK reliance will now be placed on the 2007 Hague Convention which is similar to the EU maintenance Regulations under Brussels II(a) but not on all fours and again certain uncertainties may apply. Time will tell as to how Maintenance Orders obtained for instance in Ireland can be enforced in the UK and vice versa.
Child Abduction and Parental Responsibility Matters
These matters have traditionally been dealt with under Brussels II(a) which is a relatively straight forward process. Up to the 31st of December 2020 if a child whose habitual residence was in Ireland was removed by a parent to the UK without the others parent’s permission an application would be made in the UK for the immediate return of the child to Ireland where all issues relating to the child’s welfare would be decided.
The regulations relating to the departure of the UK from the EU now mean that any such applications must be dealt with under the Hague Convention which provides similar but not identical protection.
In the area of parental responsibility, the entitlement to automatic recognition of Orders in one jurisdiction may not apply and it may be necessary when an Order is obtained in Ireland for mirror Orders in relation to parental responsibility to be obtained in the UK.
This will undoubtedly lead to time delays, greater uncertainty and significantly greater costs being imposed on families who find themselves in this situation.
As time evolves and the legal position in relation to these important but complicated areas will become more clear cut.
In the meantime, if you have any queries in relation to any of the matters dealt with in this article or any other Family Law Matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666