EU laws continue until at least 2038 and beyondDate: 17/11/2020 Type: Articles Topic: HNW Divorce | Author: Prof David Hodson OBE MICArb, iFLG
The UK left the EU on 31 January 2020. But in matters of law it fully leaves on 31 December 2020. But EU laws will continue to apply, and be applied, in the English family courts from 1 January 2021 onwards, probably until 2038 and perhaps beyond. This fact is not much known, has not been widely publicised but is very relevant for those who wish to continue to rely on EU laws in their family affairs.
EU laws as such no longer have any part of UK law from 11 PM on 31 December 2020. But with any beginning and ending of international laws there are transitional provisions; arrangements for cases already decided and cases underway. This is the Withdrawal Agreement 2019, with the force of law.
It provides that as long as proceedings have been instituted by 31 December 2020, EU laws will continue to apply to the orders subsequently made in those proceedings. They will also continue to apply to orders already made by 31 December 2020. These EU laws deal with divorce, children and maintenance. They specifically cover recognition and enforcement. EU law would therefore apply in the following circumstances:
- A UK divorce already obtained or obtained in proceedings instituted before the end of this year will be recognised subsequently around the EU.So, somebody wishing to remarry in France in 2030 following 2020 or earlier UK divorce has confidence it will be automatically recognised.Similarly, the UK will over the coming years continue to recognise EU divorces made, or started, in 2020 and earlier.It may be many years before someone wishes to rely on the recognition of their divorce.EU law will still apply
- A UK order made now, or proceedings started now regarding arrangements for a child just born will be recognised and enforced around the EU during the minority of the child, e.g. until 2038.Equally the UK will recognise and enforce an EU child order over the same period
- A UK order requiring maintenance and support for a child just born will be recognised and enforceable around the EU during the minority of the child, up until 2038, so if for example the paying parent was to move to France in 2030, the recipient parent could enforce directly under EU laws.Equally an EU order now made could be enforced in the UK under EU law during the minority of the child
- A UK order requiring spousal support, alimony, will be recognised and enforceable around the EU.This might be for joint lives i.e. until the death of the first, or until retirement.So that if the paying party moved to France in 2040, the recipient former spouse could enforce directly under EU laws.Similarly, the UK will follow EU law in recognising and enforcing an EU maintenance order as long as the order lasts
Several issues of course arise.
EU laws are naturally reformed over the years: Brussels II will be amended from 1 August 2022. It is not clear if any recognition or enforcement would be under the EU law as at 31 December 2020 or what is then in force. It is anticipated to be the latter, even though the UK will not be a party to any discussions regarding reforms of these laws.
Variations of orders made in 2020 or earlier will continue under EU laws and procedures.
England will in effect remain inhibited from making Part III MFPA 1984 needs-based, maintenance orders in respect of such orders made in the EU in 2020 or following proceedings instituted in the EU on or before 31 December 2020. This is likely to have a big impact in Part III proceedings for some time to come. Proceedings in some EU countries e.g. Italy are notoriously slow and can take years to conclude. So if the court application was made in Italy on or before 31 December 2020 then as those proceedings are unlikely to be concluded for several years, any subsequent Part III application in respect of the outcome of those proceedings in perhaps the mid-2020s may still be limited by EU laws.
In conclusion, transitional arrangements are sometimes very short-term, perhaps a matter of months or a couple of years. But in the family law context they can last decades. The minority of a child. The duration of a maintenance provision. A lifetime in which somebody wishes to rely on a previous divorce order. In the very uncertain and fraught situation of Brexit, this means the UK and EU member states recognising, enforcing and applying their respective orders for perhaps at least a couple of decades and perhaps beyond.
For more information on family law and EU departure contact us
Prof David Hodson OBE MICArb
The International Family Law Group LLP
© November 2020