Cleo Davies explores the implications of Brexit for cross-border family law matters, which is the subject of a new UK in a Changing Europe working paper.
Divorce is often used as a metaphor to describe the UK’s acrimonious departure from the EU after over 40 years of membership. However, the impact of Brexit on actual family law matters has not made the headlines.
Brexit means that UK and EU citizens could face increased delays, legal costs and uncertainty for cross-border cases in family law areas, in particular for child maintenance enforcement and divorce.
UK-EU civil justice cooperation on family matters
Cross-border disputes in civil law, which covers family matters as well as commercial matters, are governed by rules of private international law.
These rules help to facilitate civil justice cooperation. They provide clarity, among other things, on which court can hear a case – this avoids the same case brought to court in two different countries. These rules also help ensure that a judgement pronounced in one country is recognised and implemented in another.
With more legal certainty, all parties save time and money.
Prior to Brexit, the UK had opted into the main regulations of the EU’s regime on civil justice cooperation on family law matters. In this area, EU private international law aims to provide clarity to families in relation to reciprocal recognition of divorce, jurisdiction for divorce, recognition and enforcement of maintenance orders and child abduction proceedings.
A report from the House of Lords European Union Committee warned that outside of the EU regime, the UK ‘falls back on a more complex and less effective web of international conventions and instruments’.
However, the Trade and Cooperation Agreement (TCA) makes no mention of civil justice cooperation, including on family matters.
Since 1 January 2021, the UK and the EU are now reliant on pre-existing international conventions under the Hague Conference on Private International Law (HCCH) where conventions exist, or fall back on the domestic law of the UK and each of the 27 member states, but without any reciprocal arrangements.
Why no agreement?
The dynamics of the negotiations on the future relationship shaped the outcome in family law matters with implications for citizens in the UK and EU.
The EU put forward a very narrow proposal for including cooperation on family matters in its draft agreement on the future relationship. To do so, it decoupled family law matters from the broader areas of civil justice cooperation.
The UK chose to exclude all areas of civil justice cooperation from the negotiations on the future relationship and focused its efforts on acceding to existing international conventions, notably the 2007 Lugano Convention.
Acceding to the Lugano Convention would compensate for many of the shortfalls of leaving the EU’s regime. But it would also mean that the UK jurisdictions would continue to benefit from their privileged situation as a ‘litigation hub’ in commercial matters too because of the principles of reciprocity at the heart of the Lugano Convention.
For the UK, acceding to the Lugano Convention presented the double advantage of covering reciprocity in both family law and broader civil and commercial matters.
This position, though, was at opposite ends from the EU’s, who had consistently decoupled family matters from other aspects of civil justice cooperation and adopted a very narrow position on continued cooperation.
Furthermore, acceding to the Lugano Convention requires the ‘unanimous agreement of the Contracting Parties’, namely the EU, Denmark, Iceland, Norway and Switzerland. This left the EU to decide unilaterally whether it would accede to the UK’s request.
The UK applied to join the Lugano Convention in April 2020. However, the European Commission recommended rejecting the UK’s request in May 2021. It notified the depository of the Convention that the EU’s is not in a position to accede to the UK’s request in July 2021.
The European Commission argued that the Lugano Convention ‘is not the appropriate general framework for judicial cooperation with any given third country’ and emphasised that all parties to the Convention align, at least to some degree, with EU law.
The European Commission’s recommendation is consistent with the EU’s red line on preserving the integrity of the single market, not necessarily on a legal basis but in terms of demonstrating and securing the benefits for EU members first.
In removing any attempt to negotiate on civil justice cooperation on family matters, the UK weakened the prospect of any cooperation in that area.
It is unclear whether the UK and the EU will each develop an external strategy to create instruments that facilitate transnational governance in family law matters.
EU member states could push back on the European Commission’s recommendation to refuse UK access to Lugano. But, so far, they have remained silent.
At EU level, family law matters remain politically sensitive. Furthermore, the development of EU private international law has been more concerned with facilitating intra-EU cooperation rather than with third countries. The Brexit negotiations highlight this, with possible detrimental outcomes for EU citizens who could face delays and increased costs in matters involving a UK national or child maintenance enforcement, now the UK is a third country.
The review of the Trade and Cooperation Agreement in 2025 may provide an opportunity to revisit the narrow proposal put forward by the EU in 2020.
Meanwhile, the House of Lords Justice Committee is engaging with the LIBE Committee in the European Parliament. Though informal, this political development may at least be a forum for increasing the salience of civil justice cooperation on family law matters, going beyond the focus on the economic dimension of civil justice cooperation, which appears to have dominated the concerns of each party in this field.
By Dr Cleo Davies, Senior Research Associate at the University of East Anglia.
You can see the full working paper ‘Negotiating the future: Understanding the absence of an agreement on civil justice cooperation in family matters’ via the UK in a Changing Europe website here.