101 UK Brexit Notes

Connemara Programme October 16 2018 pg. 112 While there are some differences between the EU and Hague rules in these areas, the Hague Conventions provide an effective alternative to the EU rules. Families and individuals may wish to take legal advice as to how these changes may relate to your circumstances. Family law cooperation without corresponding Hague Conventions In some areas of family cooperation there are no relevant Hague Conventions to fall back on. In most of these cases, we would repeal the EU rules and proceed as follows. Currently divorce jurisdiction in UK is primarily based on the Brussels IIa rules for all cases. An additional basis for jurisdiction, the sole domicile of either party to the marriage, is only available as a basis of jurisdiction if no other EU court has jurisdiction. In England, Wales and Northern Ireland we would repeal the Brussels IIa rules. The different bases for divorce jurisdiction set out in Article 3 of Brussels IIa (save for joint application which is not applicable) would be replicated in English, Welsh and Northern Irish domestic law so that these bases apply for England, Wales and Northern Ireland for all cases. The additional basis of sole domicile of either party, would be available for all cases. The Scottish Government is considering the best approach for Scotland in the area of divorce jurisdiction. The EU ‘lis pendens’ rules which require courts to halt divorce proceedings if an EU court has already begun to consider the case, would be repealed for all parts of the UK as they would not be reciprocated by the EU courts. Instead the courts in each UK jurisdiction would decide which is the most appropriate court to hear a case, as they currently do for cases outside the scope of Brussels IIa. These changes in divorce jurisdiction and recognition provisions would be replicated for same sex marriages and civil partners in all applicable parts of the UK. We would also retain domestic rules that allow for the UK to provide a divorce or dissolution jurisdiction of last resort for cases where the couple formed their relationship under the law here and other states do not recognise their same sex marriage or civil partnership. For decisions in relation to the jurisdiction for maintenance cases, we would intend broadly to adopt the position prior to the introduction of the Maintenance Regulation and other EU rules. The jurisdiction grounds of this would vary depending on the type of maintenance sought and in which part of the UK the case is brought. All parts of the UK would unilaterally recognise incoming Civil Protection Measures from EU countries, to ensure that vulnerable individuals would continue to be protected. The impact of these changes on individual families would vary dependent on their circumstances and, if appropriate, you may wish to seek legal advice on what steps to take. EU instruments covering both civil and family matters We would also repeal the EU Service Regulation and the Taking of Evidence Regulation, which both rely on reciprocity to operate. However, we would apply the equivalent Hague Conventions in this area, to which the vast majority of EU countries are party. Finally, we would repeal the legislation implementing the Mediation Directive and the Legal Aid Directive. The effect on ongoing civil and family cases We will seek to provide legal certainty for businesses, families and individuals who are involved in ongoing cases on exit day. Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, we cannot guarantee that EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. Individuals with cases in progress on 29 March are encouraged to seek legal advice on how this may affect them. EU civil judicial instruments and international agreements The UK applies a number of different EU instruments which make up our current civil judicial system. These cover rules for civil and commercial disputes, including insolvency, and for family law matters.  Brussels Ia Regulation (1215/2012): rules which determine which EU country’s courts hear cases in civil and commercial matters (jurisdiction); and rules which enable judgments to be recognised and enforced across borders  Brussels IIa Regulation (2201/2003): rules about which EU country’s courts should decide matrimonial and parental responsibility matters; the recognition and enforcement of judgments; administrative cooperation; and cooperation in child abduction cases  Maintenance Regulation (4/2009): rules about which EU country’s courts should make decisions in maintenance matters; recognition and enforcement of child, spousal and other forms of family maintenance decisions; and administrative cooperation and assistance  Insolvency Regulation (2015/848): rules about jurisdiction, applicable law and recognition of insolvency proceedings in cross-border insolvencies  Service of Documents Regulation (1393/2007) and Taking of Evidence Regulation (1206/2001): rules to facilitate the service of legal documents in civil and family judicial proceedings involving parties in more than one EU country and rules about cooperation between the courts of EU countries in taking of evidence in civil and commercial judicial proceedings