Family Law & Brexit: Any progress?

The UK Parliament continues to debate the EU Withdrawal Bill, which will introduce EU law (including all relevant family law provisions) into domestic legislation at the moment the country leaves in 2019. Although details remain vague at this stage about how this will happen, the Government has indicated that it wishes to maintain a “deep and special partnership” with the EU and recognises the importance of ensuring that family law is high on the Brexit agenda. This is vital given that one million Brits currently live in the EU and 3 million EU citizens reside in the UK.

The Government has produced two papers “Providing a cross-border civil judicial cooperation framework” and “Enforcement and dispute resolution” which highlight a number of issues with the overall approach, but confirms that reciprocity between the UK and the EU is absolutely essential.

In response to the Government, a group of the largest family law organisations in the UK (including Resolution (the national body of Family Lawyers), the Family Law Bar Association (the national association of family law barristers) and the International Academy of Family Lawyers) have published a joint report setting out their recommendations for a successful family law Brexit. A copy of the report entitled “Brexit and Family Law” can be found here. The report concludes, not unexpectedly, that the best possible outcome will involve the UK retaining all EU family law provisions, complete reciprocity between the UK and the EU, and an ongoing role for the Court of Justice of the European Union (the “CJEU”).

Unfortunately, at the time of writing, it appears that the Government have not taken on board the recommendations save possibly that the CJEU will continue to have a role in the transitional period. However, it is hoped that the House of Lords will force the Government to reconsider the position.

Ongoing family law cases and cases started prior to 2019

The Government has given some guidance on what it believes the interim position will be. This provides some clarity for international families currently going through the UK Courts, or thinking about bringing a dispute now:

• Where there are ongoing proceedings in the UK, the UK Court will continue to deal with the matter and will not put those proceedings on hold if the other party brings proceedings in another EU country. This is good news if you are currently in the middle of international family law proceedings, or are thinking of bringing them within the next 12 months;

• If there is a marital or prenuptial agreement providing that maintenance be dealt with in another EU member state, the English Court cannot take jurisdiction and will recognise the decision of another EU member state. This is positive news if you have an existing marital agreement which provides that a particular EU country deal with your financial needs; and

• Existing decisions concerning children, divorce, and maintenance will be recognised and enforced, as will those decisions made after the withdrawal date if proceedings were already underway. Again this is good news if you have a current order, as it will continue to be recognised and enforced in the future.

It also looks likely that other EU member states will adopt the same approach in reverse.

Future Enforcement of family law orders and prenuptial agreements

The Government has reiterated the desire for certainty for individuals with ongoing family law disputes and for them to be able to enforce their rights. As such, the rights of those with existing decisions and those which will be decided before the withdrawal date are likely to be protected. However, the future is looking less certain, with the possibility of families embarking on proceedings after we leave the EU being left in limbo.


Although there is now some certainty over what the transitional family law provisions will involve, there are still many unanswered questions and gaps as the date for the UK to leave the EU draws nearer.

If you are part of an international family and are considering getting divorced, separating from a partner, moving abroad with your children or need advice in relation to contact issues with your children, or are looking to enforce an order made in the UK or abroad, or are thinking of getting married and want to protect your assets via a prenuptial or similar agreement and have international assets, it is imperative that you get advice from an international family law specialist. It is essential to consider whether you should take action prior to the UK leaving the EU, as it remains unclear if and how the law will change.

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