The family law consequences of Brexit

On December 3, 2020, at the annual meeting of the European Judicial Network in civil and commercial matters (Réseau judiciaire européen en matière civile et commerciale), I spoke on the round table on the consequences of Brexit, covering family matters, alongside Estelle Cros and Marie Vautravers among others. With the transition period ending within weeks, the goal was to anticipate what would change for Franco-British family disputes. Here are the key takeaways, along with the presentation materials.

What changes and what does not

Brexit has no effect on the private international law rules for matrimonial property and succession: the United Kingdom did not take part in the enhanced cooperation under Regulation 2016/1103 and was not bound by Succession Regulation No. 650/2012. It was, however, bound by the Brussels II bis Regulation, for divorce and parental responsibility, and by Maintenance Regulation No. 4/2009: those are the areas affected.

Transitional provisions soften the blow. The EU regulations remain applicable until December 31, 2020 and, on the UK side, the 2019 regulations keep Brussels II bis and the Maintenance Regulation in place for proceedings started before January 1, 2021, and keep the Maintenance Regulation where the English courts were chosen under its Article 4. EU law is also incorporated into English law by the European Union (Withdrawal) Act of June 26, 2018, with two limits: incompatible provisions may be repealed, and UK courts are no longer bound by CJEU case law handed down on or after the end of the transition period (December 31, 2020, 11 p.m.), which creates a risk of diverging interpretations of connecting factors, starting with habitual residence.

Jurisdiction: the end of EU lis pendens

The EU grounds of jurisdiction can no longer found the English court's jurisdiction in the eyes of a French court. The residual rules become applicable to found the French court's jurisdiction: Article 7 of Brussels II bis for divorce, Article 14 for parental responsibility, Article 6 of the Maintenance Regulation for maintenance. The 1980 Hague Convention on international child abduction, for its part, still applies.

Above all, EU lis pendens (litispendance) under Article 19 of Brussels II bis and Article 12 of the Maintenance Regulation no longer operates with the UK. A French court seized second applies the international lis pendens rule of Article 100 of the French Code of Civil Procedure: declining jurisdiction is merely discretionary. Race-to-the-courthouse strategies are no longer available with England, and the risk of parallel proceedings grows. My practical advice: use choice-of-court clauses for maintenance, in particular in a marriage contract or prenuptial agreement, after checking their recognition and enforcement on both sides of the Channel.

Applicable law: uncertainty over maintenance

For parental responsibility, nothing changes: the Hague Convention of October 19, 1996 binds the UK. Nor for divorce: the UK did not take part in the Rome III Regulation, which French courts keep applying universally. Maintenance, however, becomes uncertain. The UK was never bound by the Hague Protocol of November 23, 2007, in which it did not take part even as a Member State, and it has not ratified the Hague Convention of October 2, 1973 on the law applicable to maintenance obligations; on September 28, 2020 it ratified only the Convention of November 23, 2007 on the recovery of maintenance and the 2005 Convention on choice of court agreements. English courts will therefore apply their own conflict rules, which argues for choice-of-law clauses in the prenuptial agreements of Franco-British couples.

Circulation of judgments: back to conventions and exequatur

Two Hague conventions take over between France and the UK: the Convention of November 23, 2007 on the recovery of maintenance, which the UK ratified in its own right and which, between the states party to it, replaces the Convention of October 2, 1973 on the recognition and enforcement of decisions relating to maintenance obligations, and the Convention of October 19, 1996 on parental responsibility and the protection of children. Outside those conventions, ordinary law applies: an English divorce judgment is recognized automatically in France, but enforcing it requires an exequatur application and a check of the three conditions of international validity (French Supreme Court, 1st Civil Chamber, February 20, 2007, Cornelissen).

In conclusion, I stressed lawyers' heightened duty to advise in Franco-British family disputes, pending the outcome of negotiations failing a global agreement: accession to the 2007 Lugano Convention, bilateral treaties. This analysis reflects the law as it stood on the date of the presentation.

Key takeaways

1. 1Areas affectedDivorce, parental responsibility and maintenance; neither matrimonial property nor succession.
2. 2End of EU lis pendensA French court seized second no longer has to decline jurisdiction: the risk of parallel proceedings grows.
3. 3Clauses to favorChoice-of-court and choice-of-law clauses for maintenance, checked on both sides of the Channel.
4. 4Children still covered by conventionsThe 1980 and 1996 Hague Conventions continue to apply.
5. 5Exequatur is backOutside the conventions, enforcing an English judgment in France requires an exequatur application.
6. 6A dated analysisIt reflects the law as of December 3, 2020 and must be updated before any decision.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.