Continuing uncertainty over a no-deal Brexit next month has spurred a fresh wave of guidance for family lawyers who have been told they may need to start seeking advice from local lawyers in other EU member states.
After publishing no-deal guidance last year, the Law Society has published a joint note with family law group Resolution following discussions with Sir Andrew McFarlane, president of the family division.
The note covers divorce, maintenance orders, financial applications proceedings on sole domicile jurisdiction, pension sharing and children.
Family solicitors are told that the recognition of UK divorces in EU member states is an area where practitioners may need to take 'urgent action'.
Civil divorces are currently recognised throughout the EU by EU law. However, this would not apply if the UK leaves the union without a deal. Around half of the EU member states who, along with the UK, are signatories to the 1970 Hague Convention are 'highly' likely to recognise divorces in England and Wales. However, France, Germany and Spain are among the 15 member states who have not ratified the convention.
The note says: 'Again it is difficult to conceive why a civil divorce from England and Wales will not be recognised in these member states which have automatically recognised previously through EU law. But practitioners should take advice from local lawyers in applicable cases to ascertain if there would be any problems with recognition of the decree absolute, as made by a English or Welsh civil court, after the involvement of a respondent by proper service and fully complying with relevant divorce procedure. These are likely to be cases where one of the parties is a national of these 15 member states or for other good reasons likely to require recognition of their divorce in that country such as intending to live or work subsequently in the country or have real property there.'
Where there is 'real concern' that a divorce may not be recognised in another member state, practitioners are advised to consider obtaining a decree absolute before 29 March. If a decree nisi has been granted, but the decree absolute is due to be granted after 29 March, solicitors should consider 'abridging time'.
The note also states that recognition and enforcement may depend not just on a UK order being made before 29 March but also a certificate to be filed with the relevant foreign court.
Meanwhile the Ministry of Justice and Foreign & Commonwealth Office today published guidance on family law disputes, including divorce and child maintenance, with someone living in the EU if a no-deal Brexit occurs.
On parental responsibilities, the government says that if a case about child arrangements is ongoing in an EU court or needs to have judgments accepted in an EU country after 29 March, this may need to be done in a different court or under a different procedure.