Rachael Kelsey: Brexit Implications for family law II – the age of the Convention

Rachael Kelsey

Before the festive break, Rachael Kelsey did her first update on the implications of Brexit for family law, giving a general overview of where we are with the three most likely political outcomes. Things are moving apace and there was a significant, if under the radar, development on 28th December 2018, relating to both child and spousal maintenance.

The UK government moved to try and ensure that the UK will continue to be able to benefit from the provisions of the 2007 Hague Maintenance Convention (lawyers whose practice extends beyond pure family should note that these developments also cover the 2005 Hague Convention on Choice of Court Agreements too) in the event of No Deal/Withdrawal Agreement.

At the moment child and spousal maintenance fall under the EU Maintenance Regulation. We already have a draft SI which will revoke the EU Maintenance Regulation on Exit Day, in the event of No Deal (if we do end up with the Withdrawal Agreement, we will continue to apply the EU Maintenance Regulation until the end of the transition period). The intention of the UK government therefore, in the event of No Deal, is to try and ensure that the 2007 Hague Maintenance Convention will be there to fill in some of the gaps left by us losing the EU Maintenance Regulation.

The UK participates in the 2007 Convention at the moment by virtue of membership of the EU (the EU having approved the Convention on behalf of Member States). The 2007 Convention covers much, but not all, of the ground covered by the EU Maintenance Regulation. Essentially the EU Maintenance Regulation is an enhanced version of the 2007 Convention for EU Member States, so for interactions between Member States preference is given to the EU regime, rather than the 2007 regime.

It is far from clear that the UK government can competently do what they purport to have done on the 28th December 2018 (but consideration of that is, well, even more dull than consideration of the differences between the EU Maintenance Regulation and the 2007 Convention), but let’s proceed for the moment on the basis that there is No Deal and that the UK government plan works, so that the 2007 Convention comes into force after we have left the EU. What will this mean, in practical terms?

  • There will be a two-day gap where there is no coverage – the ratification of the 2007 Convention will not come into force until 1st April 2019 (no comment). The thinking is that this should be a non-issue, given that the gap falls over a weekend;
  • If you have a spousal maintenance order to enforce that was made on the back of jurisdiction being founded on domicile (rather than habitual residence) you can’t have it recognised or enforced under the 2007 Convention (in contrast to the EU Maintenance Regulation). This is clearly less good- and likely to become a bigger issue, given the Scottish government’s proposals to change the jurisdictional rules to the pre- Brussels IIa regime;
  • The legal aid cover for recognition and enforcement under the 2007 Convention is less good than that under the EU Maintenance Regulation;
  • The ‘first past the post’ benefits of the EU Maintenance Regulation are not replicated in the 2007 Convention, which doesn’t have jurisdictional rules- so you can end up with competing proceedings in more than one jurisdiction and conflicting judgments. If you can found jurisdiction in two EU countries at the moment the court that is first seized will take precedence and the other proceedings will be sisted/stayed until conclusion of the first action. The order can then be readily enforced in the other member state. That means only one set of proceedings to pay for, and easy, legally aided enforcement if necessary. Post Exit Day, when we only have the 2007 Convention, so there may be a race to conclude proceedings in two jurisdictions and less good recognition and enforcement provision.

The main takeaway, again, is that you should be doing a file check now (not a bad way to ease into the new year anyway). In the event of No Deal or Withdrawal Agreement, your clients will have fewer options than they do at the moment, and you don’t want to be the one to be telling them that they could have done something if you hadn’t procrastinated…

SKO Family Law Specialists

  • Rachael Kelsey is a director at SKO Family Law Specialists. She splits her time between Edinburgh and London and is and president-elect of the European Chapter of the International Academy of Family Lawyers.