EU Treaties form the constitutional basis of the EU and create the Single Market supported by the four freedoms of movement in goods, people, services and capital. The EU Treaties were implemented into UK law through the European Communities Act 1972 (« ECA »)
From a legal standpoint, by becoming a third state of the European Union, EU legislation is no longer applicable to the United Kingdom from January 1, 2021.
A. The impact of Brexit on family law
The impact of Brexit is limited in family law given that the UK did not ratify most of the EU regulation, such as :
- Regulation (EU) n ° 1259/2010, known as « Rome III », on the law applicable to divorce and legal separation, of Regulation (EU) n ° 650/2012 ,
- Council Regulation (EU) 2016/1103 of 24 June 2016 in matters of matrimonial property regimes,
- Regulation (EU) 2016/1104 of the Council of 24 June 2016 in matters for registered partnerships.
Therefore, in matters of law applicable to divorce, inheritance, maintenance obligations, matrimonial regimes or registered partnerships, Brexit will not change the current legal situation. Common private international law continue to apply.
Brexit will however have a noticeable impact in other areas of family law, for example :
- in matters of jurisdiction and the recognition and enforcement of divorce decisions
- or relating to parental authority.
Regulation (EC) No 2201/2003 (Brussels II bis Regulation) will continue to apply to the recognition and enforcement of authentic instruments drawn up or registered before January 1, 2021 (no exequatur, neither legalization nor apostle).
After this date, French authentic instruments will no longer be able to benefit from automatic recognition or enforcement in the United Kingdom (and vice versa). It will take resort to private international law as well as to the exequatur procedure.
However, the United Kingdom remains subject to the Hague Convention of 19 October 1996. Likewise, he will remain subject to the Hague Convention of 2 October 1973 on the recognition and enforcement of decisions in matters of maintenance obligations.
B. The impact of Brexit on other areas of civil law
The UK’s exit from the European Union will have consequences in the following areas:
- Regulation (EU) n ° 1215/2012 (Brussels I bis regulation) will continue to apply to the recognition and enforcement of authentic instruments drawn up or registered before January 1, 2021 (no exequatur or legalization, nor apostille). Subsequently, French authentic acts drawn up or registered from January 1, 2021 will no longer be immediately applicable and an exequatur must be obtained as well as an apostille. From January 1, 2021, the 1961 Hague Convention removing the requirement to legalize foreign public documents (known as the « Apostille Convention ») will apply between the Member States of the Union and the United Kingdom.
- Regulation (EC) No 805/2004 (European Enforcement Order for Uncontested Claims) will continue to apply to authentic instruments drawn up before January 1, 2021, provided that certification as a European Enforcement Order has been requested before the end of the transitional period (no exequatur, no legalization, no apostille). Subsequently, an exequatur must be obtained just like an apostille. From January 1, 2021, the Apostille Convention will apply between the Member States of the Union and the United Kingdom.
- The Withdrawal Agreement does not address Regulation (EU) 2016/1191 (Public Documents Regulation) which removes the legalization and apostille requirement between Member States for certain public documents (for example, a birth certificate ) and simplifies other formalities. The application of this regulation does not depend on the date of issue of the public document by the authority of one Member State, but on the date on which it is presented to the authorities of another Member State. Consequently, the Regulation will no longer apply to a public document issued by the UK authorities and presented to the authorities of a Member State of the Union after the end of the transition period, regardless of its date of issue and its period of validity. An illustration: the requirement of a « probate » in the context of an English or Scottish succession will now require the apostille (Apostille convention).
Source of the Conseil supérieur du Notariat.
