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Question

103. Deputy Jim O'Callaghan asked the Minister for Justice and Equality the consideration given to the effect of the non-application post Brexit of Regulation 2201/2003 on recognition of divorces and child abduction cases involving the UK and Ireland; and if he will make a statement on the matter. [7233/19]

Answer

Minister for Justice and Equality (Deputy Charles Flanagan): My Department has been engaged in an analysis of the impact of Brexit on the area of civil justice, including family law. In that regard, consultation is ongoing with the Office of the Attorney General, relevant Government Departments, State bodies and other stakeholders, and the European Commission.
The Deputy will be aware of the European Commission Notice to Stakeholders, as published on 18 January 2019, which sets out the consequences in the field of civil justice and private international law in the event that there is a “no deal” Brexit. That notice can be accessed at the following link:
https://ec.europa.eu/info/sites/info/files/notice_to_stakeholders_brexit_civil_justice_rev1_final.pdf
EU Council Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (also known as the Brussels II bis or the Brussels IIa Regulation) provides for EU judicial co-operation and recognition and enforcement of judgments in cross-border matrimonial matters. This will be affected by the withdrawal of the UK from the European Union since, absent a withdrawal agreement that covers these areas post-Brexit, the UK will essentially become a third country. Among the areas of family law covered by this instrument are foreign divorce recognition, child abduction and custody of, and access to, children.
A person who is, or is likely to be, relying upon this Regulation in a cross-border family law case involving the UK on or after the withdrawal date of 29 March should consider seeking legal advice as to how the withdrawal may impact upon the circumstances of his or her particular case.
In some areas of family law, there are international conventions that will apply to proceedings involving Ireland and the UK and which will provide a substitute for the existing EU Regulation. The 1980 Hague Convention on the Civil Aspects of International Child Abduction will continue to apply as between Ireland and the UK. The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children will also continue to apply.
Insofar as the recognition in Ireland of divorces obtained in the UK is concerned, the Domicile and Recognition of Foreign Divorces Act 1986 sets out the circumstances in which a divorce granted in a non-EU jurisdiction on or after 2 October 1986 will be recognised. Under section 5 of the 1986 Act, a divorce shall be recognised in Ireland if it was granted in the country where either spouse was domiciled at the date of the institution of the divorce proceedings. Thus in a “no deal” Brexit scenario, the UK will in effect become a non-EU jurisdiction and the basis for recognition in Ireland of divorces obtained in the UK will, under the 1986 Act as it now is, become domicile as opposed to the current position under the relevant EU regulation, which is habitual residence.