Chamber and committees

EU measures have not generally made provision which affects the substance of family law. Instead, they have tended to concentrate on areas such as the mutual recognition of judgements across the EU. This has provided welcome certainty and clarity for families. Details on various EU measures are outlined below.

The EU Brussels IIa Regulation (Regulation 2201/2003) covers matters such as the mutual recognition across the EU of divorce and parental responsibility judgments; jurisdiction in these cases; and child abduction. This Regulation is currently being re-cast, with the revised Regulation due to come into force in 2022. It is uncertain at this stage whether or not the re-cast Regulation will apply to Scotland.

The EU Maintenance Regulation (Regulation 4/2009) contains jurisdictional rules for maintenance claims and provision on recognising and enforcing spousal and child maintenance orders and binding maintenance agreements.

The EU Regulation on the mutual recognition of protection measures in civil matters (Regulation 606/2013) is a measure to protect those at risk of domestic abuse by recognising civil protection measures (e.g. interdicts) across the EU.

The EU Regulation on simplifying the requirements for presenting certain public documents (Regulation 2016/1191) has just come into force. This Regulation simplifies the requirements for presenting certain public documents in the EU, such as birth, marriage or death certificates.

To ensure that necessary provision is in place, the Scottish Government has made Scottish Statutory Instruments to take effect if the UK should leave the European Union without a deal, including in relation to the Brussels IIa Regulation and the equivalent provision for same sex relationships. The Scottish Government has also consented to a number of UK Statutory Instruments at Westminster, including in relation to the Maintenance Regulation. The Justice Committee has published a report on the secondary legislation on civil (including family) and criminal law it has considered to date in relation to a potential no deal Brexit. This report is at https://sp-bpr-en-prod-cdnep.azureedge.net/published/J/2019/5/3/What-a--no-deal--Brexit-means-for-civil-and-criminal-law-in-Scotland---a-summary-of-subordinate-legislation-considered-by-the-Justice-Committee-to-date-1/JS052019R12Rev1.pdf

In relation to family law, there are a number of international Conventions, known as the Hague Conventions, which provide a reasonable fall-back if the EU measures should cease to apply to Scotland.