CYIL vol. 11 (2020)

CYIL 11 (2020) THE WITHDRAWAL ACT OF 2018 AND THE EUROPEAN JUDICIAL AREA … between the country and those remained in the Union. Although this risk exists at least in part, it should not be overestimated: First of all, the two acts have already been applied for many years and a rich practice has therefore been formed concerning them which has now given a solution to less clear questions, also influencing in this regard British jurisprudence; moreover, the same maintenance of the regulations as EU-retained law demonstrates the will of the United Kingdom to maintain in its system of private international law a uniform regime that offers certainty to international transactions, an objective achievable only if the interpretation and application of the two tools maintains equally uniform character. These are Brussels II-bis, in matrimonial and parental responsibility matters and Regulation 4/2009 55 on maintenance obligations, as well as some related acts 56 . Also, in this case the reason lies in the reciprocity of the functioning of the two regulations which naturally could not be maintained after Brexit unless a specific agreement is negotiated in this regard. With regard to matrimonial matters, however, the Regulations substantially maintain the rich range of jurisdictional criteria of the Brussels II-bis Regulation, omitting only the criterion based on the habitual residence of only one of the spouses in case of joint application. The circulation of decisions will instead apply again in relations between the United Kingdom and the member states of the EU which are parties to the Hague convention of 1 June 1970 on the recognition of divorces and legal separations 57 . Similarly, the Hague Convention on 23 November 2007 on the international recovery of child support and other forms of family maintenance 58 , relating to the circulation of decisions relating to maintenance obligations and their recovery abroad 59 will be applicable in the a for mentioned reports. There is no doubt that the cessation of the application of Regulation Brussels II-bis will cause the English courts to lose the relevant role they played in the field of dissolution of marriages, which has allowed London to be considered the European capital of divorces. Some British law firms that have in recent years set up a real business in this area will suffer the consequences, also attracting the attention of the media 60 . On the other hand, the competition between legal systems induced by European standards in this matter, and in particular by the wide range of jurisdictional criteria provided for by the Brussels II and Brussels II-bis regulations, also played a role in stimulating the simplification of procedures in the various Member States of the Union: As is well known, the conditions for obtaining 55 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10.1.2009, pp. 1-79. 56 The United Kingdom has not participated in the enhanced cooperations on the basis of which Regulation 1259/2010 on the law applicable to divorce and personal separation and Regulations 2016/1103 and 2016/1104 concerning the property regimes of marriages and registered partnerships respectively have been adopted. It is also not a party to the 2007 Hague Protocol on the law applicable to maintenance obligations. It has therefore always applied its internal conflict rules in these matters. For a broad analysis of the consequences of Brexit on

private international law and judicial cooperation in family matters. 57 https://www.hcch.net/en/instruments/conventions/full-text/?cid=80. 58 https://www.hcch.net/en/instruments/conventions/full-text/?cid=131. 59 STONE, P. Stone on private international law in the EU, op. cit.

60 see Rapisarda v Colladon , [2014] EWFC 35. This incident leads one to suspect that in the United Kingdom the checking of the conditions of jurisdiction is carried out in a rather superficial way. For further details see: STONE, P., Stone on private international law in the EU, op. cit., MILES, J., GEORGE, R., HARRIS- SHORT, S. Family law. Text, Cases and Materials , (Oxford University Press, Oxford, 2019). PROBERT, R., HARDING, M. Family and succession law in England and Wales , (Kluwer Law International, New York, 2018).

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