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Time to act: Brexit transition and divorce

Brexit transition and divorce: As the clock ticks ever closer to the end of the Brexit transition period at 11 pm on 31 December 2020, separating couples with links to another EU member states may need to act sooner rather than later.

How will divorce law change?

Following the UK leaving the EU, rules governing where a divorce petition can be issued are changing.  

Currently, if a divorce application is filed in England by someone the day before their spouse files one in France, the French courts must suspend proceedings, and the English court will have jurisdiction.  That will no longer be the case come 1 January 2021. 

Current regulations also mean that divorces in one member state will, generally, be automatically recognised in another. In practice,  this means that a divorce in England will be viewed as a divorce in France without there needing to be any formal recognition process. 

This will continue to apply to any case started during the transition. For example, if a divorce begins in England on 30 December and concludes in 2021, it will be recognised in all EU member states without the need for any special registration procedure and vice versa. 

However, this position becomes extremely murky following the expiration of the transition period.  

The family court in England and Wales will only have the discretion to suspend proceedings where there are competing proceedings in another jurisdiction. 

This decision will depend on which is the most appropriate country for the proceedings to take place and may lead to a greater number of cases where the jurisdiction is contested, creating uncertainty and increasing costs for divorcing couples. 

Family court judges may continue to view jurisdiction as they are bound to do currently, but time will tell. 

What about related financial proceedings? 

The country where a divorce takes place is important as it will usually determine where any related financial proceedings take place. 

The law surrounding finances after divorce varies hugely, meaning that the country where the proceedings take place can have a drastic impact on the final settlement. 

England has become known as the “divorce capital of the world” due to the courts traditionally being more generous to the economically weaker party than elsewhere.  However, judges are now frequently using phrases such as “meal ticket for life” in their judgments, and the tide may well be turning where that is concerned.

Brexit transition and divorce – recognition of EU judgments

As for the recognition of judgments made in the member states, the position will depend on the country involved.

For the 13 out of 27 Member States including Italy, Poland and the Netherlands – which, like the UK, have signed up to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, judgments made in one country will automatically be recognised in another. 

For the remaining countries, including those with close ties with England and Wales such as Ireland, France and Germany, there is no provision for automatic recognition. 

Importantly, the Convention does not apply at all to same-sex marriages, civil partnerships or nullity cases, meaning there is no direct recognition of judgments in those cases. 

This may lead to costly, complicated and time-consuming proceedings in both relevant countries to ensure that a divorce or other form of separation is legally recognised. 

Securing and enforcing financial orders 

The end of the transition period will also change the rules around financial orders made following divorce. This is particularly relevant where one party is to pay maintenance – either spousal or child maintenance – to another, when one party lives in the UK and the other in an EU member state.

This is likely to be hugely complex, involving detailed consideration of the legal position in both countries and could potentially cause great difficulties if one party needs to enforce an order due to their ex failing to pay the monies owed. 

Get in touch

While no–one should ever be pushed into deciding to end their relationship before they are sure that it is truly over, anyone with cross-border issues involving an EU member state should take early legal advice to ensure that they are aware of the consequences that the end of the transition period may have on their situation.

If you would like any advice on the Brexit transition and divorce or other family law issues please do contact our Client Care Team to speak to one of our specialist divorce lawyers.

Matthew is a Senior Associate and was noted in the Legal 500 for being ‘excellent’ and thinking ‘through cases very carefully to make very sound tactical decisions.’ His specialism is resolving financial issues following a divorce or separation and he frequently advises clients on cohabitation issues. He is based at our Liverpool office.

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