Brexit & divorce – where are we now?
The news last year was understandably dominated by COVID-19; lockdowns, restrictions, and advice for social distancing. Meanwhile, in line with the UK’s exit from the European Union, there were important changes being made to international family law as a result of brexit, which may have gone unnoticed. Here we share a brief summary of the key changes to divorce law, which you may need to know.
Who can now issue divorce proceedings in England and Wales?
One of the advantages of Brexit is that it is now easier to get divorced in England and Wales. If one party is domiciled in England or Wales, then that is sufficient jurisdiction to issue a petition. This is regardless of where their spouse is domiciled, what their nationality is, and where the petitioner is living. This has enabled people who were not eligible before, to issue petitions, but there are issues along the way to be aware of.
What happens if you live in two different countries?
Previously, it was common for there to be jurisdiction in more than one country in which to issue a divorce petition. The EU Regulations included the first-past-the-post rule, so that if divorce proceedings were issued in two different EU countries, the one which was issued first would proceed and the second would be stayed. Upon leaving the EU, that rule no longer applies. If divorce proceedings are issued in two different countries, there is now a rule to determine which country should have priority.
This ultimately means that each country will decide for itself whether to proceed with the divorce. The English courts look at the most ‘convenient’ forum for the proceedings, for instance, where are the parties living, where are the assets located etc. The other European country will apply their own national law to determine whether they should have jurisdiction. This could result in both countries deciding that they are both suitable venues for the proceedings and the parties could end up with two sets of proceedings running concurrently in two different countries.
This change is likely to cause an increase in litigation over where the proceedings should be taking place. In turn, this will lead to greater uncertainty in the jurisdiction which will apply and will make it harder for families to resolve their issues. This will naturally increase costs and tensions may run high.
Recognition of decree absolute
Previously, EU Member States recognised divorces obtained in other EU States. As England and Wales is no longer collectively a Member State, it’s divorces will not be recognised automatically. There is a Hague Convention which seeks to achieve this recognition, and this will continue, but only a handful of EU Member States are signatories and it does not apply to civil partnerships. Those countries who are not signatories will apply their own national law in determining whether they recognise an English divorce.
This is likely to have significant consequences, necessitating additional advice in second countries, which will naturally increase costs for the client.
If proceedings commenced before the transition period, then the previous (or ‘old’) EU rules can be relied upon when enforcing any resulting order, as they are still recognised. For those involved in new proceedings, enforcing a resulting order may prove to be difficult. Luckily, the existing Hague Convention that will assist but it is a rather convoluted process and there are many opportunities for the uncooperative spouse to evade payment therefore it will be more difficult, and expensive, to enforce an order than previously.
Going forward, it is important for clients to take advice early on, and where there are clear international elements involved, to carefully consider advice from not only a specialist family lawyer in England and Wales but also, any other relevant country. If there is more than one option to issue proceedings, attention will need to be paid to the financial implications as well as practical issues, such as attending hearings, impact on the wider family and the enforceability, and recognition, of the order made.
Get in touch
Anyone with cross-border issues involving an EU member state should take legal advice to ensure that they have all of the information required to move forward.
If you would like any advice on divorce after brexit, or other family law issues, please do contact our Client Care Team to speak to one of our specialist divorce lawyers.