Family Law: How will Brexit impact my divorce?

Dec 9, 2020

The UK left the EU in January this year, however, all EU laws and Regulations relating to divorce and family law will continue to apply until 11pm 31st December 2020, whilst we remain in the ‘transition period’.

For those of you who are currently divorcing or planning to divorce, the purpose of this article is to set out what you need to be aware of and to remind you that we will guide you every step of the way. There are two key areas which will be impacted, firstly the jurisdiction for divorce, i.e. which country you can get divorced in and secondly how divorces in the UK will be recognition of UK divorces abroad.

Jurisdiction for Divorce

At the moment, whilst we remain in the transition period, the law on where you are entitled to bring a divorce (known as ‘jurisdiction’) remains the same and is governed by an EU law known as Brussels IIA.

This law basically states that you are allowed to bring divorce proceedings in a particular EU country (we are notionally still considering England and Wales to be an EU country as this law still applies until the end of the year) if you can show that one of the following criteria are met in relation to that particular country:

a. You and your spouse are habitually resident in that country (in simple terms, this means living here); or

b. You and your spouse were last habitually resident there and one of you still resides here; or

c. Your spouse is habitually resident there; or

d. If you were to make a joint application, either of you are habitually resident here; or

e. You have been habitually resident there for at least a year immediately before your application is made; or

f. You have been habitually resident there for at least six months immediately before the application was made and are domiciled there, or

g. You and your spouse are both domiciled there

The concept of ‘domicile’ is something your solicitor can discuss with you.

Where you are able to show that you can meet the criteria above for more than one EU country then your lawyer will advise you on which country is best for you to issue proceedings in. They would almost always take advice from a foreign lawyer on this point, in order to help you make a fully informed decision.

Sometimes, where both parties can see advantages to issuing a divorce in two different EU countries, there can be a ‘race’ to secure jurisdiction, and the first person to secure jurisdiction in their country of choice ‘wins’ the race and their divorce will proceed in that country. This is because there is an EU rule which states that the first party in time to issue proceedings at court secures the jurisdiction of the court in a particular country.

Impact of Brexit on Jurisdiction for Divorce:

Right now, the position under Brussels IIA still applies.

However, from 1 January 2021, the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 will come into force to replace Brussels IIA.

The new law follows Brussels IIA as the intention was to maintain a very similar position as pre-Brexit, however, it is not entirely the same, and you may need to obtain specialist advice from a family solicitor in order to discuss whether you can establish you have jurisdiction to bring a divorce in England and Wales if you have close ties with other countries. It is expected that the majority of people looking to divorce in England and Wales even after 31st December 2020 will have jurisdiction to issue proceedings here if they would have had jurisdiction under Brussels IIA, so please do not be alarmed by the new law. The best thing to do is speak to a family solicitor as soon as possible if you have concerns over jurisdiction.

Another thing that will change from 1st January 2021 is that where parties are ‘racing’ to secure jurisdiction in two different EU countries, the EU rule which states that the first party to issue proceedings in a country will secure jurisdiction will no longer apply in the UK. Instead, we will have a new rule which states that the country with the ‘closest connection’ to the divorce will have jurisdiction.

It remains to be seen how the courts will handle such situations in practice, and again, if you are considering a divorce and you think your spouse may potentially try and petition in another country, it is important that you speak to a family solicitor now for advice on how to proceed. Timing could be key – do you issue proceedings before 31st December 2020 whilst the rules remain the same, or do you wait until 1st January 2021, when the rules will change?

Post-Brexit, jurisdiction to make a claim for financial remedies following divorce is likely to be a key consideration when deciding where to petition, and is something your solicitor will discuss with you.

Recognition of UK divorces abroad

At the moment, and until 31st December 2020, the position set out in Brussels IIA still applies. This means that UK divorce orders will be automatically recognised in the EU (except Denmark), and the UK will recognise divorce orders made in the EU.

For divorce proceedings issued from 1st January 2021 onwards, the rules will be governed by the 1970 Hague Divorce Recognition Convention. This means that UK divorces will be recognised by countries which have signed up to the Convention (as long as the requirement of the Convention have been met) and the UK will recognise divorces ordered from countries which have signed up to the Convention.

You should however be aware that not all EU countries have signed up to the Convention. For those 15 EU member states which have not, recognition of divorce orders will depend on their national law, which means that where this may be an issue for you, your family solicitor will take steps to speak to a local lawyer. The same applies vice versa, although it should be emphasised the UK is quite liberal in its recognition of foreign divorces.

Your family solicitor along with a lawyer in the other potential jurisdiction will advise you on whether it could be a good idea to initiate divorce proceedings before the end of the year to make sure that your final divorce order will be recognised across the entire EU as per the current rules.

If you would like to speak to a member of our Family team about any of the issues raised in this article, please do contact us on +44 (0)1276 686 222, or use the contact form below.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter. 

Amanda Phillips-Wylds

Amanda Phillips-Wylds

Partner, Head of Family Law

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