In a way Brexit is similar to a Divorce, in that two parties are going their own separate ways after a long time together. However Brexit itself is having an effect on divorce proceedings, where there is an international element, in this country. The House of Commons Library recently published a briefing paper on what happens with Brexit when there is a cross-border element involved.
rhw have dealt with a number of complex international divorce cases in the past and so the changes are of interest to us and our clients.
Brexit has affected UK-EU cross-border divorces in matters of where a divorce takes place and ‘the recognition and enforcement of orders relating to divorce.’
The rules for the Courts in England and Wales to deal with divorce are based on the ‘domicile’ or ‘habitual residence’ of the parties. Most parties involved in a divorce are domiciled in England or Wales. However, divorce may involve nationals and residents of other countries and quite often between high net worth individuals. Some of these will be in the EU, some further afield.
When divorces proceedings are issued in England and Wales and overseas, the Courts in England and Wales has discretion to halt the proceedings if it considers, on the balance of fairness, that the divorce should be dealt with in the other jurisdiction.
The EU Regulations with regard to cross border divorces include “first in time” rules (“lis pendens”) which operate on a reciprocal basis. Basically where proceedings have been started in one Member State, the courts of other Member States are required to halt any subsequent equivalent proceedings until the jurisdiction of the first court has been determined.
During the transition period, the treatment of divorce cases commenced, whether in the UK or in an EU Member State, before the end of the transition period (11pm on 31 December 2020) were governed by the Withdrawal Agreement.
Divorce Cases post-Brexit
The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 (as amended) (the Regulations) came into force on 31 December 2020. The Regulations revoked previous EU legislation.
The Regulations set out rules of jurisdiction, largely based on the previous EU rules, which apply to new divorce cases in England and Wales. They replace the “lis pendens” rules as well. The discretionary stay provisions that previously applied only in cases involving a non-EU Member State now apply more generally post the UK leaving the EU.
Again, the rules relating to recognition of divorces are also those which previously applied only in cases involving non-EU Member State countries. This ends the different approaches to EU and other countries worldwide. The rules on recognition are to be found in the Family Law Act 1986.
States currently party to 1970 Hague Convention are: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden. The recognition of a divorce obtained in England and Wales in other EU countries will now be dependent on their national law.
The Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019, deal with dissolution of civil partnership and divorce of same sex couples post Brexit.
Please call rhw’s family law team on or email
