Changes to the divorce process following Brexit


27 October 2021

For the past 18 months the news has understandably been dominated with headlines about the global COVID-19 health pandemic. However, there have been a couple of important changes to family law as a result of Brexit which may have gone largely unnoticed. In this article we share a brief overview of the key changes which have taken place.

The issue of where you are domiciled

One of the advantages of the UK leaving the EU is that it is now easier for couples to get divorced in England and Wales. If one party is ‘domiciled’ there (that is to say that their permanent home is in England and Wales), then that will now be sufficient in order to issue a divorce petition. This is regardless of where their spouse is domiciled, what their nationality is, or where the petitioner is living. The practical effect of this is that it has enabled individuals who were not previously eligible to issue divorce proceedings within England and Wales to do so.

First past the post rule – a thing of the past?

Previously, if couples resided in different EU member states, it was common for there to be more than one country in which you could choose to issue divorce proceedings. 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. 

However, as a result of Brexit, the first past the post rule no longer applies and there is now a new rule to determine which country should have priority. That means for the countries in question, they will now decide for themselves whether to proceed with the divorce. The courts in England and Wales look at the most ‘convenient’ forum for the proceedings – examining factors such as where the parties are presently living, where the majority of their assets are held and where the couple work etc. The other European country will apply their own national law to determine whether they should retain jurisdiction for the proceedings.

As a result, a new issue which is likely to arise moving forwards is that both countries could decide that they are suitable venues for the proceedings, and the parties may end up with two different sets of divorce proceedings which are running concurrently together. This change in legislation is therefore likely to cause a significant increase in litigation over which jurisdiction is the most appropriate, and in some cases will result in a substantial increase in costs for the parties.

Decree Absolute – is there automatic recognition?

Prior to Brexit, a divorce obtained in England and Wales was automatically recognised in other EU Member States. However, given that the UK formally left the European Union on 31 December 2020 (when the transition period ended), divorces in England and Wales are no longer automatically recognised by other EU countries.

There is a Convention in place (The Hague Convention on the Recognition of Divorces and Legal Separations) which seeks to achieve this recognition, but only 12 out of the 27 EU Member States are signatories to it and it does not apply to either civil partnerships or same-sex marriages. Countries such as France, Germany and Ireland are not signatories to the above convention, and as a result orders made in either England or Wales in relation to divorce proceedings will not be automatically recognised in those jurisdictions. Consequently, there may be costly, complicated and time-consuming proceedings in both relevant countries to ensure that a divorce or other form of separation is legally recognised.

Summary

For those that are likely to have an international element involved in their divorce, it is important that they obtain legal advice early on in the process from a Family Solicitor. If there is more than one option as to where the divorce proceedings could be issued, close attention will need to be paid to the financial implications, as well as any practical issues such as attending hearings, the impact on wider family and importantly the enforceability and recognition of any orders which are made.

If you would like to know more about the topics discussed in this article, please do not hesitate to contact a member of the Birketts’ Family Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.

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