The impact of Brexit on Family Law in England and Wales- Divorce and Financial Proceedings

24-12-2020


As most will be aware, the UK left the European Union on 31 January 2020 with EU law continuing to apply until 31 December 2020. From 11pm on 31 December 2020, divorce and/or financial proceedings that are issued in England and Wales will be governed by domestic law and Hague Conventions rather than EU law. Problematically, the Hague Conventions do not offer a complete solution.

This article looks to answer questions about what Brexit means in terms of changes to divorce and financial proceedings.

Will the courts in England and Wales have the jurisdiction to deal with your divorce application?

Prior to 31 December 2020, where citizens of one EU state were living in another EU state, the court of the member state to whom the application was filed to first, would have had jurisdiction to deal with the divorce. Following 31 December 2020, there are no such rules. This mean where divorces fall into both the jurisdiction of England and Wales and of a member state that is not a signatory of the 1970 Hague Convention (discussed further below), there could be disputes over jurisdiction. This is by no means ideal and we will be keeping a close eye on developments in this area.

There are also changes to the jurisdictional grounds on which a divorce can be brought in England and Wales. When applying for divorce, you need to be able to show the court why you think the court has the legal power (jurisdiction) to deal with your application. The divorce application form also known as the D8 form, sets out the reasons you can rely on to show that the court has jurisdiction. After 31 December 2020 there are 2 key changes to the reasons that can be relied upon:

  1. Previously there was a requirement to be habitually resident (i.e. for England and Wales to be the place in which your life is mainly based with an intention to stay settled there). The person applying for divorce (the ‘petitioner’) now only needs to be resident in England and Wales to be able to apply for divorce without the need to show habitual residence.
  2. Previously applications based solely on domicile (i.e. on the basis that England and Wales is your main permanent home in which you live, or to which you intend to return) could only be used if no other EU member state had jurisdiction. Proceedings can now also be issued on the basis that your only domicile is England and Wales without the need to show a lack of EU links.

The more lenient rules mean that after 31 December 2020, more people will be eligible to apply for divorce in England and Wales.

If you got divorced in England and Wales, will the divorce be recognised in other EU countries?

Divorce obtained in England and Wales prior to 31 December 2021 was and is recognised in other member states.

Where the divorce has been issued before 31 December 2020 but the final order has not made until after this date, interim arrangements allow the divorce to be recognised in member states.

Where divorce proceedings started after 31 December 2020, the divorce will not automatically be recognised in other EU member states. This is where it gets a bit complicated. If a member state is also a signatory of the 1970 Hague Convention (Recognition of Divorces and Legal Separations), then this will allow the divorce to be recognised in that other signatory country, however, many of the EU member states are not signatories to the convention. Again we will be keeping a close eye on developments in this area.

If you got divorced in another member state, will your divorce be recognised in England and Wales?

Domestic law recognises most overseas divorces subject to few criteria but please contact us to check the specifics in your case.

Can an order for maintenance be enforced in other EU member states?

Maintenance orders obtained in England and Wales prior to 31 December 2020 were and are recognised in other member states.

Where proceedings have been issued before 31 December 2020 but the final order has not made until after this date, interim arrangements allow the order to be recognised in member states.

Where proceedings are issued after 11pm on 31 December 2020, enforcement will not automatically be available in other EU member states. If a member state is also a signatory of the 2007 Hague Maintenance Convention, then this will allow the order to be enforced in the signatory country, however, many of the EU member states are not signatories to the convention.

What if I issued proceedings before 31 December 2020 but the final order will not be made until after this date?

There are interim arrangements in place where divorce and financial proceedings have been issued before 31 December 2020, even if the final order has not made until after this date. Please read the relevant section of the article for more details.

Will there be more changes to these rules?

As this is a developing area of law, there are likely going to be more changes in the next few months and further considerations such as the impact if the UK re-joins the Lugano Convention. Please contact one of our solicitors for up-to-date and detailed guidance surrounding your matter.


Simon Fisher

Partner
Family Law

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