Brexit & Divorce

November 23, 2020, By Slater Heelis

Actual divorce, not the ‘divorce bill’.

The prospect of a no-deal Brexit is fast becoming a daunting reality as the end of the transition period inches closer. With that in mind, divorcing couples who have a cross-border element to their marriage may wish to take advantage of the current rules governing divorce in England and Wales before it is too late.

Starting proceedings before transition period ends

In order to make use of the current law, divorce proceedings must be issued in England or Wales before the transition period ends at 11pm on 31 December 2020. This means not only must the petition have been sent to court, but the papers must have also been processed. Due to the backlog of paperwork currently faced by the courts, this could take a number of weeks.

At present, divorce and matrimonial finance cases can proceed in England or Wales if one party to the marriage is domiciled in the jurisdiction. ‘Domicile’ could mean they were born there and have substantial connections there too, for example through family ties. This applies even if the individual no longer lives there.

Similarly, if the other party has sufficient links to another competing jurisdiction, the couple may have more than one option as to the country in which they issue.

This is an important decision. The rules of each jurisdiction may dictate the outcome of the financial settlement on divorce. Thus, you may have a situation where a spouse instigates divorce proceedings in a particular country in the belief that they are likely to achieve a more preferable financial outcome in that country.

Who makes the first move?

Provided divorce proceedings are issued in England or Wales first, and before expiration of the transition period on 31 December 2020, the current rules mean that it would be compulsory for the courts of England and Wales to stay the proceedings and see the divorce through, even if matters are finalised beyond this date.

After 31 December 2020 the rules are set to change. Even if one party petitions for divorce in England or Wales before the other does in an alternate jurisdiction, the courts will have discretion to stay proceedings.

This decision will be formulated by the court after consideration of the parties’ connections to each country, and disputing the outcome could involve very costly litigation.

For these reasons, couples considering divorce should think carefully and act quickly if they would like their divorce to go through the English or Welsh courts. Any unnecessary delay could mean the decision is taken out of their hands following 31 December 2020.

Contact a divorce specialist

Our family law team comes extremely highly recommended due to their thorough, friendly approach towards a solution that works for all people involved.

We are based in Manchester but in the modern environment we can act on behalf of clients from anywhere in England & Wales.

To find out more about starting divorce proceedings before the Brexit transition period ends, please fill in our contact form and one of the team will be in touch.