Brexit and Family Proceedings – Divorce and Financial Matters

December 3, 2020, By Slater Heelis

Our International Family Law specialist, Dorota Beange, explains the changes to the laws around divorce and other family proceedings after Brexit.

There are currently around 3.5 million citizens from the European Union living in the UK. We have witnessed a significant increase in cross—border marriages over the last 20 years and consequently numerous matrimonial matters with a cross-jurisdictional element. These matters involving EU nationals are governed by EU laws; from 11pm on 31st December 2020 this will no longer be the case.

The change in the rules will affect the country in which family law disputes can be heard and how decisions made in one country will be recognised and enforced in another. Consequently, within England and Wales, this will apply to divorce, including financial relief cases, matters in regard to children including child abduction and cases of child maintenance.

Current Rules

Under the existing jurisdiction rules within EU law (EU Council Regulation 2201/2003, also known as “Brussels IIA”), parties to a marriage could issue divorce proceedings in a number of different Member States – there was a choice to issue the divorce in a country whose domestic laws were better suited to their particular case.

The jurisdiction in relation to divorce and finance proceedings depended on who was first in time to issue the case, thereby avoiding parallel proceedings. Additionally, at the end of the case, a decree of divorce and the majority of financial orders were guaranteed to be recognised, under EU laws, in another Member State without the need to implement any special procedures.

New Cases

After the end of the transition period (from 1st January 2021), the court in England and Wales will recognise divorces granted in EU Member States in the same way as they currently do for orders from non-EU countries, under the 1970 Hague Convention on Divorce Recognition which was implemented in our domestic law.

The recognition in an EU member state of a divorce order granted in England and Wales in proceedings which were started after the end of the transition period will be governed by each member state’s national rules of private international law, unless they are party to the 1970 Hague Convention, in which case the rules of that Convention apply. Parties should seek local legal advice.

Only 12 of the existing EU member states are signatory to the 1970 Convention (Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden) and that Convention, although useful, still makes the recognition process more complex than under Brussels IIA rules.

There will also be a change to our law in relation to the jurisdictional grounds for bringing a divorce. The current grounds will be slightly expanded making it easier to bring a divorce petition in England and Wales from 1st January 2021.

Ongoing cases

If divorce/ financial proceedings are issued in England and Wales or an EU country before 11pm on 31 December 2020, these proceedings will continue under the current EU rules (even if the process is finalised after 11pm on 31 December 2020). When the divorce becomes final, it will be recognised in England and Wales or an EU country under the current EU rules.

If one applies for a divorce in England and Wales or an EU country after 11pm on 31 December 2020 the new rules will be applicable.

Contact our international family law specialists

If you have any questions about how Brexit may impact a cross-border divorce, contact our team. Our international family law specialists will be happy to explain your options and guide you through the whole process.

Call us on 0161 969 3131 or fill in our confidential contact form, and one of the team will be in touch.