The Impact Of Brexit On Divorce Proceedings Where There Is A Cross-Border Element – Briefing Paper Released By The House Of Commons

As was previously the case prior to the UK leaving the EU, divorce laws in England and Wales will continue to abide by national legislation, so there will be no substantial changes in legislation as a direct result of Brexit.

However, Brexit may have an impact on divorces involving a UK-EU cross-border element, such as the jurisdiction where a divorce takes place and the recognition and enforcement of certain divorce orders.

‘The effect of Brexit on getting divorced’ briefing paper

The House of Commons has recently published a briefing paper, entitled ‘The effect of Brexit on getting divorced’, which provides a summary of the rules in England and Wales which affect divorce proceedings where there is a cross-border element. This includes proceedings concerning residents or nationals of EU Member States.

The briefing paper does not cover family law matters which relate to children or maintenance payments.

Previous international divorce laws

Under pre-existing laws, English and Welsh Courts had the jurisdiction to rule on divorce proceedings based upon the separating parties’ domicile and/or habitual residence.

Domicile is a legal point which takes into account not only where you were born but also where you are living now and what your intentions are for the future. Habitual residence, on the other hand, refers to where you live and are based for the majority of the time.

Divorce proceedings with an international aspect is a particularly complicated area of law, as financial settlements and other outcomes differ from country to country. One particular situation may produce a very different result depending on where the divorce takes place. This can have a huge impact over who gets what, as not all Courts are the same across the world.

In many instances, consideration may need to be given to which country’s laws are applicable to the divorce proceedings, specifically with regards to which nation’s Courts have jurisdiction to hear the proceedings, and how a judgment obtained in one country is recognised and enforced in another country.

Should divorcing parties issue proceedings in either England or Wales and also in another country, then the English and Welsh are able to halt the proceedings, so it can consider what jurisdiction should deal with the case (known as the “lis pendens” rules).

EU Member States operate under the Brussels IIa provisions and the Maintenance Regulation. This means that in the circumstances in which proceedings have been initiated in one Member State, the Courts of another Member State are required to halt any additional and equivalent separation proceedings until the necessary jurisdiction of the relevant Member State can be determined.

In the main, divorce judgments in one EU Member State are recognised in another EU Member State without the need for any special procedure.

The UK was and still is a Contracting State to a variety of Hague Conventions with regards to family law. This also includes the 1970 Hague Convention on the Recognition of Divorces and Legal Separations which outlines the laws for the recognition of divorces and separations.

Divorce proceedings initiated prior to the end of the transition period (11pm on 31^st December 2020)

For all proceedings commenced prior to the UK’s withdrawal from the EU, the Brussels IIa provisions in relation to jurisdiction will continue to apply.

Once a divorce case becomes final, it will be recognised in England and Wales or an EU country under EU laws.

Divorce proceeding issued after the end of the transition period

Following the UK’s withdrawal from the EU, The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 came into force and applies to all new divorce proceedings issued after 11pm on 31^st December 2020.

The new regulations will replace:

• The existing Brussels IIa legislation for England, Wales and Northern Ireland;
• The Maintenance Regulation for the UK;
• Provisions in UK legislation which implemented the above EU Regulations.

The new regulations outline the laws in relation to jurisdiction for new divorce cases, changing the “lis pendens” rules (mentioned previously), so that they no longer apply only to EU Member States but now apply to other (non-EU Member State) countries also.

With regards to the rules relating to the recognition of divorces, these will now be governed by the 1970 Hague Divorce Recognition Convention. As a result, UK divorces will be recognised by countries which have signed up to the Convention. This will also apply the other way round with the UK recognising divorces from other Hague Convention countries.

However, only 15 countries across the world have signed up to the Convention (12 of which being EU Member States –  Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden). For countries who are not signed up to the Convention, the recognition of an English or Welsh divorce will be dependent upon their national law. In such cases, it is recommended that legal advice is sought from a solicitor in that country.

In respect of a divorce obtained overseas and whether it will be recognised in the UK, the same approach will apply. However, the UK tends to be fairly liberal in how it recognises divorces obtained abroad.