The laws surrounding divorce is governed by national legislation, as it has always been, even before the U.K left the European Union (EU). It is anticipated that the Divorce, Dissolution and Separation Act 2020, which will reform divorce laws in England and Wales will be implemented in Autumn 2021. This will alter the way in which a divorce petition has to be presented and will allow a ‘no fault’ procedure more akin to ‘irreconcilable differences’ seen in The States. At present in England and Wales, a petition has to be based on adultery, unreasonable behaviour or after a lengthy period of separation. This change will assist couples in keeping matters as amicable and conciliatory as possible.
Brexit is likely to affect UK-EU cross border divorces in issues such as in which jurisdiction i.e. where a divorce takes place and the recognition of that divorce. Brexit may also affect the enforcement of Court Orders in relation to financial matters upon divorce.
When considering where the divorce takes place (i.e. in which jurisdiction) the Courts look at where the couples are habitually resident or domiciled. Divorce can however involve nationals and residents of different counties, within the EU or elsewhere. If this is the case, then careful consideration needs to be given as to which country has the jurisdiction to conduct the case and how a judgement obtained in one country might be recognised and enforced in another country.
It is sometimes possible to commence divorce proceedings in both England and Wales and in another country. The EU regulations which previously dealt with family law matters had a “first in time” rule which meant that, if proceedings were commenced in one EU country, the Courts of any other EU country had to halt their proceedings until the jurisdiction of the first Court had been decided. Generally speaking if a judgement is made in one EU country then the judgement is recognised in other EU countries.
The Brexit transition period ended at 11pm on 31 December 2020. If your divorce commenced before 31 December 2020 then the old EU rules govern your divorce and there will be no changes.
The new regulations came into force on 31 December 2020. The Regulations revoke the old EU regulations which govern divorce. The new regulations set out rules of jurisdiction which are predominately based on the old EU regulations; they also replace the ‘first in time’ rule. This means that you can no longer apply for a divorce in the country which is more beneficial to you, but you would need to apply in the country you and your spouse have more of a connection with.
If you apply for your divorce after 1st January 2021 then the rules for recognition of divorce are found in the 1970 Hague Convention. Currently there are 12 countries which are members of the Hague Convention; Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden. These countries will still recognise your divorce after the transitional period. If however, your divorce is not from these countries then you may need to apply to get your divorce recognised.
The recognition of a divorce obtained in England and Wales in other EU countries will be dependent on their national law.
If you have connections to an EU country we recommend you seek legal advice as soon as possible. Domicile is very complicated and you should seek legal advice to ascertain your country of domicile as it will have an impact on your case.
Please note that this is how the law currently stands. We anticipate that there will be further changes which will affect divorce, financial proceedings and even children proceedings. We would therefore urge you to seek legal advice as soon as possible.
If you need any advice about divorce or financial settlements please contact Jasdeep Nagra, Solicitor in the Family Law department, at email@example.com or on 0345 20 73 72 8.