The Impact of Brexit on Divorce

The UK officially left the European Union on the 31^st of January 2020 and the transition period is now over. Now that a deal has been made with the EU, how does this affect divorce proceedings?

Many people do not know that divorce in England and Wales is founded on the jurisdictional requirements of EU law, called Brussels IIA. Brussels IIA rules determines which Court is responsible for dealing with matrimonial matters in disputes involving more than one country. There are, therefore, two main areas which will be impacted in divorce proceedings. Firstly, the jurisdiction for divorce, i.e. which country you can get divorced in and secondly how divorce in the UK will be recognised abroad.

Jurisdiction

Before the 1^st of January 2021, the jurisdiction rules set out in Article 3 of Brussels IIA applied to all cases of opposite sex divorce, legal separation, and annulment in England and Wales. This means you were allowed to bring divorce proceedings in a particular EU country if you could prove one of the following:

1. You and your spouse live in that country;
2. You and your spouse were last living there and one of you still resides here;
3. Your spouse is living there;
4. If you were to make a joint application, either of you are living there;
5. You have been living there for at least a year immediately before your application is made;
6. You have been living there for at least 6 months immediately before the application was made and are domiciled there; or
7. You and your spouse are both domiciled there.

However, as of the 1^st of January 2021, the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 has now come into force to replace Brussels IIA. This means the Courts in England and Wales now have the discretion to stop or pause proceedings when there are divorce proceedings continuing in another jurisdiction.

Another thing that has changed from 1st January 2021 is that where parties are in competition to secure jurisdiction in two different EU countries, the EU rule which states that the first party to issue proceedings in a country will secure jurisdiction, will no longer apply from the UK’s perspective. Instead, the country with the ‘closest connection’ to the divorce will have jurisdiction. Please note that how the courts of each EU member states will respond from 1 January 2021 where a divorce is lodged first (or otherwise) in England will depend on their national law. 

Furthermore, sole domicile as a ground of divorce jurisdiction has also been added.

Recognition

Prior to the 1^st of January 2021, UK divorce orders were automatically recognised in the EU (except Denmark), and the UK also recognised divorce orders made in the EU, in the same way under Brussels IIA.

However, as of the 1^st of January 2021, the rules under Brussels IIA are now governed by the 1970 Hague Divorce Recognition Convention. This means that UK divorces will only be recognised by countries which have signed up to the Convention and the UK will recognise divorces ordered by countries which have signed up to the Convention. The 12 EU member states that are currently signed up to the 1970 Hague Convention on Divorce Recognition are Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden.

Finally, please note that if the divorce was granted before the transition period or if the divorce proceedings started before the end of the transition period, the Courts in England and Wales will continue to recognise divorces granted in EU member states in the same way under Brussels IIA.

Here at Franklins, our experienced solicitors will be able to advice you if you need assistance in deciding where to bring your divorce proceedings. Please contact our Family Team on 01604 828282 / 01908 660966 or email Family@franklins-sols.co.uk.