With a looming general election in which Brexit promises to be the central issue, the nature and timing of the UK’s ‘divorce’ from the EU are more uncertain than ever. What is certain is that a “no deal” Brexit would involve wide ranging changes to the UK legal system, some of which may affect the way in which divorces and maintenance obligations are dealt with in the UK courts.
In this article, we look at the current contingency plans for a “no-deal” Brexit to examine what this would look like for those involved in divorce and maintenance proceedings. Please also see our separate note “Family law and Brexit Part II: Private Children” in relation to how Brexit may impact children law.
These are complex issues and seeking specialist family legal advice is recommended. If you would like to discuss this article or require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty and Alexandra Wilks.
Divorce after a no-deal Brexit
Divorce jurisdiction
If divorce proceedings have already begun in England and Wales by the time the UK leaves the EU, they will continue to proceed as normal under Brussels Council Regulation 2201/2003, also known as as ‘Brussels II bis’, which is the EU regulation governing where divorce and maintenance proceedings should be conducted when the law of two or more member states may apply. There will be no need to take additional steps as a result of Brexit.
If a divorce is started after the UK has left the EU, the old rules found in Brussels II bis will no longer apply. However, steps have already been taken to introduce new rules into UK law which effectively replicate the old EU law provisions on where to commence a divorce petition.
There should therefore be no change in the way in which a party applies for a divorce save that individuals will also be able to petition for a divorce based on a party’s sole domicile in England and Wales (see our previous article on International Divorce Part II for an explanation as to the meaning of ‘domicile’ (hyperlink)).
The other key change applies to circumstances in which there may be competing divorce proceedings between England and Wales and another EU country. Currently the party who lodges the divorce petition first in time will ensure that the divorce takes place in the EU Member state where it has been lodged. In the event of a no-deal Brexit, the “first in time” rule will not apply and the chosen forum for the divorce will be based on identifying the country to which parties have the “closest connection” – this is the test that applies to competing divorces between England and Wales and a non-EU state.
Recognition of divorce orders made in EU member states
The courts of England and Wales should continue to recognise divorces ongoing in EU Member States at the time the UK leaves the EU in much the same way that it does now, provided that recognition proceedings have already started.
As to those divorces which commence in EU Member States after a no-deal Brexit, the courts of England and Wales should recognise those divorce orders in the same way that they are recognised from non-EU states.
It is not anticipated that this should pose a significant problem as the UK is already fairly liberal in its approach to recognition of a foreign divorce, provided it is obtained in the appropriate legal manner for that country.
You can contact us today (hyperlink) to get advice about the appropriate means of registering a foreign divorce in England and Wales.
Recognition of English divorce orders in EU Member States
The EU Commission has issued guidance stating that UK legal orders (including for divorce) made in the UK before Brexit day will need to be registered in an EU member state in order to be recognised and enforced in that EU Member State.
If UK divorce orders are obtained after the UK leaves the EU, their recognition and enforcement will depend upon the national laws of the EU Member State; unless they are party to the 1970 Hague Convention on divorce recognition.
If you are likely to be affected by this issue, we recommend that you seek local legal advice in the relevant EU member state about how to ensure that a divorce order is recognised and enforceable in that member state after the UK leaves the EU.
Maintenance after a no-deal Brexit
The EU Council Regulation No.4/2009 known as the ‘Maintenance Regulation’ currently deals with maintenance obligations between family members, including between separated/divorce spouses and those relating to child maintenance. The Maintenance Regulation essentially means that court orders for maintenance made in one EU member state are recognised and enforceable in other EU member states.
In the event of a no-deal Brexit, the Maintenance Regulation will continue to apply to those cases which were already ongoing in England and Wales at the time of Brexit, although maintenance orders made in the UK will now need to be registered in an EU Member States in order to be enforceable in that member state.
The Maintenance Regulation would not apply to new cases starting in England and Wales after a no-deal Brexit. The courts will instead rely on domestic legislation and the 2007 Hague Maintenance Convention in relation to recognition and enforcement of maintenance orders – all EU Member states are currently signatories.
Note – In the event that the UK leaves the EU on the terms of a withdrawal agreement or on a ‘no deal’ basis on 31 January 2020, the contents of this note may need to be revised.
If you would like to discuss this article or require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty and Alexandra Wilks. You can call us on 020 3909 8100, or use our contact form.
The article image is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license. It was created by Christolph Scholz.