New Year, New Rules – Brexit, Divorce and Cross-Border Cases

 

The end of transition period in the UK was marked at 11pm on 31^st December 2020. As we moved into the new year and in the absence of a bespoke arrangement with the EU regarding family law affairs, the EU laws governing family law ceased to apply as between the UK and the EU Member States. The upshot of this is that, for new cases started after 1^st January 2021, we can no longer rely on the EU Regulations which sought to harmonise the law relating to jurisdiction (whether the court has the power to deal with your divorce) and which allowed the mutual recognition of divorces across the EU.

In place of these EU Regulations, we revert to a combination of national laws and international conventions to guide us on jurisdiction for family law matters and for the enforcement and recognition of court orders – a steep learning curve for many lawyers let alone the individuals we represent.

Following on from Associate Hannah Greene and Professional Support Lawyer Carla Ditz’s blog ‘Brexit and divorce proceedings – what do I need to know?’ , this blog focuses on the post-Brexit changes that international couples should be aware of when divorce is contemplated.

Jurisdiction

In order to start divorce proceedings in the UK, you need to satisfy the rules relating to jurisdiction (ie. establishing whether the court has the power to deal with your legal dispute).

Pre-Brexit

Before 31^st December 2020, these rules were derived from EU law, namely the framework provided by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – abbreviated to Brussels IIa.

Brussels IIa harmonised the rules relating to jurisdiction within the EU (including intra-UK). In so far as the place or forum for divorce was concerned, this meant that, where divorce proceedings could be brought in more than one country (based on habitual residence or domicile of the parties), it would be the court first seized that would secure jurisdiction, the so called ‘lis pendens’ rule. This led to jurisdiction races between couples, in pursuit of securing the jurisdiction which was most favourable to them on divorce.

On 1 January 2021, all this changed. So what are the headline changes and how might it affect your divorce if there is a cross-border element?

Post-Brexit

Brussels IIa has been revoked as EU law ceases to apply. Instead, domestic law in the form of section 5 of the Domicile and Matrimonial Proceedings Act 1973 (as amended) will now be relied upon to establish jurisdiction.

The grounds for jurisdiction are largely the same as contained in Brussels IIa except for the removal of a “joint application” ground and the addition of a ground permitting jurisdiction based on the domicile of just one of the parties (‘sole domicile’). This has the effect of widening the jurisdictional rules.

Before discussing the grounds for jurisdiction in a divorce, it is worth mentioning that the ‘race to court’ to commence proceedings in a particular or more favourable jurisdiction (mentioned above) will no longer apply. The test instead will be based on ‘Forum Non Conveniens’ or the country with which the parties have a ‘closest connection’. Whilst this arguably may be a fairer way to determine where the proceedings should be heard, it may also lead to disputes (and therefore costly litigation) about which country will now be the most appropriate forum to hear the case. This type of situation already exists in relation to non-EU countries such as the US and Canada so it is nothing new in this respect but is now of relevance with our EU neighbours. (Having said this, there is still some uncertainty about how EU countries will treat proceedings which are issued first and whether this may still take precedence). It is likely that issuing first will still be at the least a factor to consider even if it is not determinative.

Back to the jurisdictional grounds, a divorce can be commenced in the UK if you satisfy one or more of the following:

1. both parties to the marriage are habitually resident in England and Wales;
2. both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
3. the respondent is habitually resident in England and Wales;
4. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
5. the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
6. both parties to the marriage are domiciled in England and Wales; or
7. either of the parties to the marriage is domiciled in England and Wales (‘sole domicile’)

One of the main changes since the UK left the EU is the promotion of ‘sole domicile’ as a primary ground to establish jurisdiction. Whilst this may be a development in extending the jurisdictional grounds, caution should be taken as it may cause difficulty as regards the recognition of the divorce abroad as well as the enforcement of any consequential maintenance orders which are made by the English courts.

This helpfully leads us on to…

Recognition

For international couples, it is entirely plausible that you may require your divorce granted in England to be capable of recognition in an EU country. This will be the case for example, if you wish to subsequently remarry abroad. Recognition of a divorce abroad can also be  particularly important in cases where there are international assets and one is seeking to enforce in other jurisdictions.

Pre-Brexit

Regulation Brussels IIa provided for the automatic and mutual recognition of divorces granted in EU Member States across the block. There was no need to take any further action to evidence your divorce granted in England and Wales in the other country and vice-versa as regards a divorce granted in another EU member state.

Post-Brexit

A divorce granted in England no longer benefits from automatic recognition across the EU. In the absence of Brussels IIa, we will instead rely on the provisions of the 1970 Hague Convention where you are seeking to have your English divorce recognised abroad. However, there are some limitations. One significant drawback is that only approximately half of EU countries are in fact signatories to this Convention. Those countries which have not signed up to the Convention include France and Germany so a different legal mechanism will be in place (governed by their respective national law) where recognition of foreign divorces is concerned. Further, the 1970 Hague Convention does not apply to civil partnership dissolutions nor the nullity decrees.

As with any case with an international dimension, local advice from a lawyer in the country in question should always be obtained to fully understand the position.

Financial settlements on divorce

Without going into any great detail in this blog, we will touch upon the changes in relation to the jurisdiction to make financial orders in connection with the divorce and the enforcement of these orders abroad post Brexit (in the situation where the paying party is in breach and steps need to be taken to enforce an order).

Pre-Brexit

Prior to January 2021, the jurisdiction, recognition and enforcement of financial orders made in an EU member state was governed by the EU Maintenance Regulation. Like the Brussels IIa Regulation, the Maintenance Regulation created a common framework to be observed across the EU (save for Denmark in certain cases). It further facilitated the process whereby a divorce and financial order made in one country could be enforced in another country.

Post-Brexit

The EU Maintenance Regulation no longer applies. Instead, jurisdiction (the power of the court to make a financial order) will be determined by national law and the enforcement of maintenance orders will be a matter for the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance Hague Convention, an international instrument.  The result will be a less straightforward process when it comes to the enforcement of financial orders and again, local advice should be obtained from a lawyer in the relevant jurisdiction.

It should be noted that where divorce proceedings were initiated before 11pm on 31^st December 2020, the ‘old’ rules will continue to apply even if proceedings are ongoing and where a divorce and a financial order is yet to be concluded.

(Finally, it is worth briefly mentioning that another international convention called the 2007 Lugano Convention will cause us to reconsider again the rules relating to forum and jurisdiction, recognition and enforcement if the UK becomes a member in its own right (having previously been a signatory under the umbrella of the EU). Until such time as we have certainty about our accession to this Convention and when this might happen, we will look to national laws and the 2007 Hague Convention.)    

The Ministry of Justice has produced helpful guidance for family law disputes involving the EU and the House of Commons Briefing Paper issued on 20^th January 2021 provides an outline of the new rules in divorce cases where there is a cross-border element.