After all the stress and uncertainty brought about by the lockdowns, the excitement of vaccinations, summer and the lifting of restrictions Brexit has somewhat fallen by the wayside.
However, the legal implications of Brexit particularly in the family law field are wide ranging and important if you are contemplating divorce. Since leaving the EU our legal relationship with Europe, where divorce is concerned, is no longer governed by EU Council Regulation 2201/2003 (more commonly known by the equally catchy name of “Brussels IIA”).
Under Brussels IIA if you were an EU national you had the choice to commence your divorce proceedings either in England (or Wales with whom we share the same laws) or in the European country to which you had a connection either because you were “habitually resident “in that country or you were “domiciled “there. In short habitual residence is where you have settled (i.e. where you work or where your main family life takes place) and domicile is where your permanent home is in which you live or to which you intend to return.
The country in which your divorce proceedings could progress depended entirely upon whether you or your spouse won the race to start your divorce proceedings in the EU country of your choice. If you won that race and got your divorce application into an English court first, for example, then the court of the other EU country was compelled to put the divorce proceedings taken in that country by your spouse on hold.
Since leaving the EU the first past the post system no longer applies. New cases are now governed by the Jurisdiction and Judgements (Family) (Amendment etc) (EU exit) Regulations 2019. The new rules came into force on the 31st December 2020.
If a divorce case now comes before an English court and there are parallel divorce proceedings in another country also, the English court will have to decide whether on the balance of fairness (including convenience) it would be appropriate for the divorce proceedings in the other country (whether EU or otherwise) to continue instead. The court must consider “all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed.” This can now result in expensive and time-consuming court action in different countries with arguments in each country over why the divorce proceedings should take place there.
There is a risk also that if the English court decided that it had the legal authority to deal with divorce and financial matters, the judgements of the English court would not be recognised in the EU if your spouse started separate divorce proceedings in an EU country first.
You might ask why it matters where you get divorced. The choice of court can be fundamentally important because those divorce proceedings will dictate where the financial provision following the divorce will be settled. The English court is often considered to be more generous to the financially weaker spouse so such spouses who have a choice of court may want their divorce and financial matters dealt with here rather than in the EU.
The effect of Brexit on family law is complex and it continues to evolve.
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