Divorce may involve parties from different countries. This is increasingly common. Such divorces can involve countries within the EU or elsewhere.
This Insight will set out the current rules in such circumstances. It will then examine the potential impact on getting divorced after Brexit – whether the UK leaves with or without a deal. How might Brexit affect getting divorced?
National law governs matters such as the grounds for divorce and how the property of the divorcing couple might be divided. This is unlikely to be affected by Brexit. However, Brexit might have an impact on the rules affecting procedural matters such as where a divorce takes place and which country's law applies. This is particularly likely in cases involving divorcing spouses from separate EU countries. Why is it important where a divorce takes place?
Where a divorce takes place can be very significant for the parties involved. The grounds for divorce, including, for example, how long a couple must live apart, differ from country to country. Also, the country where proceedings take place is sometimes more important for related financial proceedings than for the divorce itself. The courts in some countries, including England and Wales, have a reputation for being more generous than others to the financially weaker party. Which rules apply to cross-border divorce cases now?
A set of rules, intended to provide certainty and to avoid litigation in the courts of more than one country on the same dispute, ("civil judicial co-operation rules") govern:
- which country's law applies;
- which country's courts have jurisdiction to hear the case; and
- the recognition and enforcement in one country of a judgment obtained in another country.
These rules for divorce proceedings (among other things), across most of the EU, are set out in EU Regulation, Brussels IIa. The Justice Committee has described Brussels IIa as forming "the heart of cross-border family law in the EU". Another directly applicable EU Regulation, the Maintenance Regulation, sets out further rules.
The rules are based on the parties' domicile (nationality in some countries) and/or habitual residence. These terms have complex meanings. In general, 'residence' refers to where someone's life is mainly based – their physical location. 'Domicile' refers generally to the person's main permanent home where they live, or to which they intend to return.
When divorce proceedings are started both here and in a country which is not an EU Member State, the court must first decide which country's court should deal with the divorce – based on where the family has the closest connection. This issue can itself sometimes involve expensive and time-consuming litigation.
The 1970 Hague Convention on the Recognition of Divorces and Legal Separations provides rules for the recognition of divorces and legal separations.Getting divorced after exit day if there is a no-deal Brexit
In the event of no-deal, Brussels IIa would no longer operate on a reciprocal basis. EU Member States would not have to apply these rules to cases involving the UK, or to enforce or recognise decisions of the courts in the UK.
The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 were made on 6 March 2019 as part of the Government's preparations for a no-deal Brexit. They would come into force on exit day. In short, these regulations would revoke Brussels IIa for England and Wales and Northern Ireland except in relation to cases which are ongoing on exit day. For new cases, existing international conventions and a combination of new and pre-EU domestic rules would apply instead.
Separate regulations, the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019, would apply the same rules on jurisdiction, recognition and enforcement to divorce of same sex couples and civil partnership dissolution as would apply to divorce of opposite sex couples.
The Government has published guidance which deals with the practical effect of no-deal Brexit on family law disputes.What will be the position after exit day if there is a deal?
The Government envisages revoking these new statutory instruments if a deal is reached. The terms of any Brexit deal would establish which rules would apply after exit day.
The proposed Withdrawal Agreement, which has not been endorsed by the House of Commons, provides that the current EU rules would continue to apply to cases started before the end of the transition period. The associated Political Declaration states that the parties would explore options for judicial cooperation in matrimonial, parental responsibility and other related matters.
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