London has long been a popular destination for cross-border divorce, mainly due to the courts of England and Wales not making any discrimination between the breadwinner and homemaker and the fairness of the decisions arising from the courts of England and Wales. However, the ramifications of a Brexit may well change that. The Brexit cliff edge is nearly upon us and one of the most important aspects of divorce, particularly for custodial parents, that of maintenance, will change and some important differences will emerge. The guidance found on the UK government website makes it clear that for cross-border divorce cases which start after Brexit there is still an element of uncertainty as to whether reciprocal arrangements will be made and the EU will uphold and honour decisions in certain aspects of family law made in the courts of England and Wales.
The decision to divorce can never be an easy one, especially cross-border divorce involving children. However, if this is a position you are considering it may be a very good idea to start a case before Brexit as after Brexit there are either unknown quantities or known problems. The lawyers in Giambrone's family law team feel that it, therefore, seems far more practical to start the process whilst the procedures are clear and can be navigated with reciprocal arrangements.
The Government has drafted some advice which as far as it can be understood for individuals who are undergoing cross-border divorce and for those who are considering it. We have outlined the position for both pre and post-Brexit based on the Government's advice
Jurisdiction for maintenance cases ongoing at the point of a no-deal Brexit
England and Wales
The no-deal Brexit legislation has saving and transitional provisions to the effect that cases which have started under the EU rules in the Maintenance Regulation will continue under those rules.
EU Member States
The European Commission guidance says that legal proceedings involving an individual domiciled in the UK that is underway at the time of Brexit will be completed under the current EU rules. For proceedings underway where the respondent is domiciled in the UK, the jurisdiction rules relating to the EU Maintenance Regulation will apply.
Jurisdiction for Maintenance Cases that start after a no-deal Brexit
England and Wales
The EU Maintenance Regulation 4/2009 will be automatically revoked by no-deal Brexit legislation. The court in England and Wales will then decide whether it has jurisdiction under the rules governing domestic law; unless the couple involved have agreed on the choice of law between themselves. The rules can differ depending on the type of maintenance.
EU Member States
The European Commission states that should the proceedings involve a defendant domiciled in the UK, unless an EU instrument sets out the rules of jurisdiction for third countries, international jurisdiction will be controlled by the national rules of the Member State court. It further recommends seeking legal advice from a lawyer knowledgeable in local legal advice find out the law the court will apply.
The all-important question of enforcement of maintenance orders not entirely clear and will be dealt with in-depth in another article in the series.
If you would like to know more about how an ongoing cross-border divorce will continue or how a new divorce will be dealt with please click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.