Family Solicitor Rebecca Hick discusses the effects of Brexit on EU family law.
As we are all aware, the UK left the EU on 31st January 2020 with the subsequent transition period ending at 11pm on 31st December 2020. As such, EU law no longer applies to family law cases in our courts. Instead, we have reverted to common law and international conventions such as the 2007 Hague Conventions, which were implemented before we entered the EU. These are arguably outdated and no longer fit for purpose.
This article seeks to give you a snapshot into how Brexit will affect divorce, financial remedy and children proceedings with an inter-EU element.
If your divorce was granted or proceedings just started before
the end of the transition period, EU law will continue to apply to
However, if your divorce proceedings commenced after the end of the transition period, there are a few changes you should be aware of:
- The first in time rule no longer applies. Previously, EU law required that where proceedings had been issued by the parties in different member states (this is common when parties are citizens of one member state but living in another), the court where the proceedings were issued second in time had to stay the proceedings before them. Courts in England and Wales now have discretion to stay proceedings if there are already proceedings in another jurisdiction, but it is not mandatory. We can also no longer turn to the Court of Justice of the European Union to decide such matters. It will be down to each national state to determine where the proceedings should continue. This will largely depend on which state the parties have a closer connection to. Leaving it open to debate in this way could potentially lead to costly litigation. This will also, no doubt, reduce the so called ‘forum shopping' cases coming to the English courts whereby the economically weaker party seeks to benefit from our more generous approach to financial awards upon divorce.
- Divorce proceedings issued in England and Wales will only be automatically recognised in contracting states to the ‘2007 Hague Convention on the Recognition of Divorces and Legal Separations.' There are 15 EU member states which are not signatories to the Convention including France, Germany, Spain and Ireland, so their recognition of divorces pronounced in England/Wales will depend on those countries' domestic law. This is important to be aware of if you want to remarry in another country. You should always take advice from a family lawyer in the jurisdiction where you wish to remarry to confirm that your previous divorce is recognised there.
On a more positive note, there are wider jurisdictional grounds on which you can now bring a divorce in England/Wales, this being, sole domicile, thereby making it easier to divorce in certain circumstances.
The key areas of financial proceedings to be affected by Brexit, are maintenance orders and pensions.
As with divorce proceedings, EU law will continue to apply to any maintenance applications issued before the end of the transition period. As such, any maintenance orders already made in EU member states are still automatically enforceable in England and Wales. To enforce a maintenance order that is made in England/Wales, in a member state, you will need to have already issued an enforcement application within the relevant member state.
For maintenance claims made post transition period, the jurisdiction is wider and there are no longer restrictions to maintenance orders being made if your only connection to the UK is via sole domicile. However, this is not necessarily a quid pro quo, as there may be difficulties in enforcing a maintenance order that is made on the grounds of sole domicile. In addition, if your financial order or nuptial agreement elects that disputes about maintenance should be brought in England and Wales then that should still be enforceable. If, however, it elects an EU member state, it may be more difficult to enforce.
Prior to the end of the transition period, under EU law, if you divorced in an EU member state but had a UK pension, you could make an application to the courts in England and Wales to share this, even if you were not domiciled in the UK.
Upon the end of the transition period, those who are seeking to implement a UK pension sharing order after a foreign divorce may find it more difficult if you do not meet the narrower domicile requirements (for example it is not sufficient to just have a home in the UK), as you can no longer rely on ‘necessity' to bring such a claim. The Law Commission has made recommendations about changing the law on this and family practitioners await these welcomed changes.
To provide much more clarity to maintenance proceedings involving the EU, we are waiting to see whether the EU will agree to the UK's request to join the 2007 Lugano Convention, as this convention, which addresses which national courts have jurisdiction in cross-border cases and provides a mechanism for judgments to be enforced across borders.
All children cases instituted in EU member states before the end of the transition period can be recognised and enforced in the UK. This applies even if the enforcement application is not made until after the end of the transition period, and vice versa, for orders made in the UK and enforced in EU member states.
For orders made after the end of the transition period:
- There is no provision for direct enforcement, for example, if a child was wrongfully removed from the jurisdiction by the other parent to an EU member state. Children Act orders may need to be registered in an EU member state before they are capable of enforcement. This is likely to cause significant delays.
- The court in England and Wales can lose jurisdiction to deal with a case if a child changes their habitual residence during proceedings.
- It may be more difficult to transfer jurisdiction between England and Wales and EU member states due to conflicting legislation.
- Parental responsibility obtained in England and Wales may no longer be recognised in an EU member state and vice versa.
In summary, Brexit brings with it certain benefits to family law such as wider jurisdictional grounds for divorce and maintenance claims. However, as a result, there are also unfortunately significant losses, in particular, for children proceedings. It is therefore more important than ever that you know where you stand with your inter-EU family law case.
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.