The considerable challenges and pressure that individuals are exposed to in the current global crisis is undoubtedly a contributing factor to the rising levels of divorce. Couples with connections to both the UK and another EU country may still have the opportunity of choosing the jurisdiction in which to divorce.
London has been frequently referred to as the divorce capital of the world, mainly due to the courts' inclination to favour the financially weaker party together with the wide discretion that the judges in England and Wales can extend with regard to the financial orders related to a divorce, including, on occasion and where appropriate, making life-long maintenance orders.
Prior to Brexit when the divorcing couple were from different European countries there was frequently a jurisdiction race, as the first party to file for divorce defined the jurisdiction in which the divorce would be heard. This has now changed as jurisdiction races are no longer relevant and the "first to issue" rules no longer apply as the deciding factor as far as the question of jurisdiction is concerned is the "closest connection" meaning that factors surrounding the couple are considered, for example:
- The nationality of both party
- The location of the matrimonial residence and any other fixed assets
- The usual domicile of the couple
- Where both parties work
- Where children of the marriage under the age of majority attend school
The consequences of the changes to the rules can mean that even before the divorce is underway there are protracted legal arguments related to the jurisdiction, adding to the costs and very often results in the party whose choice of jurisdiction is rejected feeling that before the divorce proceedings have even started that they are at a disadvantage.
The experienced lawyers in Giambrone's family law team point out that cross-border divorce always has the potential to be complex and Brexit has brought about changes relating to jurisdiction. However, an EU national living and working in the UK will still have the right to bring divorce proceedings in the courts of England and Wales. There are also other factors that can link a person to a domicile. The divorce and financial settlement laws do vary from country to country including the way assets, pensions and spousal maintenance are treated.
Another crucial factor is the ease with which a court order can be enforced now that there is no blanket reciprocal arrangement as enshrined in the EU. Divorces in the UK that were instigated on or after 1 January 2021 will be recognised in an EU country only if the country is a signatory to the Hague Divorce Recognition Convention 1970. Should a country not be party the aforementioned Convention then recognition of the UK divorce will entirely depend on the laws of that country in question. The UK does recognise divorces commenced after Brexit in EU countries. It is imperative that from the moment the decision to divorce has been made, expert legal advice is sought, most particularly if there is the potential to select a jurisdiction. Failure to do so can result in radically different divorce settlements in certain circumstances.
Giambrone's family law team have extensive experience of a wide range of issues linked to cross-border divorce and financial settlements and can advise in jurisdictions throughout Europe and the UK from our offices in across Europe.
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.