In October 2016 the justice minister, Sir Oliver Heald, arranged to opt into the European Commission's proposal to repeal and update the legal mechanism which assists divorcing couples where two countries are involved known as Brussels 11A regulation believing that regardless of Brexit this would be the best path for cross-border divorce and family matters. Sir Oliver no doubt did not expect that the route to Brexit would still be unclear with no-deal and very few days to go before the UK is scheduled to leave the EU. The prospect of a disorderly Brexit on the horizon opens up the question as to what will happen to cross-border divorce and other relevant family issues in the event of a no-deal Brexit.
The key question of how the UK will leave Europe will define the way cross-border divorce cases are dealt with in the future. The government has issued two papers and a Technical Notice which attempt to detail what would happen in the event of a no-deal Brexit to this sensitive area of law both for ongoing divorces and those yet to be commenced. If there is an orderly Brexit there may be a transition period, however, if there is a disorderly Brexit it will signal an abrupt end to the relationship with the EU.
There will be quite a few changes, we highlight below just some of the things that will alter and make a difference to cross-border divorces if Britain leaves the EU without a deal. However, there have been some arrangements made between the UK and EU to limit the potential for harm.
Jurisdiction for ongoing cross-border divorces at the point of a no-deal Brexit
EU Member States - with regard to jurisdiction, the European Commission has provided guidance to the 27 member states of the EU that for divorce proceeding already underway where the respondent is domiciled in the UK indicating that the jurisdiction rules of Brussels 11A will still apply.
England and Wales - The Court of England and Wales has also agreed that the jurisdiction rules of Brussels will apply under Brussels 11A for ongoing matters.
Jurisdiction for new cross-border divorces after a no-deal Brexit
EU Member States – As the only international law related to which court has jurisdiction for divorce is the Brussels 11A, unless another EU instrument sets the rules relating to this situation, jurisdiction in new cross-border divorce cases after a no-deal Brexit will be under the control of the national rules of the Member State's court where the application is made.
England and Wales - Brussels 11A will not apply to divorce matters in the courts in England and Wales as this rule will be revoked. As there is no international law relevant to divorce other than Brussels 11A, jurisdictional rules that are identical to those of Brussels 11A have been added to the Domicile and Matrimonial Proceedings Act 1973 together with other procedures. The court of England and Wales will have discretion to stay proceedings in the event of proceedings continuing in another jurisdiction.
Recognition of orders for divorce in cases that were ongoing at the point of a no-deal Brexit
England and Wales – The court of England and Wales will maintain recognition of divorce orders granted in EU Member States before a no-deal Brexit in the same way as under the Brussels 11A rules.
EU Member States - The European Commission has directed the EU 27 Member States that divorce orders made in the UK before the UK leaves must have reached the stage of having obtained a declaration of enforceability (registration for enforcement) which means that the Member State will already have recognised the divorce order as recognition of the order precedes the declaration of enforceability.
Recognition of orders for divorce in cases commenced after a no-deal Brexit
England and Wales - Recognition in the court of England and Wales for orders for divorce in divorce cases started in an EU Member State after a no-deal Brexit will be recognised in the same way as orders from non-EU countries, under the Family Law Act 1986 which implemented the 1970 Hague Convention in respect of divorces and legal separations.
EU Member State – Recognition in an EU Member State for orders for divorce (decree absolute) decided in the court of England and Wales after a no-deal Brexit will be subject to the national rules of private international law for each Member State unless the Member State is party to the 1970 Hague Convention on Divorce Recognition.
Recognition of divorce orders and jurisdiction issues are just two areas of cross-border divorce law that will alter after Brexit. Giambrone's divorce law team are concerned that there is no international law governing all aspects of British and European divorce law, not all EU Member States are party to the 1970 Hague Convention and there are significant variations between the EU Member States' national rules of private international law. Also, as it stands at the moment, there is uneven reciprocity between the court of England and Wales and the EU Member State's courts. Individuals who are seriously considering divorce may be wise to consider acting sooner rather than later as it is possible that there may be considerable advantages that will be lost if the UK crashes out of the EU without a deal.
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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.