How the UK will finally leave Europe will define the way cross-border divorce cases are dealt with in the future. The spectre of a no-deal Brexit is closer than ever and the consequences will have important implications for cross-border divorce. The decision to divorce is never an easy one and where there are children of the marriage it is all the more important to ensure that there will be the best outcome regarding their well-being. The impact of a no-deal Brexit may be felt 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.
The jurisdiction where the divorce takes place is of significance to the parties divorcing. Daniel Theron, a partner, comments "there are many aspects of divorce that vary from country to country, particularly with regard to the financial proceedings. The courts of England and Wales are popular due to the fact that they have a reputation for being far more generous to the financially weaker party and do not discriminate between the breadwinner and homemaker." At present, the rules for divorce proceedings that extend across the majority of the EU Member States are EU Regulation Brussels 11a Recast Regulations, together with another directly applicable EU Regulation, The Maintenance Regulation. These rules are largely based on the parties' domicile, habitual residence, and in some countries, nationality. Divorce cases started in the UK and in a country outside the EU require the court's clarification as to which country should deal with the divorce under the 1970 Hague Convention on the Recognition of Divorces and Legal Separations provides rules for the recognition of divorces and legal separations.
However, in the event of a no-deal Brexit, which is looking increasingly possible, Brussels 11a would no longer apply thereby removing the reciprocal basis currently in place. EU Member States would not have to enforce or recognise decisions made in the courts of England and Wales.
The government drafted the Jurisdiction and Judgments (Family) (Amendment etc)(EU Exit) Regulations 2019 on 6 March 2019 against the possibility of a no-deal Brexit. The Hague Conventions on family law, which cover similar areas to the Brussels 11a and Maintenance Regulations
Daniel Theron commented "the relevant rules covered by the Hague Conventions are broadly similar, for example, parental responsibility matters, including jurisdiction, recognition and enforcement, the rules for the return of abducted or wrongfully retained children, recognition of maintenance and enforcement thereof" He further commented "There is also a Hague Convention on divorce recognition, which has been implemented by provisions in the Family Law Act 1986. The courts of England and Wales would continue to use these rules to recognise overseas divorces. " In the event of a deal being reached at the last minute, the government would revoke all the statutory instruments drawn up in case of a no-deal Brexit and the deal arrived at would establish the rules to be applied on the day of exit.
Giambrone highly experienced family law team have vast experience when dealing with complex cross-border family law and strongly recommend that an individual contemplating divorce would be best advised to begin the procedure before the proposed exit day. This course of action would eliminate the uncertainty that surrounds the question of reciprocal arrangements from all the EU Member States particularly in the enforcement of financial orders. Giambrone's divorce lawyers have experienced considerable success in ensuring that the party with the lesser financial standing is adequately remunerated as well as facilitating adequate access for both parties to any children of the marriage.
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