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Changes to the divorce process following Brexit

View profile for Shelley Cumbers
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Changes to the divorce process following Brexit

 On 31 January 2020, the UK exited the European Union (the EU). A post-Brexit transition period then followed until 31 December 2020 during which time, the UK was generally treated (with some exceptions) as if it were still a member of the EU and most EU law still applied. 

After this date, the rules are different, and this blog looks at 3 commonly asked questions in terms of the how Brexit affects divorce proceedings in England and Wales as follows:-

 1.    I’ve not yet started divorce proceedings, what jurisdiction will I need to rely on to apply for a divorce in England and Wales?

Following Brexit and with effect from 1 January 2021, the rules have slightly changed in terms of the grounds for jurisdiction to enable the Family Court in England and Wales to deal with a divorce case. 

It is now possible to apply for a divorce even if only one party to the marriage is domiciled in England and Wales.  Habitual residence on the day of issuing the divorce application, rather than for the 3 months preceding the application under EU law, is another change.

The revised grounds of jurisdiction for divorce applications made on or after 1 January 2021 are as follows:

a.    Both parties are habitually resident in England and Wales;

b.    Both parties were last habitually resident in England and Wales and one of them continues to reside there;

c.     The respondent is habitually resident in England and Wales;

d.    The applicant is habitually resident in England and Wales and has resided there for at least 1 year immediately before the application was made;

e.    The applicant is domiciled and habitually resident in England and Wales and has resided there for at least 6 months immediately before the application was made;

f.     Both parties are domiciled in England and Wales; or

g.    Either of the parties to the marriage is domiciled in England and Wales.

2.    Will my English divorce be recognised abroad?

If you have international connections, it may be beneficial to ensure your English divorce is recognised abroad.  

Following Brexit, whether your divorce will be recognised in the EU depends on two issues: the divorce date and whether the relevant EU country has signed the 1970 Hague Divorce Recognition Convention (the “Convention”).  The rules are as follows:

a.    Divorces granted before 31 December 2020 – these will be recognised by all EU countries.

b.    Divorces started before but not concluded by 31 December 2020 – although your divorce will be recognised by all EU countries, it is recommended you should apply for a Certificate of Recognition at the earliest opportunity, particularly if you plan in the future to work or live abroad in an EU country.

 c.     Divorces started on or after 1 January 2021 – some EU countries may not recognise your divorce as the following 15 states have not signed the Convention:

  •  Austria
  • Bulgaria
  • France
  • Greece
  • Ireland
  • Lithuania
  • Romania
  • Spain
  • Belgium
  • Croatia
  • Germany
  • Hungary
  • Latvia
  • Malta
  • Slovenia

If you need your divorce to be recognised in one of these countries, you should obtain legal advice from a lawyer specialising in the law of that country as recognition will depend upon national laws, not EU rules.

 

3. My spouse and I have international connections, what happens if they start divorce proceedings in another country?

Before 1 January 2021, the courts in England and Wales followed the “first past the post” rule which meant that if a divorce application had been made in another EU state as well as in this country, the country in which the proceedings were issued first would have priority.  

This meant that if your spouse had started divorce proceedings in an EU country before 1 January 2021, you would not subsequently be able to apply for a divorce in this country as your spouse’s application was first in time. 

Over the years, there have often been jurisdiction races due to this rule as international couples would rush to issue their divorce cases in England and Wales to ensure their divorce would be decided here. 

The reason for this is because our courts have far wider powers when dealing with financial assets on divorce and have a reputation for giving more generous financial provision. This is why London has often been described as the “divorce capital of the world”.

The “first past the post” rule no longer applies for divorces started on or after 1 January 2021. This means that if your husband or wife starts divorce proceedings in an EU country on or after this date, you can still potentially apply for a divorce in this country even though he/she applied first.  

However, please be aware that the courts in England and Wales can still exercise discretion to stay proceedings when divorce applications have been made in two different countries. To decide which country will hear the divorce case, the court will consider which country you and your spouse have the closest connection and strongest links with by looking at factors such as domicile, residence, nationality, where assets are held, where children attend school, language, cultural background, and the alternative court being put forward.  

For couples facing this issue, it will be imperative to take additional expert legal advice from a lawyer specialising in the law of the other country where different rules may be applied.

 

If you are involved in or contemplating a divorce and are affected by any of the issues raised in this blog, please do not hesitate to get in touch.  We offer a free of charge 15 minute initial chat to discuss your case and to explain how we can assist. 

If you require any more information on this topic please contact Shelley via shelley.cumbers@birkettlong.co.uk or call 01206 217378

 

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