Divorce After Brexit – What Do You Need to Know?

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Divorce After Brexit – What Do You Need to Know?

I am thinking of getting a divorce. What will be different now that the transition period has ended?

This is a question that will be weighing on many people’s minds now that Brexit has fully taken place. The answers to these questions are not straight forward and may change as Britain and the EU evolve their relationship with each other. For now, we have provided a quick summary on what your situation may be if you apply for a divorce in the future.

Effectively, if both you and your spouse are domiciled and permanently based in England and Wales, there will be very little change as this situation is governed solely by English and Welsh law.

However, where one party resides in England or Wales, and the other in a different EU Member State, or where both of you are residents of the UK, but not nationals, Brexit may complicate matters in terms of where your divorce is heard and recognised.

Will Our Divorce be Recognised by Other EU Countries?

While Britain was a member of the EU, all Member States had to recognise a divorce that had been granted in another EU State. Now that Britain has left the EU, however, this will no longer apply, and parties will have to rely on the 1970 Hague Divorce Convention, which many of the 27 EU Member States are not party to (including France and Spain).

This means that divorce orders that are made in Britain risk not being recognised in a foreign court. The position is slightly clearer for those that are signatories to the 1970 Hague Convention, but even these States may have made reservations on the Convention, which must be checked from the outset. For countries that are not signatories to the Hague Convention of 1970, the position on foreign recognition of British divorce orders will depend on their domestic law.

The EU has clarified that if an application for divorce has been issued before 31st December 2020, the divorce will be recognised by all EU Member States.

How Will Brexit Affect Where Our Divorce Takes Place?

If you have applied for divorce before the 31st December 2020, then there will be no effect, and the first in time rule will still stand. Under EU law, the first in time rule means that the state where proceedings are put in to motion first will have jurisdiction on the divorce.

Now that the UK is not part of the EU, the English Courts will have to decide whether to hear the case based on which of the competing countries they believe is the most appropriate venue for it to be heard. This will include where the parties lived while they were married and where their assets are situated, meaning that extra legal proceedings may have to be undertaken to determine where the case should be heard, before the divorce process itself can actually begin.

Will the Law Change?

There is potential. The UK may become signatory to the Lugano Convention 2007 which is an international treaty between the EU Member States, Iceland, Norway and Switzerland. This Convention sets out provisions to determine which national courts have jurisdiction in cross-border civil disputes and ensures that decisions can be enforced across borders. As Britain has left the EU, it is no longer a signatory, but it has applied to join the Convention as an independent member. This will require the agreement of all current signatories to the Convention. [1]

Stella Maris Solicitors LLP are expert solicitors based in Swindon. If you have any further questions about family law, divorce, or child proceedings, do not hesitate to contact us. Telephone 01793 296118, or email mail@stellamarissolicitorsllp.co.uk.


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