Couples who are starting divorce proceedings must consider the ramifications of Brexit in instances where at least one of the parties has connections to an EU member state.
The end of the Brexit transition period is fast approaching, meaning as of 1 January 2021, these couples have little time left to avoid running the risk of their case not being heard in English jurisdiction.
Brussels II Regulation (EC) No 2201/2003, known as Brussels IIa, essentially means a divorce will be heard in the jurisdiction where the first party issued the proceedings. In the case of a no-deal exit, this will cease to be in effect, meaning applicants in divorce proceedings commenced after 11 pm on 31 December 2020 will no longer automatically secure the jurisdiction in which they issued.
Brussels IIa has, until now, led to many divorces in which one party has rushed to a jurisdiction that is known to favour their situation. This is often England, which has held the title of ‘divorce capital of the world’ for some time because of its globally renowned position of favouring the financially weaker party.
Providing the spouse who issued the divorce proceedings can demonstrate that they meet at least one of the jurisdictional criteria, the court where they issue in is determinative. This will all change post-Brexit, meaning international couples will have much less clarity without the automatic application of Brussels IIa.
In terms of how the jurisdiction will be decided, it will be up to the court’s discretion; decisions will be made based on where the parties have the closest links, so they can decline jurisdiction even if the proceedings were first instituted in England.
One of the main reasons the jurisdiction is so important is because it has a significant impact on the financial outcome as the laws surrounding finances post-divorce varies significantly from one jurisdiction to another.
Rules around financial orders made following a divorce will be changed, heavily impacting couples where one lives in the UK and another in an EU Member State, and one is ordered to make maintenance payments to the other.
The “Maintenance Regulation” (Council Regulation (EC) No. 4/2009) that is currently in place means these orders are automatically recognised between one EU Member State and the other. However, post-Brexit, this will no longer apply and will instead be overridden by the 2007 Hague Maintenance Convention.
There are, however, many murky areas within the Withdrawal Agreement which raise several questions about the application of Brussels IIa.
For example, Article 67 specifies that Brussels IIa will apply to “legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings”. But when exactly will proceedings be considered “instituted”?
It is unclear as to whether the divorcing parties will need to simply file their application (in which case, what would happen with an application that is defective for instance?) or whether the court will have to issue it before the transition ends. If the court issues it, what happens to applications that were made before the deadline but the court doesn’t get around to processing until after Brexit?
As things stand with Brussels IIa in place, the criteria in which English jurisdiction can be seized include the petitioner and respondent both being able to prove certain residency criteria in England and Wales. These rules will keep applying as far as domestic law in England and Wales is concerned, post-Brexit.
Without Brussels Iia in place, we are much more likely to see couples contest which jurisdiction the divorce should be heard in. This litigation in itself will be very costly and time-consuming as the courts look to analyse where the most appropriate solution lies.
Each case will very much turn on its specific facts, so a spouse applying for a divorce post-Brexit should consider whether they have a case to back up their choice of jurisdiction if indeed they are choosing a less obvious one.
For applications made in the Member States, the situation will depend on the specific country in question. Some are part of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, meaning rulings made in one country will automatically be recognised in the other.
However, the 14 Member States that aren’t signed up may not have similar provisions, make the situation more complicated. In these instances, a divorce may be recognised in the EU Member State but not in England and Wales, and vice versa.
Now is the time to be considering one’s options when working out which jurisdiction would lead to the most advantageous outcome.
For international couples who file after the transition period and are concerned about the financial outcome of a divorce, it is worth writing a jurisdiction clause into a prenuptial agreement to specify in which country the proceedings should be heard.
While this will not be fool proof, it will carry significant weight in a post-Brexit world when the court is making its decision. Making an application for divorce and financial remedy proceedings ahead of the transition period deadline could be vital to avoiding a financially crippling outcome, especially if England looks to be the preferred jurisdiction.
As we approach the end of the transition period, we may well see a rush of divorce applications so that couples can have more control over the outcome. However, those international couples applying post-Brexit would be well-advised to carefully consider how to mitigate damage from no longer having the luxury of Brussels IIa in place.
In the meantime, we can expect costlier and more lengthy divorces post-Brexit where international couples (of which there will be many) decide to contest the jurisdiction.
Matthew Taylor is a Senior Solicitor at Stowe Family Law