Brexit... Divorce and family

Before Brexit and for cases started during the transition period, the rules concerning cross border disputes involving children when one parent lives in England and another in an EU Member State were found in the EU Regulation known as Brussels IIbis. Following Brexit, Brussels IIbis no longer applies in England and all references to the Regulation have been deleted from domestic legislation.

Going forwards for cross border disputes relating to children, we will be relying on the framework contained in the 1996 Hague Convention on Jurisdiction Applicable law, Recognition and Cooperation in respect of parental responsibility and Measures for the Protection of Children (the 1996 Hague Convention) to determine which court has jurisdiction in any given case.

The good news is that under the 1996 Hague Convention, the underlying basis for jurisdiction for cases involving children in these cross border circumstances will remain the same as under Brussels IIbis; i.e. jurisdiction will primarily be based on the child’s habitual residence. The other fundamental positive is that although there won’t be automatic enforcement and recognition of new Orders (as under Brussels Ilbis), mechanisms are already established under the 1996 Hague Convention for a stepped process to achieve and secure enforceability across borders.

However although these fundamental tenets are in place, many safeguards contained in the more comprehensive European Regulation will fall away and the uniformity of approach which is at the heart of the European project will no longer apply. It is early days and the way that the UK and EU Member States will work together going forwards is in the process of being negotiated and developed. We are monitoring this progress keenly and working closely with our extensive network of European colleagues to understand the individual approaches of national courts across Europe so that we can provide the best advice to our clients whatever their circumstances.

Divorces instituted before 11pm on 31 December 2020 can continue to take advantage of the EU regulations regarding recognition and enforcement even when those issues do not become relevant until years later.

For those divorces that began post-Brexit, however, there are some important changes to bear in mind:
i) An applicant must be habitually resident here when they make the application but need only be resident for the 12 months preceding the application;
ii) Jurisdiction can now be secured by just one party being domicile in England and Wales – but there may be international enforcement implications relying on just that ground;
iii) Rather than the first court seised determining jurisdiction, the court will consider whether or not England/Wales is the most appropriate forum;
iii) There is no longer automatic recognition of divorce between England and the Member States (although 1970 Hague Convention applies to a limited extent for 13 of the remaining 27 Member States);
iv) Enforcement of orders will be trickier and we must rely on the Hague Convention and potentially the Lugano Convention if/when we become a signatory in our own right. Preparation and forward planning are key and it is important to take advice in the relevant jurisdictions.
v) If you are divorcing in an EU-27 jurisdiction but have an English pension then take advice as to how a pension share would be implemented before you agree that such a share would form part of your settlement.

Where the divorce has already begun it is likely to progress uninterrupted by Brexit. However, there are some issues post-divorce to bear in mind, for example:

i) It may be more difficult to recognise divorces obtained in an EU-27 country post-Brexit. The EU Regulation which ensures that if you are divorced in one EU Member State then another Member State must automatically recognise that divorce will no longer apply. Although in some instances the 1970 Hague Convention applies, it is only as between the UK and 13 of the remaining 27 Member States, and does not apply to same-sex marriages, civil partnerships or nullity cases. If you are already divorced and plan to re-marry, and you are either now living in England but were divorced within the EU-27 or were divorced in England and now live in an UE-27 country, then now is the time to take advice about registering that divorce.

ii) EU Regulations are helpful when it comes to recognition and enforcement of financial orders. Whilst we remain hopeful that we will have some aids to enforcement through Hague Convention and Lugano Convention, in the event that we are unable to rely on those Conventions post-Brexit enforcement will become difficult. If you are in the midst of a divorce, with an EU element, it is a good idea to take advice now as to steps you may be able to take to aid enforcement later.

iii) if you are divorcing in an EU-27 jurisdiction but have an English pension, it would be wise to take advice about it prior to the end of the transition period, as the jurisdictional basis we regularly use to implement a pension share is dependent upon EU regulations which will no longer apply.