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.

The law with regard to prenuptial agreements in England and Wales will not be significantly affected in terms of the principles applied to prenups by the English court but that’s not to say that Brexit has not had an effect on nuptial agreements for international couples.

Whilst the UK has confirmed that it will respect agreements made with EU27 countries if made in accordance with the EU Maintenance Regulation before 31 December 2020 there is no reciprocal agreement from the EU27 to respect choice of court agreements in prenups as against the UK, whether made before or after 31 December 2020. This is a significant change from the previous position where couples could elect, for example, which country should deal with spousal maintenance claims on divorce, on the basis that would be binding under the EU Maintenance Regulation.

Brexit has changed the law in relation to divorce in England and Wales and as between the UK and the EU27. This will reduce the capacity of some international clients to exert an element of control about which country should have jurisdiction on their divorce (and in some cases, which laws will be applied). This, in turn, will have a knock-on effect on the efficacy of some nuptial agreements because in England and Wales, the court’s jurisdiction to deal with financial claims is largely dependent upon whether it has jurisdiction for the divorce. At the other end of the process, if a nuptial agreement is upheld by the English court on any divorce, then Brexit may well effect the enforcement of the financial orders made by the English court, especially in relation to maintenance as there will no longer be reciprocity under the EU Maintenance Regulation as between the EU-27 and the UK.

The good news is that where any prenup or postnup contains a choice of court clause or applicable law clause, even if it was not reviewed before the end of the transition period, we can advise on the merits of entering a postnuptial agreement dealing with these issues, (and access the necessary specialist advice if needed) for greater certainty and asset protection.