Brexit: what international clients need to think about if a relationship breaks down

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And until you’ve repaid/The dreams you bought for your lies/You’ll be castaway/Alone under stormy skies” In the tumultuous world since certain politicians convinced the British public leaving the European Union was prudent, the lyrics of the great Manchester band, Oasis, and their song “Where Did It All Go Wrong?” often spring to mind. But alea iacta est, or so Julius Caesar is alleged to have said, and the Rubicon has been crossed.

So what does Brexit mean for our clients? Here are some headline points for those with international dimensions:

  • Divorce jurisdiction. It is now possible to file divorce proceedings on the basis of one party being domiciled in England, regardless of their spouse’s nationality or domicile. Filing under sole domicile, however, may run a risk that another state will not recognise the English maintenance regime so additional care is needed.
  • Divorce forum. The ‘first in time’ rule does not now apply in cases involving EU27 jurisdictions, which may lead to more, and likely costly, “forum conveniens” arguments prior to the commencement of proceedings proper, but may also mean that some clients may have more of chance to choose England (or Wales) for their divorce and connected financial proceedings.
  • Divorce recognition. English divorces are no longer automatically recognised by all remaining EU member states, albeit the 1970 Hague Convention applies to a limited extent to some. We are increasingly seeking local advice from our EU27 colleagues in this regard to ensure clients can have their divorce seamlessly recognised when they move between jurisdictions.
  • *Pensions*. The EU Maintenance Regulation no longer applies in the UK, which is causing challenges when enforcing pension sharing orders of English pension schemes, where the couple has divorced abroad. Whilst we have a statute (the Matrimonial and Family Proceedings Act 1984) through which such a pension order can be made, where both parties live overseas, the court in England and Wales will now only have jurisdiction to do so if one of them is domiciled here. Before the end of the transition period, parties could rely on the ‘necessity ground’ under the EU Maintenance Regulation. So, clients divorcing abroad but where there is an English pension will need to consider as part of settlement discussions, the practical ability to implement a PSO. This may also require consideration of Qualifying Recognised Overseas Pension Schemes (‘QROPS’) but expert advice and investigation is essential.
  • Prenuptial and postnuptial agreements. English PNAs still follow the principles of English law. However, whereas before the end of the transition period in December 2020 EU states would respect a choice of court agreement made in a PNA (eg which country may handle any maintenance claims), post-Brexit this is not guaranteed. Consequently there may be queries about clients’ ability to assert as much control in their PNAs or the ability to enforce PNAs which are upheld in England.
  • Jurisdiction for children disputes will continue to be based primarily on the child’s habitual residence as between the UK and the remaining EU27 countries. Similarly, although orders are no longer automatically enforced as they would have been under Brussels IIbis there are mechanisms under the 1996 Hague Convention to assist with enforceability across borders. Re Shanavazi [2021] EWHC 1832 (Ch) (07 July 2021) [2021] EWHC 1832 (Ch) provides a recent example.

The above is a whistle stop tour of areas to consider for international cases and it is worth mentioning in addition that EU regulations remain relevant for some cases where proceedings began before the end of the transition period. Each client’s circumstances would require specific advice. But for now, should clients find themselves in times of trouble, whisper words of wisdom – we have it covered, whatever the effects of Brexit may be.

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