Brexit and Divorce – What do I need to know?

As we hurtle towards the end of the year, the probability of reaching a Brexit deal reduces with every day. Does this matter if you are thinking about getting divorced or if you are in the middle of divorce proceedings?

Those contemplating divorce or who are in the process of getting divorced are left in the position of potentially having to make some hasty decisions. Whilst it may not be at the forefront of people’s minds, there could be severe repercussions for individuals who fail to act now where there is a risk that divorce proceedings could brought in more than one jurisdiction. If England is likely to be the more favourable jurisdiction in which to get divorced and resolve the finances, then the message is clear – don’t delay!

In this blog, FLiP associate Hannah Greene and professional support lawyer Carla Ditz highlight what divorcing couples need to be aware of as we approach the end of the transition period.

Who will this affect?

If either you or your spouse have links to other countries and there is a risk that divorce proceedings could be issued in more than one jurisdiction, you may need to take action as soon as possible in order to secure your preferred jurisdiction.

Many individuals choose to get divorced in England as they feel English law treats them more fairly and there is the potential for a more generous financial outcome as compared to other jurisdictions. The financially weaker spouse is therefore more inclined to issue divorce proceedings in England in order to take advantage of this.

The current position

As it currently stands, until 11pm on 31 December 2020, EU law continues to apply in matters concerning family law.

What this means for divorcing couples is that where proceedings can brought in more than one country, it will be the jurisdiction in which proceedings are first brought that will secure the jurisdiction (and the ancillary financial matters). This is the so called “lis pendens” rule which often results in couples racing to court to secure the jurisdiction which is more favourable to them. (Additionally, because of the agreements on mutual recognition, a divorce granted in England for example, is automatically recognised elsewhere in the EU. The same rule applies in respect of orders for maintenance).

It is likely (although we could still hypothetically reach a deal) that after 31 December 2020 jurisdiction issues will then be governed by a system known as “forum conveniens” or the “closest connection” test. This is a far more complex system which involves establishing which country is the most appropriate for proceedings to take place in based on the parties’ connection with each country. Whilst racing to court to issue proceedings will become a thing of the past, the application of forum conveniens may result in lengthy court proceedings simply to determine where the divorce should take place before the substantive proceedings are even underway. As with any litigation, costs and delay will be an inevitable consequence.

The message is clear: if you want to secure jurisdiction in England it is important that you issue your divorce petition as soon as possible and, in any event, before the end of the year if possible. This is because under the current rules, you secure jurisdiction by lodging/filing your divorce petition (ie sending it to the court via either the online portal or by paper copy). But after 31 December 2020, it is not certain that this will be sufficient to secure the jurisdiction of the English court. Instead, it would be prudent to ensure that your divorce petition has actually been issued by the court, ready to be served on your spouse. For clarity, lodging refers to the court receiving your petition or application and issuing refers to the date the court deals with/processes that application – a subtle but important difference.

After 31 December 2020

What we do know is that EU law specifies that proceedings must have been “instituted” before 1 January 2021 if the EU rules on jurisdiction, recognition and enforcement are to continue to apply. What we don’t know is what “instituted” actually means as no definition is provided. Does it mean that proceedings must have been initiated, lodged or issued? The terminology is causing some confusion and uncertainty. It is also unclear whether issuing a divorce petition will be enough to secure jurisdiction with respect to any financial claims.

Safe to say, you should err on the side of caution and issue both divorce proceedings and financial proceedings rather than simply rely on the divorce petition to establish jurisdiction (there are boxes which can be ticked in the divorce petition to indicate whether you are intending to make a financial claim as well).

In short, it cannot be said that simply lodging your application with the English court will protect you as we approach the end of the transition period. Advice should be sought as soon as possible.

Enforcement in other jurisdictions

Provided that proceedings are issued (or, to use the EU terminology, ‘instituted’) on or before 31 December 2020, subsequent orders of the English court will be recognised and enforced around the EU in accordance with EU laws. So if your spouse has assets in other EU jurisdictions over which you are likely to be seeking a financial order, you must be sure to issue proceedings before the end of this year so as to facilitate the enforcement of any English court order in the future.

Conclusion

If you are considering issuing proceedings and have concerns about your spouse issuing in another jurisdiction, time is of the essence. Any delay in issuing proceedings could affect your chances of securing the best outcome for you.

The court system is already experiencing severe delays and it is expected that there will be a rush to issue proceedings in December for the very reasons mentioned in this blog. Please also bear in mind that the courts are closed over Christmas and New Year which further reduces the window of opportunity to potentially secure the jurisdiction of the English court.