EU divorce – it’s finally here

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EU divorce – it’s finally here

If Brexit were an actual divorce, the decree absolute came through on 31 January this year. However, there was a fair bit of unfinished business and there’s been a lot of discussion: some constructive, some less so. In a couple of weeks, (at 11pm on 31 December to be precise) we’re actually moving out of the family home and starting a new life in a different place.

What does that different place look like?

It is difficult to overstate the extent to which EU law and practice has permeated legal and commercial life in the UK. I’m not going to rehearse the old arguments about whether this is a good or a bad thing but I think we can all agree that it’s definitely a thing. Family law is no exception. After we move out of our EU family (law) home, some things will change.

What difference does EU family law make now?

Our substantive law and procedure on things like maintenance, sharing property on relationship breakdown, grounds for divorce and arrangements for children are governed by national laws. So, the nature of your divorce settlement is shaped by laws passed in Westminster (the Matrimonial Causes Act 1973, since you asked), as interpreted by the courts in England and Wales.

Right now and up until the end of the Brexit transition period, EU law largely makes its presence felt in the area of jurisdiction. Jurisdiction refers to the ability of the courts in a particular territory to deal with a legal issue. EU member states including the UK, decided on a common framework for deciding which territories’ court should handle certain cases.

When it comes to divorce, the decision is based on where you live and, sometimes, with which other place(s) you have significant connections. This is the same throughout the EU (except Denmark) and can be found in a Regulation called Brussels IIA (aka, Brussels II bis or Brussels II revised).

What’s going to change?

After the end of the Brexit transition period, the rules for establishing jurisdiction will stay pretty much the same and will be found in a revamped section 5 of the Domicile and Matrimonial Proceedings Act 1973. 

The only change of note is the promotion of sole domicile from a ground of jurisdiction available only when no other court of a member state has jurisdiction, to an item on the ‘main menu’ of options. Domicile is a technical term that refers to an individual’s connection to a particular legal system. Even if you live and work overseas, a person born in England and Wales may retain their domicile here until their presence in a new country can truly be considered permanent. Currently, starting divorce proceedings on the basis of one party’s domicile alone can carry significant disadvantages for the financial settlement they are able to secure. These disadvantages will be reduced after 31 December this year.

When parties with international connections disagree about where they should get divorced who decides?

The end of the Brexit transition period will make a real difference here.

If both parties are eligible to get divorced in different EU member states and each decides to start proceedings in a different country, we have a problem. The solution? We ask, whose divorce started first, or in technical terms, which country’s court was ‘first seised’? It is not always straightforward to determine such disputes, especially if couples are racing to begin proceedings in their country of choice in the same week or even on the same day. However, for a court to be seised, broadly speaking, the application needs to arrive at court and the applicant needs to take whatever steps to give notice of the proceedings as per the rules applicable to that country. 

This situation is known as a jurisdiction race and whoever was first in time wins. The court ‘second seised’ has to put the case begun there on permanent hold, provided that the court ‘first seised’ does indeed have jurisdiction to proceed.

First in time – all change

This will change from the end of the Brexit transition period. If the jurisdiction dispute is between a UK court and the courts of a remaining EU member state, the test is not who got in first but which country has the closest connection with the divorce. Less emphasis on speed, more discretion for judges to make a ruling. This is a familiar situation for couples in dispute between divorce in the UK and a non-EU state such as Canada or Australia.

Cases that started before 11pm on 31 December will continue to be subject to the first in time rule, even if the subsequent divorce begins afterwards.

We do not know how the courts of the remaining EU27 will handle disputes where both cases began after 1 January 2021 and whether they will continue to emphasise the importance of first in time. In any kind of jurisdiction dispute worldwide, it is often, but not always, helpful to get in first, even if this is not technically decisive. However, there are many exceptions to this and the best thing you can do is to take early advice in all relevant countries.

That’s jurisdiction as it relates to divorce, but what about the financial aspects of divorce?

These two issues are very closely connected. Just like divorce, the actual law on how financial settlements – maintenance, lump sums, property transfers, pension orders – are determined has been a matter for individual member states. Again, just like divorce, EU member states, including the UK, agreed a common framework for dealing with jurisdiction to decide and enforce “maintenance”. 
For the last nine years, we have used a piece of EU legislation known as the Maintenance Regulation to establish jurisdiction and handle mutual recognition and enforcement of orders made in each member state (except Denmark). When the Brexit transition period ends, this will no longer be a part of UK law. 

It’s worth pausing there to remind ourselves that in ordinary language, maintenance refers to weekly, monthly or annual periodical payments made by former partners to support the other or a child in their care. In the EU context, it has a wider meaning and refers to any financial provision (including periodical payments) designed to meet a need, which could include anything from a lump sum order to a transfer of property or pension sharing or attachment order.

There is a variety of criteria for establishing jurisdiction under the Maintenance Regulation but the key ones are the habitual residence of payer and/or payee.

Any case that started before 11pm on 31 December 2020 will be dealt with according to this framework, no matter how far into the future the need to enforce a court judgment in another member state arises. Jurisdiction to deal with cases after that date in the UK will be determined according to national, rather than EU law. Habitual residence will continue to be important as will the location of the divorce proceedings. However, there will be slightly different provisions depending on the nature of the financial claim. 

Enforcement of maintenance orders within the EU will be governed by another international instrument called the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It is less slick than the existing process under the Maintenance Regulation but it would be a mistake to think that UK orders will suddenly be unenforceable in the EU. It will be more like dealing with enforcement in the USA.

How big a deal is “legal Brexit” for family law?

For individuals with EU connections in very specific (and in some cases, hitherto unimagined) situations it could make a big difference. The changes will make financial orders made in the UK more complex to enforce and there may be particular local issues around recognition of divorces. Anyone concerned about the position should take UK and overseas legal advice as a matter of urgency if the New Year’s Eve deadline is likely to make a difference to them.

There are some wins, particularly for certain individuals seeking a divorce on the basis of sole domicile alone. However, “legal Brexit” is not necessarily to their advantage. It all depends on the background.

Back to the divorce analogy: in family law at least, there will be a dignified break with the EU and hopes are high that there will continue to be productive dialogue between the legal systems of the UK and the EU27 when cooperation is needed. Who knows they might even go on holiday together…

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