On 20 January 2021, the House of Commons Library issued The effect of Brexit on getting divorced, an update of an earlier version relating to the position in England and Wales in the event of a “no‑deal Brexit”. Extracts from the Press Notice and section 3.1 of the full report are reproduced below; the full report may be downloaded here.
The briefing paper provides an overview of the rules which affect getting divorced where there is a cross-border element, including divorces involving residents or nationals of EU Member States. It deals with the position in England and Wales except where stated otherwise. It does not deal with other family law matters relating to children or the payment of maintenance. Anyone involved in a divorce where there is an international dimension should consider seeking specialist legal advice.
The law of divorce, which sets out such matters as the grounds for divorce and how the assets and income of the divorcing couple might be divided, is governed by national legislation, as it was prior to the UK leaving the European Union. It is anticipated that the Divorce, Dissolution and Separation Act 2020, which will reform divorce law in England and Wales, will implemented in autumn 2021.
However, Brexit may affect UK-EU cross-border divorces in matters such as where a divorce takes place and the recognition and enforcement of orders relating to divorce.
Jurisdiction to deal with an application for divorce
The rules providing the courts in England and Wales with legal power to deal with applications for divorce are based on the parties’ “habitual residence” and/or “domicile”. Broadly, “habitual residence” is where a person is settled (e.g. where they work and where their main family life takes place), whereas “domicile” is the main permanent home in which they live, or to which they intend to return.
Divorce with an international aspect
Parties involved in a divorce may both be nationals of, and resident and domiciled in, England and Wales. However, divorce may also involve nationals and residents of different countries, within the EU or elsewhere. It may be necessary to consider which country’s law applies; which country’s courts have jurisdiction to hear the case; and how a judgment obtained in one country might be recognized and enforced in another country.
When divorce proceedings are issued both in England and Wales and in another country, the court in England and Wales has discretion to stay (halt) the proceedings here if it considers, on the balance of fairness (including convenience) as between the parties, that it is appropriate for the case to be dealt with in the other jurisdiction.
The UK is a Contracting State to a number of Hague Conventions on family law, including the 1970 Hague Convention on the Recognition of Divorces and Legal Separations which provides rules for the recognition of divorces and legal separations.
UK-EU cross-border divorces
The following EU Regulations deal with civil judicial co-operation within the EU in family matters:
- Brussels IIa, which provides rules relating to (among other things) jurisdiction in proceedings for matrimonial matters of divorce, legal separation and annulment of marriage, and for the recognition and enforcement of one Member State’s judgments relating to these matters in other Member states; and
- the Maintenance Regulation which provides rules relating to (among other things) jurisdiction in proceedings for family maintenance obligations, on recognition and enforcement of family maintenance decisions relating to these matters between EU Member States, and on cooperation between central authorities to assist individuals and courts to deal with applications and requests between parties in different EU Member States on matters covered by the Maintenance Regulation.
Both regulations include “first in time” rules (“lis pendens”) which operate on a reciprocal basis. This means that, where proceedings have been started in one Member State, the courts of other Member States are required to stay (halt) any subsequent equivalent proceedings until the jurisdiction of the first court has been determined.
Judgments on divorce in one Member State are generally recognized in other Member States without any special procedure.
Transitional/ongoing cases at the end of the transition period
The treatment of divorce cases commenced, whether in the UK or in an EU Member State, before the end of the transition period (11pm on 31 December 2020) is governed by the Withdrawal Agreement. The Brussels IIa provisions relating to jurisdiction continue to apply to such cases, and to the recognition and enforcement of judgments delivered in them.
The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 (as amended) (the Regulations) came into force on 31 December 2020. The Regulations revoke Brussels IIa for England and Wales and Northern Ireland and the Maintenance Regulation for the UK, except in relation to proceedings or applications which were ongoing at the end of the transition period. The Regulations also revoke provisions in domestic legislation which implemented these EU Regulations and amend primary and secondary legislation.
The Regulations set out rules of jurisdiction, largely based on the Brussels IIa rules, which apply to new divorce cases in England and Wales. They also replace the “lis pendens” rules. The discretionary stay provisions that previously applied only in cases involving a non-EU Member State now apply more generally instead.
The rules relating to recognition of divorces are also those which previously applied only in cases involving non-EU Member State countries. The rules on recognition are to be found in the Family Law Act 1986 which implemented the 1970 Hague Convention on the recognition of divorce and legal separations.
Only 12 EU Member States are currently party to 1970 Hague Convention: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden. The recognition of a divorce obtained in England and Wales in other EU countries will be dependent on their national law.
Separate regulations, the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019, deal with dissolution of civil partnership and divorce of same sex couples.
3. Civil judicial co-operation in family matters within the EU
The following directly applicable EU Regulations deal with civil judicial co-operation in family matters, including divorce – that is, they deal with the interaction between different legal systems in cross-border situations:
- As well as dealing with other matters, Council Regulation No. 2201/2003 (Brussels IIa) provides rules:
─ to decide which EU Member State’s court has the power to act (jurisdiction) in proceedings for matrimonial matters of divorce, legal separation and annulment of marriage; and
─ on recognition and enforcement of one Member State’s judgments relating to these matters in other Member States. [footnote 16].
- Council Regulation No. 4/2009 (the Maintenance Regulation) provides rules:
─ to decide which court has the power to act (jurisdiction) in proceedings for family maintenance obligations;
─ on recognition and enforcement of family maintenance decisions relating to these matters between EU Member States;
─ on co-operation between central authorities to assist individuals and courts to deal with applications and requests between parties in different EU Member States on matters covered by the Maintenance Regulation; and
─ on the provision of legal aid in such matters.[footnote 17]
Both regulations include “first in time” rules (“lis pendens”). This means that, where proceedings have been started in one Member State, the courts of other Member States are required to stay (halt) any subsequent equivalent proceedings until the jurisdiction of the first court has been determined. This has sometimes been interpreted as involving a “race to issue”.
Judgments on divorce in one Member State are generally recognized in other Member States without any special procedure, under Article 21 of Brussels IIa. [footnote 18].
On 22 March 2017, the House of Commons Justice Committee published a report, Implications of Brexit for the justice system. [footnote 19]. The Justice Committee described Brussels IIa as forming “the heart of cross-border family law in the EU”.[footnote 20]. The Committee considered this regulation and the complementary Maintenance Regulation to be procedural rather than substantive:
“that is, they do not set grounds for divorce, for example, across the EU; instead, they help to resolve cases by determining where cross-border cases should be heard and adjudicated upon (known as jurisdiction), and ensuring that the decisions of the court with jurisdiction are recognized and enforced throughout the EU”. [footnote 21].
[for footnotes, see original document].