Brexit & Divorce law: changes following the UK’s departure from the EU

On the 31 January 2020, the United Kingdom officially left the European Union. The 11-month transition period ended on 31 December 2020.  In this blog we briefly look at the effect this will have on divorce proceedings in the UK.

One of the main areas that will be affected is jurisdiction for the divorce.  The rules governing the country in which a divorce petition can be issued have changed.  The rules which applied to divorce in the UK were founded upon the jurisdictional requirements of EU Law, namely, "Brussels IIA". In cross-jurisdictional proceedings, these rules determined which court was to be responsible for dealing with the divorce proceedings.  However, as of 1 January 2021, the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (‘the Regulations’) have replaced Brussels IIA (‘the Rules’). Under Article 3 of the Rules, which applied to all cases of opposite-sex divorce, legal separation and annulment within the jurisdiction, an applicant was able to begin divorce proceedings against the respondent in the courts of an EU member state, if the applicant was able to prove one of the seven grounds of jurisdiction, being:

• The applicant and respondent lived in that country;
• The applicant and the respondent were last living in the country and either the applicant or the respondent still resides there;
• The respondent is living there;
• If it was a joint application, either party was living in the country;
• The applicant was living there for at least one year immediately before the application was made;
• The applicant has been living in the country for at least six months immediately before the application was made and the applicant is domiciled there; or
• The applicant and respondent are both domiciled in the country.

Under the new Regulations, the family courts in England and Wales now have the ability and discretion to suspend divorce proceedings where there are competing proceedings in another jurisdiction. The Court will decide which country is the most appropriate for the divorce proceedings to take place. This has changed the previous position where the parties were in competition to secure jurisdiction in two different EU countries, as the Rules provided that the governing jurisdiction would be where proceedings were first issued.   This change may lead to an increase in the number of cases in which the jurisdiction is contested, which in turn would result in increased costs and uncertainty for a proportion of divorcing couples.

Another significant area of change which has come into effect after 1 January 2021 relates to the recognition of orders made on divorce in the UK.  Under the old Rules, a divorce in one Member State (except Denmark) was automatically recognised in another Member State, without the need for any formal recognition process to be undertaken. For example, a divorce in France was recognised automatically in the UK. However, after 1 January 2021, the position has changed. For the 12 out of the 27 Member States (which includes: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden), whom like the UK, signed up to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations (‘the Convention’), the position will remain unchanged. Judgments made in the aforementioned countries will automatically remain to be recognised in another country which is also a signatory.  For the remaining countries who are not signatories to the Convention, including Germany, France and Ireland, there is currently no provision for automatic recognition.

The courts in England and Wales will continue to recognise divorces granted in EU members states in the same way under the Rules, providing that the divorce was granted before the end of the transition period (i.e., before 31 December 2020) or the divorce proceedings were started before this date.

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