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Head of Michelmores’ family team and international family law expert Daniel Eames, and Private Wealth Associate Harriet Martin, outline the implications of Brexit for individuals divorcing their EU-citizen spouses.
Proceedings commenced before the end of the Brexit transition period
For any proceedings commenced before 11pm on 31 December 2020, EU law will still apply. This means that, in respect of the divorce itself, an EU regulation known as ‘Brussels IIa’ will apply, and in respect of maintenance provisions, the ‘EU Maintenance Regulation’ will apply. For these purposes ‘maintenance’ essentially means ‘needs-based’ provision and has a fairly wide remit as it can include lump sum payments and property transfers, as well as monthly payments.
Brussels IIa contains provisions to decide a) which countries’ courts have jurisdiction to decide the divorce and b) if more than one country’s courts have jurisdiction, which should take precedence. The latter is determined by a simple rule (‘lis pendens’ also known as ‘first past the post’) which says that the court of the country in which a divorce application is filed first will hear the divorce (this has led to so called ‘forum shopping’ or ‘divorce tourism’ where spouses race to file proceedings in the courts of the country with laws most beneficial to them). Brussels IIa also provides a mechanism for divorce orders made in one EU Member State to be recognised and enforced in another EU Member State.
Like Brussels IIa, the EU Maintenance Regulation includes a mechanism to determine which countries’ courts have jurisdiction to decide maintenance claims. It also includes the first past the post rule explained above and provisions to ensure that any maintenance order made in one EU Member State is recognisable and enforceable in another.
Proceedings commenced after the end of the Brexit transition period
For proceedings commenced after 11pm on 31 December 2020, neither Brussels IIa nor the EU Maintenance Regulation will apply. This means that, from 1 January 2021, the UK’s cooperation with the EU in respect of divorce and finances will be governed by various Hague Conventions (which arguably fall short of the EU regulations that once applied) as well as existing domestic laws that apply in cross-border cases involving non-EU countries.
There are various practical implications for couples (both opposite and same-sex) with EU connections who have decided to divorce now that Brexit is complete.
The first past the post rule will not apply and, instead, the courts of the country the couple has greater connections with will hear the divorce (known as ‘forum non conveniens’). This could lead to long and expensive disputes between parties to determine which country’s courts should decide the divorce/finances before they have even thought about the fundamental issues.
Secondly, there may be problems around the recognition and enforcement of an order made in one country in another country. Practically this could mean that a person whose divorce was granted in one country is unable to remarry in another if it does not recognise the divorce order. It could also mean that an order for maintenance in one country is unenforceable in another, resulting in ex-spouses receiving less than they are entitled to and being unable to redress this easily.
If you need advice on an international family law matter, please contact Daniel Eames, Head of Michelmores’ family team at daniel.eames@michelmores.com.
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