Brexit and its Impact on Divorce

Friday January 31, 2020

Why does family law matter to Brexit?

Brexit and DivorceIn 2018 one in three children were born to at least one parent who was born outside of the UK. Some of the most common countries of origin for mothers and father are from the EU.  Sadly it’s inevitable that some of those relationships are going to breakdown.

Financial settlements upon divorce and how Brexit will affect this

When a breakdown of a relationship involves a spouse from an EU country there is currently often a race for the financially weaker spouse to secure the divorce and financial proceedings to take place here in England.   The English courts have a reputation for being more generous than a lot of other countries towards a financially weaker party.

What’s the current position of family law under EU law? 

Since 2001 all 28 EU member states (except Denmark) have been governed by one EU Regulation known as Brussels IIa.  Provided you meet the qualifying criteria and regardless of which EU country both parties live in, the EU country in which the divorce proceedings are first started will be where the divorce and financial proceedings are conducted.  This is different for applications to resolve the arrangements for the care of any child which in England & Wales requires the child or a parent of the child to be resident here.

Final court orders in divorce, related financial or children proceedings (except in exceptional circumstances for children applications) made in any EU member state can be registered to be enforced in another EU member state without having to rehear and determine the application again. This process saves both time and money.

How this might change under Brexit?

At present if you or your spouse meet the criteria for a divorce in England then that person can issue proceedings here. If you or your spouse is an EU citizen from another country and fit the criteria to issue in that country then it is a simple race to the first person to issue proceedings in their respective country that gains the jurisdiction to deal with the proceedings.

It is not clear what the situation will be if there is a Brexit deal as that will depend upon the terms of that deal and whether Brussels IIa still applies.

As we understand it, if there is a “no deal Brexit” then all EU countries would be treated in the same way we currently treat other countries such as the US, Canada, Australia. It would not be a race to the first in time that automatically secures jurisdiction but there would be a contest to decide which is the most suitable country in which to have the proceedings. 

In that scenario proceedings would become more time consuming and expensive as instead of simply looking at the date and time of the issue of the proceedings the courts would need to consider:

  • The closeness of the connection you will each have with each country taking into account where the majority of the assets are held,
  • How easy it is to enforce any orders against those assets
  • The award you are likely to receive in those countries.

Many EU member states have less generous financial settlements than England and Wales and some will only divide the assets accumulated during the marriage on a sharing basis without taking into account your individual needs which is one of the principles  of the English court system.   Depending on your own financial situation you may want to explore carefully which is the best jurisdiction for you to commence proceedings and your chances of success in securing the outcome you are seeking.

If, however, following a foreign financial order (from any country not just an EU one), there is serious financial hardship to a spouse living in England & Wales (or who is a national citizen of this country) then, a financial relief application can still be made but the bar to success is high and any award is not likely to be as much as would have been the case if the proceedings were issued here first.

How will English or EU orders be recognised after Brexit?

The UK and all EU member states are still signatories to several Hague Conventions that will apply in their own right to deal with:

  • The recovery of children who have been abducted from their habitual place of residence. EU procedures are already based on Hague Convention rules
  • Child residence and contact court orders any other dispute relating to the child’s welfare

Again it is not clear what would happen under a Brexit deal and whether we remain part of Brussel IIa. However if there is a “no deal” unlike now not all EU member states (France, Spain, Germany, Austria, Hungary, Lithuania, Latvia, Malta, Romania, Bulgaria, Belgium, Ireland, Croatia, Slovenia and Greece) will recognise a final certificate of divorce (Decree Absolute) made in the UK.  The party who is a national of that country will have to take advice from a lawyer in that country to have it recognised there.

Being signatory to a Hague Convention means you still have to make an application in the country where the order was made to be enforced in accordance with that country’s domestic laws, but the order made in the originating country, so long as it is not contrary to the enforcing country’s domestic laws, should be upheld in the enforcing country without the need for the matter to be decided again.

As it is already the case, when enforcing an order made under EU law, legal advice from a local lawyer in the country where enforcement is to take place will still need to be sought. Helen Pidgeon Solicitors have connections with lawyers abroad and can help to obtain that necessary local legal advice in the other country quickly.

Relocation of children abroad

When there are minor children involved, it’s not unexpected for the foreign parent, who has or shares the day to day care of the child, to want to return to their country of origin especially if they have family there. They are unable to do so without the consent of the other parent or a court order if that parent does not consent. If this is something that you are considering or you are concerned your spouse or partner may be contemplating then do ensure you take urgent legal advice. If you have an international family with or without EU connections and are considering divorce or separation or have a dispute related to your children where another country is or could be involved, you should seek legal advice as soon as possible as urgent steps may need to be taken to protect your position.

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