Jay Patel and Polly Atkins examine family law in the lead up to Brexit in Family Law Week

  • November 19, 2020
  • By Jay Patel, Partner and Polly Atkins, Associate

This article was originally published in Family Law Week and can be accessed here

Brexit and family law: do you need to act before 31 December?

As we approach the end of the Brexit transition period, family lawyers should consider the steps they may need to take before 31 December to protect their clients’ interests. At 11pm on 31 December, Brussels IIa, which governs jurisdiction, recognition and enforcement in divorce and Children Act cases, and the Maintenance Regulation, which governs jurisdiction, recognition and enforcement in maintenance[1] cases, will cease to apply in the UK. The provisions which will govern jurisdiction, enforcement and recognition as between English[2] courts and those of EU states after the end of the transition period will need to become familiar to family lawyers, but the purpose of this article is limited to highlighting the circumstances in which action may need to be taken before 31 December to protect a client’s interests – either to secure a smoother process for recognition and enforcement of orders after the transition period, or to secure the client’s preferred jurisdiction.

Recognition and enforcement of divorce, maintenance and children orders

Recognition and enforcement of English divorce, maintenance and Children Act orders in EU member states[3] is currently fairly streamlined. Under Article 21 Brussels IIa, English divorces are automatically recognised in EU states and vice versa. Article 28 of Brussels IIa provides for the reciprocal enforcement of Children Act orders and Chapter IV of the Maintenance Regulation provides a procedure for enforcement of maintenance orders. Broadly speaking, the recognition and enforcement procedures which will operate between England and EU member states after the end of the transition period will be of narrower application, and with more scope for EU member states to decline recognition and enforcement of English orders (and vice versa).

  • Recognition of divorces will, from January 2021, be governed by the 1970 Hague Convention on the Recognition of Divorces and Legal Separations with those EU members states who are signatories of it. However, many EU member states (including France, Germany and Ireland) are not signatories to it, and the circumstances in which they will recognise English divorce decrees will depend on their domestic law. Even where the 1970 Hague Convention applies, it does not provide for recognition where jurisdiction for the divorce was based on sole domicile, nor does it apply to dissolution of civil partnerships or nullity decrees, and there are also various bases on which recognition can be refused.
  • The 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance will govern enforcement of English maintenance orders in EU states[4]. It has broader provisions than the Maintenance Regulation in respect of when recognition and enforcement may be refused, and contains indirect rules of jurisdiction, meaning recognition and enforcement can be denied based on the jurisdictional grounds of the original order. The UK may become a party to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[5], in which case recognition and enforcement of English maintenance orders in EU states[6] will, again, be relatively straightforward with limited grounds on which recognition and enforcement can be refused. However, it remains uncertain whether the UK will join the Lugano Convention and, even if it does, this membership will not now be able to take effect immediately upon the end of the transition period, and the 2007 Hague Convention will apply in the interim.
  • The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (which already applies as between England and a number of non-EU states such as Australia, Canada and the US) will govern enforcement and recognition of Children Act orders between England and EU member states. There are a number of differences from Brussels IIa, including the need to register the order in the foreign jurisdiction prior to enforcement.

Crucially, under Article 67 of the Withdrawal Agreement, Brussels IIa and the Maintenance Regulation will continue to apply in all divorce, financial and Children Act proceedings “instituted” before the end of the transition period. This means that orders made in such proceedings will benefit from the recognition and enforcement mechanisms of Brussels IIa and the Maintenance Regulation, even if the orders themselves are not made until long after the end of the transition period. Whilst the meaning of “instituted” is not clear from the Withdrawal Agreement, EU law or English law, the current consensus is that it will be best to err on the side of caution and treat it as meaning “issued”, unless guidance to the contrary is released. Similarly, it is likely to be safest to issue Form A rather than relying on the prayer in the Petition to ensure financial remedy proceedings have been “instituted”.

Generally speaking, Brussels IIa and the Maintenance Regulation are likely to provide a smoother path for recognition and enforcement of English divorce decrees and orders in EU states than will exist for cases instituted after 31 December. On that basis, if at some point your client may need to seek recognition or enforcement in another EU state, issuing proceedings prior to the end of the transition period will be sensible. At the very least, clients should be informed of the potential benefits of doing so, in order for them to make an informed decision as to whether or not to issue. Where proceedings have not yet been issued due to ongoing negotiations, it would be sensible to explain to the other side why proceedings are now being issued, and that it remains the client’s preference to reach a negotiated solution.

Securing jurisdiction in divorce and financial cases

Currently, the lis pendens rule under Article 19 Brussels IIa means that where the courts of more than one EU state have jurisdiction to hear divorce proceedings, the court first seized will automatically have jurisdiction. As jurisdiction in respect of the divorce proceedings brings with it jurisdiction in respect of financial claims arising from divorce, this has resulted in the “race to issue”, with each party aiming to secure the jurisdiction they believe will be more favourable to them (often England for the financially weaker party) by issuing first. From 1 January 2021, the discretionary forum conveniens principle will apply, meaning that whether the English court has jurisdiction will depend on whether England is the state with which the parties have the closest connection.

Therefore, if a client has the option of issuing divorce proceedings in either England or an EU member state, and wants to be certain to secure their preferred jurisdiction, proceedings should be issued in that preferred jurisdiction whilst the lis pendens rule still applies (i.e. by 31 December 2020), particularly if that is not the jurisdiction with which the parties are most closely connected[7]. Under Article 67 of the Withdrawal Agreement, the court’s jurisdiction cannot be challenged in ongoing proceedings after 1 January 2021 on the basis that different jurisdictional rules will then apply to new cases going forward.

In respect of financial applications other than those arising from divorce, for example an application for financial relief after an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984, or for a Failure to Maintain claim under s27 Matrimonial Causes Act 1973, the jurisdictional rules will also change from 1 January 2021 as they will be based on domestic law rather than the Maintenance Regulation (unless and until the UK joins the Lugano Convention). It is therefore important that, if you have a client considering making such an application and the case has an international element, you check whether the English courts will still have jurisdiction to hear the application after 1 January 2021 and, if not, start proceedings by 31 December 2020.

One consequence of reversion to domestic rules of jurisdiction is that parties divorcing abroad with limited connections to England save that they have English pension assets which they wish to share by way of a Pension Sharing Order (PSO) may no longer be able to obtain a PSO. Currently, the English courts can assume jurisdiction to make the necessary PSO under Part III MFPA 1984 via the forum necessitatis provision of Article 7 of the Maintenance Regulation. However, once the Maintenance Regulation ceases to apply, if the parties do not fall within any of the jurisdictional grounds set out in s15 MFPA 1984, there will be no route by which they can achieve a PSO in respect of the English pension.

It is also important to note that whilst the UK has confirmed that jurisdiction agreements made in accordance with the terms of the Maintenance Regulation prior to the end of the transition period will be upheld by English courts going forward, EU member states have made no such commitment. This must be taken into account when considering when and where to issue in any case where such an agreement exists, and in drafting jurisdiction agreements (for example in a nuptial agreement) to be concluded before the end of the transition period.

Finally, if you do conclude that an application needs to be issued before the end of the transition period, avoid leaving it to the last minute, as the courts may be inundated with applications and divorce petitions in the run-up to 31 December 2020.

[1] “Maintenance” in this article refers not simply to periodical payments, but to needs-based awards within the scope of the Maintenance Regulation.

[2] References to England in this article should be read as references to England and Wales.

[3] Save that Denmark is not a party to Brussels IIa.

[4] Other than Denmark, which is not a party to the Convention.

[5] The UK is currently a member of the Lugano Convention via the EU, and the Lugano Convention currently governs jurisdiction, recognition and enforcement of maintenance orders as between England and Norway, Switzerland and Iceland.

[6] Other than Denmark.

[7] Note that with effect from 1st January 2021 the grounds on which the English courts may assume jurisdiction in divorce proceedings will be set out in a revised s5(2) Domicile and Matrimonial Proceedings Act 1973 as Brussels IIa will no longer apply. The grounds will be similar, but not identical, to the grounds currently applicable under Article 3 of Brussels IIa.

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