Jay Patel discusses Brexit and family law: do you need to take action before 31 December?

  • November 02, 2020
  • By Jay Patel, Partner

Jay Patel, Partner

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

When the Brexit transition period ends many aspects of our lives will be affected, and family law is no exception. Over the past decades, family law in England has incorporated elements of EU law in respect of determining in which country a case should be heard, and as to the recognition and enforcement of judgments between EU states.  At 11pm on 31 December 2020 those laws will cease to apply. Whilst in some respects it remains unclear what will replace them, there is much we do know, and in some cases it may be important to take steps before 31 December to protect your position.

A crucial element of the Withdrawal Agreement was the provision that, for all divorce and financial proceedings started by 31 December, the European regulations on recognition and enforcement will apply to all orders subsequently made in the proceedings – even where the orders are not actually made until much later. In many cases, these regulations will provide a smoother path for recognition and enforcement of orders in EU states that may exist after 31 December.

Divorce recognition is important if you subsequently need to have your divorced status recognised abroad, for example, if you wish to remarry abroad. For all divorce proceedings started by 31 December 2020, this recognition will be automatic between England and EU states. However, for divorce proceedings started on or after 1 January 2021, different rules will apply in different countries, and some – including Ireland – will not recognise all English divorces.

Recognition and enforcement of financial orders may be important if a family has assets in an EU state, or if one partner lives in or moves to an EU state. In those circumstances an order in that state may be needed to implement the English order, for example if the other party does not comply with it.

Therefore, if you have decided to divorce, and have connections with an EU state, starting your divorce and financial proceedings before 31 December may well be beneficial in the long run.

The rules on when an English court will be able to hear a divorce case and the related financial proceedings are also changing. Different countries take very different approaches to financial settlements on divorce, with the English courts known for being more generous to the financially weaker party than many European courts. At the moment, if the parties are sufficiently connected to both England and an EU state, the case will take place wherever proceedings are started first – the “first to issue” rule. This has resulted in the “race to issue”, where a husband and wife may each try to start proceedings in different countries as quickly as possible. In other cases, it means one spouse doesn’t tell the other they have decided to start divorce proceedings, so that they can secure the court of their choice.

As things stand, this will change, and from 1 January 2021, where the parties have connections with both England and an EU country such that either country could hear the divorce proceedings, the English court will decide whether or not to hear the case based on with which country the parties have the closest connection. This system, known as “forum conveniens”, already applies where the two possible jurisdictions are England and a non-EU state. Whilst many consider this approach fairer, it does have downsides – it is less certain, and legal fees are incurred in debating with which country the parties are more closely connected. There is also a risk that courts in two countries (or no country), could consider that they should hear the case.

Therefore, if both England and an EU state could potentially hear your divorce and related financial proceedings, and you have a preference as to where they proceed, it would be sensible to start proceedings now, in your preferred country, whilst the “first to issue” rules still apply.

If, however, the UK joins the Lugano Convention, then the “first to issue” rules will return. The Lugano Convention operates between the EU, Iceland, Switzerland and Norway and covers jurisdiction, recognition and enforcement for certain financial orders on divorce. The UK has requested to join, but this is only likely to be agreed as part of an overall deal with the EU. Whilst joining would mean easier enforcement of English financial orders in EU states (and vice versa), it would also mean the “first to issue” rules would return. Even if the UK joins Lugano, however, that membership is unlikely to take effect from 1 January 2021, so there is likely to be at least some period when the “forum conveniens” rules apply.

In respect of other applications, such as for financial relief after an overseas divorce, or for financial provision for a child (where the parents were not married), the rules on what degree of connection with England will enable the English courts to hear the case will be changing from 1 January 2021. It is therefore important that anyone considering making such an application, who has limited connections with England, check whether they will still be able to make the application after 1 January and, if not, start proceedings by 31 December.

If you think you may need to make an application before the end of the transition period, it is important to leave plenty of time for this, as the courts are likely to get very busy in the run-up to 31 December. If this may apply to you, get in touch as soon as possible for advice on your position.

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