Brexit doesn't just affect businesses

Published on 5 min read

On 1 January 2021, family law in England and Wales will look quite different and that may mean you need to take action now before the UK leaves the EU in order to divorce under the current regime.

Divorce

The laws which set out if you are entitled to bring a divorce in England and Wales (called jurisdiction) are currently based on EU law.  This says that you are allowed to bring divorce proceedings in an EU country if you meet one of six criteria.  You can read more about those criteria here

The new laws which come into effect on 1 January 2021 are almost identical to those EU laws.  It is expected that the majority of people looking to divorce in England and Wales on 1 January will still have jurisdiction to issue proceedings here if they would have had jurisdiction under the EU laws. 

It may be possible that you can divorce in more than one country.  Currently, if you can divorce here and in another EU country the country whose court receives the divorce petition first will deal with the divorce. The courts in that country will then have jurisdiction over your case and any decisions about financial settlements will be made using that country’s laws. This has led to races between couples to be the first to get their divorce petition issued.  On 1 January, those races will come to an end and instead we will have a new rule that the country with the closest connection to you and your ex will have jurisdiction.  There will be less emphasis on speed but potentially more opportunity for a dispute about which country is “closest” to you.

We do not know how the other EU countries will deal with these disputes after Brexit so it is important to take legal advice now if you are considering a divorce and you think your ex may try and start proceedings in another country. 

Recognition of an English or Welsh divorce

At the moment, English and Welsh divorces are automatically recognised in the EU countries (except Denmark). 

On 1 January, the position becomes a little less clear.  Some EU countries will continue to recognise English and Welsh divorces automatically because they have signed up to the 1970 Hague Divorce Recognition Convention.  However, not all EU countries have signed up to the convention and whether or not they recognise a foreign divorce will depend upon their national laws.  You may need to speak to a family lawyer in the other country to find out what the position is. 

Financial claims

Currently, an EU law called the Maintenance Regulation governs which country has jurisdiction to deal with a financial claim on divorce.  Just like divorce, under the Maintenance Regulation there are different ways to establish jurisdiction but the key ones relate to where you and your ex habitually reside. 

On 1 January, the Maintenance Regulation will no longer apply to the UK and instead our national laws will fill in the gap.  Habitual residence will continue to be important as will the location of the divorce proceedings.  However, different rules about jurisdiction will apply depending upon what type of financial claim you want to apply for.

Because of Brexit, you may need to act quickly in bringing a financial claim so it is important to take specialist legal advice, particularly where there is a possibility that claims could be made in more than one country.

And if you think you will need to enforce a financial order in an EU country, either because your ex lives or works there or has assets there, it is important to obtain advice now too as it may be easier to start enforcement proceedings before Brexit than wait until the New Year. 

Children

Just as for divorce and financial claims, EU laws govern which country has jurisdiction to deal with arrangements concerning children.  Currently, the general rule is that the country where the child is habitually resident deals with any court proceedings. 

On 1 January, these EU laws will no longer apply.  Instead the 1996 Hague Convention will apply.  This sets out similar rules on jurisdiction to the current EU laws but there are some differences which will be particularly relevant to families who regularly move between countries.  You should take legal advice if you think this applies to you. 

Orders made in children proceedings after 1 January should be recognised and enforced in all the EU countries thanks to the 1996 Hague Convention.  Recognition will not be automatic though (unlike at the moment) and the additional legal processes may cause some delay so it will be important after Brexit to start any enforcement proceedings promptly. It is also important to be aware that whilst legal aid is available (means-tested) for parents applying for recognition and enforcement of orders under the current EU rules, it is not available under the 1996 Hague Convention. This could be really important if you have limited financial means and you should take legal advice quickly to see whether you should start enforcement proceedings before 1 January.

When it comes to child abduction –  the unlawful removal of a child from this country – the current EU rules will be replaced with the 1980 Hague Convention.  Again, the EU rules and the convention are very similar but there are concerns that proceedings under the convention will not be as swift as they currently are under the EU rules. 

Ongoing proceedings

Provided your proceedings started before 31 December 2020, then your case will continue under the current EU-based regime no matter how long it takes to resolve.

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