How will Brexit affect divorce proceedings?
The House of Commons Library has published a briefing paper which considers how getting divorced might be affected by a no-deal Brexit and deals with the position in England and Wales except where stated otherwise. It does not deal with family law matters relating to children and the payment of maintenance.
Whilst the substantive law governing divorce is domestic and therefore unlikely to be affected by Brexit, there may well be changes to the procedure of divorce. Civil judicial co-operation in family law is the legal framework that governs the interaction between different legal systems in cross-border situations, including divorce. In order to provide certainty and avoid litigation in the courts of more than one country on the same dispute, there are rules which determine which country’s law applies, which country’s courts have jurisdiction to hear the case and the recognition and enforcement in one country of a judgment obtained in another country.
Currently there are two directly applicable EU regulations which deal with civil judicial co-operation in family matters: Brussels IIa and the Maintenance Regulation. Both regulations deal with procedural matters rather than substantive law. Currently, divorce jurisdiction in England and Wales for all cases, regardless of whether or not there is an international dimension, is primarily based on Brussels IIa rules. When divorce and/or financial provision proceedings are issued in England the court needs to decide whether it has jurisdiction to deal with the matter and whether it is the best country to do so.
If the UK leaves the EU without an agreement relating to these matters, Brussels IIa and the Maintenance Regulation would no longer operate reciprocally. EU member states would not be obliged to apply these rules to cases involving the UK, nor would they be required under the regulations to enforce or recognise decisions of the courts in the UK.
The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 were made on 6 March 2019 as part of the Government’s preparations for a no-deal Brexit. They will come into force on exit day. These regulations revoke Brussels IIa for England and Wales and Northern Ireland and revoke the Maintenance Regulation for the UK, except in relation to proceedings or applications which have already started before exit day. Separate regulations, the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019, would apply the same rules on jurisdiction, recognition and enforcement to divorce of same sex couples and civil partnership dissolution.
The Government would then look to enact new domestic legislation which would replicate the applicable Brussels IIa grounds for England and Wales and Northern Ireland, and make a further ground of sole domicile applicable to all cases.
If there is a deal struck by exit day, then the terms of this deal would determine which rules would apply in respect of civil judicial co-operation in family matters after exit day.
The message to take away from all this is regardless of whether the UK leaves the EU with or without a deal, it will still be possible to issue divorce or dissolution proceedings. If you are considering doing so, it is important to get legal advice from the outset to know what is in your best interests. At Barker Gotelee our family department offer an initial 45 minute consultation with one of our family solicitors to discuss your situation and how we can help.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Suffolk.