13 November 2020
Do I need to start my divorce prior to Brexit?
If you are contemplating divorce, then you may need to consider whether it would be beneficial to commence proceedings prior to 31 December 2020, when the transition period following the UK’s departure from the EU comes to an end. This is particularly important if either you or your spouse are nationals of another EU country, if you last resided in another EU country while married, or if there are marital assets such as property in another EU country.
‘Unhappy couples often try to get through Christmas and put off calling a divorce lawyer until the New Year.’ However, Claire Filer a partner in our family law team says ‘If there is any international aspect to your relationship, it is a good idea to speak to a solicitor as soon as possible to discuss your particular circumstances and the options available to you prior to the end of the transition period on 31 December 2020.’
Advantage of being the first to issue divorce proceedings
If you are an international family with links to more than one jurisdiction, there may be a number of places where you can issue provided you meet the basic jurisdiction criteria. At present (as between two or more EU countries – including the UK during the transition period) the country where proceedings are first issued is the jurisdiction that will have priority to formalise the divorce and also determine financial matters. This can mean that where one country has a significantly better outcome financially for one party to the marriage there can be a ‘race to the courts’. Acting quickly can give you an advantage.
Naturally, it will be more convenient to have your divorce heard in your home country, but your solicitor will also advise whether you could achieve a more favourable outcome elsewhere directing you to the appropriate local experts so that you can make an informed decision about the competing jurisdictions.
At present, if you have certain connections to two or more EU countries then EU law dictates where you can issue your divorce proceedings.
These connections primarily relate to residency (i.e. the country where you are both habitually resident or, depending on certain other qualifying criteria, where one spouse resides).
In these types of circumstances, under the current EU rules you could be entitled to pick in which country you would prefer to issue divorce proceedings.
Florence is French and is married to Fred who is a UK national. They lived together in London, however they have separated, and Florence has returned to live in Paris. Applying the EU legislation, in this scenario either Florence or Fred could choose to issue divorce proceedings in the UK because they were last habitually resident there and Fred still lives there. Alternatively, Fred could choose to issue in Paris as Florence (as the respondent to the divorce) is habitually resident there. Florence herself however could not issue in France until she has been living there for 6 months.
Under the current law until 31 December 2020, if the UK has jurisdiction and you issue your divorce here before Brexit, then this would prevent your spouse issuing proceedings in another EU country. Your divorce and associated financial matters would be dealt with under UK law which may (depending on the circumstances of your case and the other jurisdiction involved) produce a better outcome for you..
How this could change in 2021
After 31 December 2020, EU laws will no longer apply automatically.
At the time of writing this article, there is no exit deal in place to stipulate how other EU member states will treat UK divorces after this date. This means it will not always be as clear post 31 December 2020 what would happen if your spouse decided to issue a divorce in a part of the EU after you have issued in the UK (or vice versa).
Depending on what happens, the “first past the post” rule may no longer apply as between the UK and countries in the EU meaning that there could be expensive jurisdiction arguments about which country the proceedings should take place in (as there currently is between the UK and the rest of the world where there are competing jurisdictions) with courts determining which country is most appropriate to deal with the proceedings (for example based on closest connection) rather than who happened to issue first. What remains unclear is how EU countries will deal with such cases and whether they will continue to apply the first in time rule even where the UK has a closer connection to the marriage.
EU recognition of a UK divorce
At present, all UK divorces are automatically recognised in the EU which means you do not require additional court proceedings elsewhere in the EU to ensure your divorce is legally binding there. This can be important if you want to remarry or if you hold property in another EU country.
How this could change in 2021
From 1 January 2021 a UK divorce will no longer be automatically recognised in all EU countries.
At present some EU countries are signatories to a separate agreement with the UK, known as the Hague Divorce Recognition Convention. This convention will still apply even after the UK exits the EU and all signatory countries will still recognise your divorce. Those countries are: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia and Sweden.
You will note from this list that a significant number of EU countries are not signatories, namely: Austria, Belgium, Bulgaria, Croatia, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Romania, Slovenia and Spain. This means without alternative deals being put in place these states will not automatically recognise a UK divorce and whether a UK divorce is recognised will depend entirely on that country’s national law. If you have connections to one of these countries you may require legal advice on how your divorce can be recognised in that country.
It is important to address the issue of legal recognition as there can be far-reaching implications regarding benefits, inheritance, financial entitlements and even the ability to remarry outside the UK.
A question of timing
If you formally start your divorce proceedings in the UK prior to the 31 December 2020 you will still benefit from the existing EU laws. This means that your spouse cannot also take separate proceedings elsewhere in the EU, and your divorce (once finalised) will be automatically recognised across the whole of the EU.
The timing may also be important for a different reason. It may be worth waiting until after 31 December 2020 to issue proceedings in some cases as the UK legislation may make it easier to issue in the UK than it was before Brexit.
In either scenario it is important to take expert advice as the best way to proceed will very much depend on the individual circumstances of your family.