Will the Brexit divorce affect my separation? – an update

In October 2018 we published an article looking at the Government guidance issued on 13 September 2018 as to the impact of a "no deal" Brexit on civil legal cases, specifically considering the impact of the Brexit divorce on divorces and other areas of family law. Whilst possibly not at the forefront of most people's minds when it comes to Brexit, with 16 million international families in the EU and around 140,000 international divorces within the EU each year, the potential impact of any change is huge.

At the time of that guidance the Government insisted that a no deal scenario was very unlikely but six months on and at the time of preparing this article still nothing is certain and the possibility still remains that we could leave the European Union (EU) on 12 April, or a later date, without a deal i.e. with no Withdrawal Agreement.

So what do we know? In January the EU published it's own guidance on the impact on a "no deal" scenario on civil and commercial matters, including insolvency and family law and following that the Law Society of England and Wales and Resolution, an organisation of family lawyers and other professionals working in the family justice system, published a note of guidance to family lawyers. This was updated on 21 March 2019. The Government has been introducing a series of Statutory Instruments (SIs) that would apply in such circumstances and the Ministry of Justice has just published guidance for professionals and members of the public.

Below we set out what you are likely to need to know if you and your ex are from different Member States, you lived together in another Member State or you now live in different Member States.

Q. I am currently divorcing my ex who was born in another member state, what should I do?

A. Under the current arrangements a divorce /civil partnership dissolution in any member state is automatically recognised in another without any special procedure being required. This will end on the day that we leave the EU ("exit day") and in the event of a "no deal" the national rules of each individual Member State will apply. Around half of the Member States are parties to a 1970 Hague Convention which means that it is highly likely they will recognise divorces/dissolutions in England and Wales but 15 Member States are not parties to this Convention including France, German and Spain.

There could be particular issues for same sex relationships as some Member States still do not permit same sex marriage or civil partnerships. In addition, the 1970 Convention does not apply to annulled marriages so it is particularly important to take advice in such cases.

If you are not sure whether the other Member State will recognise your divorce or dissolution then you should take urgent advice from local lawyers and consider applying to the family courts here to try to expedite your divorce or dissolution to try and obtain your decree absolute/final order before exit day. In addition, the guidance from the EU suggests that it is not enough for the divorce/dissolution to be completed before exit day but a certificate in accordance with EU Regulations should also be obtained from the courts here.

Q. I am already divorced, am I affected?

A. If you need to rely on your divorce/dissolution in another Member State after exit day - for example because you want to get married there or assert a property right that would be affected - then you should make sure that not only has the decree absolute/final order obtained but also the relevant certificate and if it hasn't then apply for them before exit day.

Q. We separated a long time ago but we have children together. I have an order saying that they live with me and they spend some weekends and holidays with my ex. Do I need to do anything?

A. You should check with your solicitor whether the required certificate was obtained at the time to enable you to enforce the order in the other member state in case there are problems in the future. Currently EU Regulations allow orders for contact (also known as "access" or "child arrangements") and orders for return of a child to be directly enforced in another member state provided appropriate certificates have also been obtained. For orders that say with where a child shall live (known as "live with" or "residence" or "custody" orders) an exequatur needs to be obtained and registered with the other member state.

Q. I pay my ex maintenance and she now lives in another Member State, do either of us need to do anything?

A. Member States have been given guidance that after exit day a UK maintenance order will only be recognised if an exequatur has also been registered, before exit day so if the maintenance is paid pursuant to such an order your ex should be advised to check whether this has been done. You may also want to obtain an exequatur if there is a risk that if your ex couldn't enforce the original order they would then bring separate proceedings which might produce a less favourable result for you. So you should take advice.

If you are considering applying for maintenance for yourself or for a child against an ex partner, or to vary an existing order, but have not yet done so and the other party resides in another Member State then you should take urgent advice as to whether it is better to start the proceedings now under the EU Maintenance Regulation before exit day, or afterwards when the 2007 Hague Maintenance Convention would apply in the event of no deal being agreed.

Q. I am thinking of getting divorced but haven't applied yet, what should I do?

A. If either of you can issue divorce or dissolution proceedings in England and Wales or another Member State and there may be a dispute about where the proceedings should take place then you should take urgent advice as to whether to start divorce proceedings before exit day as the jurisdiction of your divorce can have significant implications for the types of financial orders that can be made on divorce or dissolution.

England and Wales is often referred to as the divorce capital of the world because it is believed to be generous to the financially weaker party in a marriage or civil partnership due to the long term maintenance orders that can be made and the wide discretion judges have to achieve a fair outcome. At the moment if divorce or similar proceedings could be initiated in England and Wales or in another Member State the question of which country has jurisdiction to deal with the divorce, also known as forum for the divorce, is determined on where proceedings are issued first. On leaving the EU without a deal the closest connection test would apply as is the case currently in any cases between England and Wales and other non EU country. If jurisdiction for the divorce is disputed then this can mean additional court proceedings to resolve that before any substantive proceedings can get under way.

The main Brexit SI brought in by the Government extends one of the qualifying criteria to be able to apply for a divorce in England and Wales to include what is known as sole domicile as a primary ground (it is currently only a residual ground). Due to what seems to be an oversight at the present time sole domicile as a primary groundhas not been extended to civil partnership or same sex marriages. Domicile is a difficult concept, it is similar to nationality but not entirely the same. It can affect what maintenance claims can be made or whether they will be enforceable in other Member States so it is extremely important to obtain specific legal advice if you think this issue affects you.

If you are concerned about any of the matters raised in this article then our specialist family law solicitors at Rollits will be happy to help.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.