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Family Law and the Brexit Transition Period

Posted on 10 November 2020

With the Brexit transition period due to end on 31 December, there are a number of implications for those contemplating divorce who have connections to another EU Member State, or where either of a child's parents live in another EU state. Parties considering separation or who have cross-border arrangements in relation to children should consider whether they need to take action and/or commence proceedings prior to the end of the transition period.

I'm thinking of getting a divorce. Will things be any different after the transition period ends?

So far as "domestic" cases (where both parties are domiciled and permanently based in England & Wales) are concerned, there will be little change.  In fact, it may increase the number of people who are able to get divorced in England and Wales as it will become easier to rely on a party's "domicile" to establish jurisdiction in the UK. However, where one party resides in another EU Member State, or plans to move there after the divorce, matters may become more complicated.

The jurisdiction of the UK courts to deal with divorce currently depends on an EU instrument – Council Regulation (EC) No 2201/2003 (otherwise known as Brussels IIa). These provisions on jurisdiction will largely be replicated in domestic law after the transition period ends.

At present, Brussels IIa requires each EU Member State to recognise a divorce granted in another EU State. Once the transition period ends and EU law no longer applies, parties will need to rely on the 1970 Hague Divorce Convention (which a significant number of Member States are not signatories to), or the local law of the Member State in question. This could lead to significant additional administration and difficulties in having an English divorce recognised in other EU Member states, and potentially even some divorces granted here not being recognised in some of those countries.

The EU has clarified that, if an application for a matrimonial order (i.e. a petition for divorce) is issued before the transition period ends, the divorce will be recognised by all EU Member States, even if the divorce itself was not granted until after the transition period ends.

In the circumstances, some spouses may wish to issue a petition now, to ensure ease of recognition of the decree across the EU.

Since my ex and I separated 2 years ago, I have lived in England, while he has lived in another EU Member State. Will the end of the transition period affect where our divorce takes place?

It may do.

At present, where two different EU Member States each have jurisdiction to determine a divorce, a "first in time" rule operates – whichever State proceedings are first issued in will be the State to determine the divorce.

In England & Wales, the ability to apply for financial orders on divorce is triggered by the divorce itself (so if the divorce is taking place here, so will the financial settlement). The English courts have a reputation for being more generous to the financially weaker party, and so there has frequently been a "race to court" between spouses, hoping to establish jurisdiction in the Member State that each perceives will benefit them.

Both the UK Government and the EU have confirmed that, provided the divorce petition is issued prior to the end of the transition period, the first in time rule will continue to operate, even if the divorce is not finalised until after the transition period ends.

Where a divorce petition is not issued until after the transition period has ended, the English courts will decide whether or not to hear the application based on the legal doctrine of 'forum non conveniens' – which means that it will consider which of the competing countries is the most appropriate venue for the application. That decision will include factors such as where the parties lived during their married life and where their assets are situated.

This means that parties who issue a petition after 31 December and who disagree about which court their case should be heard in, could be faced with an additional set of legal proceedings to determine where the case should be heard, before the divorce proceedings themselves even begin.

My partner wants to move to Germany with our child. Will the end of the transition period make visiting them more difficult?

Once the transition period ends, there is a risk that enforcing orders for contact with a child living in another Member State will become more complicated and expensive.

Council Regulation (EC) No 2201/2003 (Brussels IIa) provides the legal framework covering jurisdiction, recognition and enforcement of decisions relating to parental responsibility (which includes decisions about who a child lives with).

Under the Regulation, a decision of the English court as to "access" (i.e. the time the child spends with the parent they don't live with, commonly referred to as "contact" in this jurisdiction) will be recognised and enforceable in another Member State without any particular process being required. This is particularly important for parents where their child lives in another member state, or in relocation cases, where one parent moves abroad with the child and the "left-behind" parent finds that after the move, the relocating parent is reluctant to facilitate arrangements for contact. Provided the original order was certified by the English court, the parent living in this jurisdiction can seek enforcement of the order through the local courts as though the order had been made in the other EU country.

There are also particular advantages where a child is moving from one Member State to another. Although jurisdiction ordinarily lies with the Member State in which the child is habitually resident, there is an exception where a child moves lawfully from one Member State to another. When this occurs the courts of the Member State of the child's former habitual residence retain jurisdiction during the three month period following the move for the purpose of modifying any judgment on contact issued before the move. This can be a lifeline for "left-behind" parents who discover that the arrangements put in place prior to the child's departure are not so easy to facilitate after the move. They can seek assistance from their local courts, rather than needing to instigate proceedings in the destination country. 

Once the transition period has ended, the UK will fall back on the 1996 Hague Convention. Although many of the provisions of that Convention are similar to the current position there is nothing that preserves jurisdiction for the courts of a child's previous habitual residence following a permanent move, as outlined above. Further, should a parent wish to enforce a decision in another contracting State (i.e. another signatory to the Convention, which includes all EU Member States), they will need to obtain a declaration of enforceability in the enforcing country, or register the English order there. This process can create delay, during which time visits with the child may be missed.

In the circumstances, if you have an order relating to contact with a child who lives in another Member State, it would be prudent to make sure that it has been certified by the English Court prior to 31 December.

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