Family Law and the Brexit Transition Period

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.

Whilst it may not be at the forefront of people’s minds, there could be severe repercussions for individuals who fail to act now where there is a risk that divorce proceedings could brought in more than one jurisdiction. If England is likely to be the more favourable jurisdiction in which to get divorced and resolve the finances, then the message is clear – don’t delay!

The current position

As it currently stands, until 11pm on 31 December 2020, EU law continues to apply in matters concerning family law.

What this means for divorcing couples is that where proceedings can brought in more than one country, it will be the jurisdiction in which proceedings are first brought that will secure the jurisdiction (and the ancillary financial matters). This is the so called “lis pendens” rule which often results in couples racing to court to secure the jurisdiction which is more favourable to them. (Additionally, because of the agreements on mutual recognition, a divorce granted in England for example, is automatically recognised elsewhere in the EU. The same rule applies in respect of orders for maintenance).

It is likely (although we could still hypothetically reach a deal) that after 31 December 2020 jurisdiction issues will then be governed by a system known as “forum non conveniens” or the “closest connection” test. This is a far more complex system which involves establishing which country is the most appropriate for proceedings to take place in based on the parties’ connection with each country. Whilst racing to court to issue proceedings will become a thing of the past, the application of forum non conveniens may result in lengthy court proceedings simply to determine where the divorce should take place before the substantive proceedings are even underway. As with any litigation, costs and delay will be an inevitable consequence.

The message is clear: if you want to secure jurisdiction in England it is important that you issue your divorce petition as soon as possible and, in any event, before the end of the year if possible. This is because under the current rules, you secure jurisdiction by lodging/filing your divorce petition (ie sending it to the court via either the online portal or by paper copy). But after 31 December 2020, it is not certain that this will be sufficient to secure the jurisdiction of the English court. Instead, it would be prudent to ensure that your divorce petition has actually been issued by the court, ready to be served on your spouse. For clarity, lodging refers to the court receiving your petition or application and issuing refers to the date the court deals with/processes that application – a subtle but important difference.

In this blog, we highlight what divorcing couples need to be aware of as we approach the end of the transition period.

I am 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.

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.

Conclusion

If you are considering issuing proceedings and have concerns about your spouse issuing in another jurisdiction, time is of the essence. Any delay in issuing proceedings could affect your chances of securing the best outcome for you.

The court system is already experiencing severe delays and it is expected that there will be a rush to issue proceedings in December for the very reasons mentioned in this blog. Please also bear in mind that the courts are closed over Christmas and New Year which further reduces the window of opportunity to potentially secure the jurisdiction of the English court.