Could my divorce be affected by Brexit?
As the media talks of “teething troubles” from the new trading arrangements with the EU, we consider the impact on divorce where there is a cross border element, involving residents or nationals of EU Member States.
Will my divorce be recognised in the UK and the EU?
Firstly, UK divorce orders prior to 31st December 2020 will continue to be automatically recognised in the EU and the UK will recognise divorce orders made in the EU.
However, since 1st January 2021, divorce proceedings will be governed by the Family Law Act 1986 which implemented the 1970 Hague Convention* on the recognition of divorce and legal separations. This means that only those countries that have signed up to the Convention will recognise divorces ordered from the UK and vice versa. Not all countries in the EU have signed up to the Convention; for the countries that have not, you will need to rely on their respective national laws and you should seek advice from a solicitor in the relevant country if you need to have your divorce recognised there.
If you are in a same sex marriage or civil partnership, similar rules apply under UK legislation for recognition of divorce and dissolution to those for opposite-sex divorce.
Getting divorced when you have ties to an EU country
The second impact of Brexit relates to the jurisdiction of the courts in England and Wales if you have close ties to a country in the EU. The rules haven’t changed significantly from the pre-Brexit position and we expect the majority of people looking to divorce in England and Wales to have the right to start proceedings in England and Wales post Brexit if they would have done so under the previous legislation. When starting divorce proceedings, let your solicitor know if you are not a UK citizen or are habitually resident or living elsewhere.
If you and your spouse have different views on where to start your divorce proceedings, the EU and the UK have now diverged in their approach;
- the EU continues to accept the jurisdiction of the country where a party first issues proceedings,
- the UK will recognise the country with the “closest connection” to the divorce as having jurisdiction.
If you are not a UK citizen or are habitually resident or living elsewhere, you should ensure that you are well informed about the advantages or disadvantages of starting proceedings in one particular country over another. If divorcing via the UK courts would be beneficial, one should issue one’s petition quickly in order to avoid that one’s spouse issues in elsewhere first.
Valuing business assets post-Brexit
If you find yourself in financial remedy proceedings with business assets which are being negatively affected by Brexit, it will become even more crucial than usual to get an accurate valuation of the business to ensure that any settlement is fair and reasonable.
While the impact on your business from greater bureaucracy or tariffs for trade to and from the EU may be temporary, you may be stuck with it forever when it comes to your financial settlement. You should speak to your solicitor about the likely impact on your claim of an under or overvalued business asset.
* The 12 EU member states that are currently party to the 1970 Hague Convention on Divorce Recognition are Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden.