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This briefing paper considers how getting divorced might be affected by a no-deal Brexit and deals with the position in England and Wales except where stated otherwise. It does not deal with related family law matters relating to children and the payment of maintenance.

The substantive law of divorce sets out such matters as the grounds for divorce and how the assets and income of the divorcing couple might be divided. This is governed by national law and is unlikely to be affected by Brexit. However, Brexit may significantly affect procedural matters relating to divorce, particularly in cases involving divorcing spouses from separate EU countries.

Civil judicial co-operation

Civil judicial co-operation in family law is the legal framework that governs the interaction between different legal systems in cross-border situations, including divorce. In order to provide certainty and to avoid litigation in the courts of more than one country on the same dispute, a set of rules sets out:

  • which country’s law applies;
  • which country’s courts have jurisdiction to hear the case; and
  • the recognition and enforcement in one country of a judgment obtained in another country.

Current rules

At present, two directly applicable EU Regulations deal with civil judicial co-operation in family matters: Brussels IIa which provides rules relating to (among other things) jurisdiction in proceedings for matrimonial matters of divorce, legal separation and annulment of marriage, and for recognition and enforcement of one Member State’s judgments relating to these matters in other Member States; and the Maintenance Regulation. Both regulations deal with procedural matters rather than substantive law.

Currently, divorce jurisdiction in England and Wales for all cases – whether or not there is an international dimension – is primarily based on Brussels IIa rules.  

When divorce and/or financial provision proceedings are issued both in England and in a country which is not a Member State, the English court decides whether England or the other country provides the place where the issues can more suitably be tried – where the family has the closest connection. This issue can itself sometimes involve expensive and time-consuming litigation.

The 1970 Hague Convention on the Recognition of Divorces and Legal Separations provides rules for the recognition of divorces and legal separations.

Getting divorced after exit day if there is a no-deal Brexit

If the UK leaves the EU without an agreement relating to these matters, Brussels IIa and the Maintenance Regulation would no longer operate reciprocally. EU member states would not be obliged to apply these rules to cases involving the UK, nor would they be required under the regulations to enforce or recognise decisions of the courts in the UK.

The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 were made on 6 March 2019 as part of the Government’s preparations for a no-deal Brexit. They will come into force on exit day. In short, these regulations revoke Brussels IIa for England and Wales and Northern Ireland and revoke the Maintenance Regulation for the UK, except in relation to proceedings or applications which have already started before exit day. The relevant matters are to be governed instead by existing international conventions and a combination of new and pre-EU domestic rules.

Separate regulations, the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019, would apply the same rules on jurisdiction, recognition and enforcement to divorce of same sex couples and civil partnership dissolution as would apply to divorce of opposite sex couples.

The Government envisages revoking these new statutory instruments in their entirety, if a deal is reached.

The Government has published guidance which deals with the practical effect of no-deal Brexit on family law disputes.

What will be the position after exit day if there is a deal?

The terms of any Brexit deal would determine which rules would apply in respect of civil judicial co-operation in family matters after exit day.

The proposed Withdrawal Agreement, which has not been endorsed by the House of Commons, covers jurisdiction, recognition and enforcement of judicial decisions, and related co-operation between central authorities. It provides that the current EU civil judicial cooperation rules would continue to apply to legal proceedings instituted before the end of the transition period, and that relevant EU law on recognition and enforcement of judgments would continue to apply in regard to judgments in these proceedings.

The associated Political Declaration states that the Parties would explore options for judicial cooperation in matrimonial, parental responsibility and other related matters.

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