Solicitor Rebecca Ledgerwood, in our leading Family Law team, discusses the impact of Brexit on divorce proceedings and finances on divorce.
Prior to 1 January 2021, those with connections to EU member states – usually European spouses - had to ‘race’ to get their divorce petition lodged in England & Wales before their spouse filed for divorce in the EU member state. This was because the first spouse to lodge a divorce petition would secure the forum for the proceedings. Additionally, divorce orders i.e. Decree Absolutes and EU member state equivalents were automatically recognised around the EU.
Post 1 January 2021 the criterion for where divorce proceedings should be heard is based on ‘forum non conveniens’. This means that the Courts will be looking at the jurisdiction to which the marriage is has the closest connection.
This is a big change, and moves the emphasis from ‘when’ a petition was filed to the substance of the application. With regard to recognition of EU orders there will be two different schemes. Divorce orders will automatically be recognised where countries are signatory to the 1970 Hague convention. Where countries are not signatories, it will be dependent upon each country’s national law as to whether the orders are recognised or not.
If your divorce proceedings were started before 01 January 2021, transitional provisions mean that your final divorce decree will be recognised within EU member states, regardless of when the final decree is pronounced. This will be useful if for example, you wish to remarry in another EU state.
Finances on divorce
Prior to 1 January 2021 any court to receive a financial application, whether in England and Wales or an EU member state, first retained jurisdiction to deal with the proceedings. All orders made by Courts in England & Wales were automatically recognised and enforceable in other EU member states and vice versa.
From 1 January 2021, the system of first court automatically taking control of the proceedings has changed. Whether a court can hear a matter will depend on the nature of the proceedings, rather than when it was filed. Court orders will no longer automatically be recognised reciprocally between the UK and EU. Orders will now need to be registered in EU countries before they are enforceable.
The laws relating to recognition and enforcement of financial orders within the EU have also changed. Previously, the Maintenance Regulation governed the enforcement of a spousal maintenance order against a paying party living in an EU member state. For new cases from 1 January 2021, recognition and enforcement of maintenance orders will be pursuant to the 2007 Hague Maintenance Convention, to which all EU member states are signatories as is the UK. Under transitional arrangements, if you made an application to enforce before 01 January 2021, the old rules still apply.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.