The Rules Regarding Divorce And Maintenance In A No-Deal Brexit

Currently England and Wales looks to the Brussels IIa for the rules as to which EU member state can determine divorce and matrimonial matters, as well as other family matters such as resident and parental contact. 

These rules allow civil judicial co-operation, deciding which county’s law applies, where the case should be held and enforcement of any judgement in another EU member state.  Should a person wish to divorce a spouse based in another member state (other than Denmark) there needs to be a domicile connection with England or Wales and the court will then decide on which country’s court should deal with the divorce – based on where the family has the closest connection.  The 1970 Hague Convention on the Recognition of Divorces and Legal Separations then provides the rules for the recognition of the divorce. 

With a no-deal Brexit on the table and yet no news on whether a deal may sweep in at the last moment, the House of Commons has released a Briefing Paper: ‘Getting divorced if there is a no-deal Brexit’.  Should the UK crash out of the EU on the 31st October, the EU member states would no longer be obliged to apply the Brussels IIa rules to UK cases nor would they be obliged to enforce or recognise decisions made in UK courts. Instead, the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019 (or Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgements) (Amendment etc) (EU Exit) Regulations 2019 for divorce and dissolution of same sax marriages) were made earlier this year in preparation for a no-deal Brexit and will come into force the day we leave the EU: revoking the previously used Brussels IIa rules for England and Wales, as well the Maintenance Regulation for the UK for any new cases  

Shadow Justice Minister, Yasmin Qureshi, in January this year stated that:

“16 million cross-border disputes on family matters, 14,000 international divorces and approximately 1,800 child abduction cases” were at the time active.  It is therefore important that processes are put in place should the Brussels IIa and Maintenance Regulation be revoked. 

The guidance issued in the Briefing Paper has stated that in the instance of a no-deal Brexit, the Hague Conventions on family law (which cover many of the same areas of the revoked rules and regulations) would be switched to.  This would cover: 

• Parental responsibly matters for jurisdiction, recognition and enforcement 
• Rules for the return of abducted or wrongfully retained children 
• Maintenance recognition and enforcement 
• Central authority co-operation 

The Family Law Act 1996 also implemented the Hague Convention in regard to divorce recognition.  On leaving the EU the UK would; 

“take the necessary steps to formally re-join the 2007 Hague Maintenance Convention (in which we currently participate because of our EU membership). We will seek to ensure that the convention comes into effect as soon as possible after exit. Parties would need to consider the implications for any new maintenance applications made during any gap in coverage of the 2007 Hague Convention.” 

For any areas that the Hague Convention 2007 does not cover, the Brussels IIa rules would be repealed, and instead Article 3 of the Brussels IIa would be replicated into English, Welsh and Northern Irish law – Scottish Government is considering the best approach for areas of divorce jurisdiction. 

Where a case has already begun to be considered in an EU court and the UK would have to halt any divorce proceedings, this rule would be revoked and cases will be treated as they are for divorce and civil partnership dissolutions currently outside the EU; the UK courts will decide which is the most appropriate court to hear the case. 

When it comes to maintenance, as there is no provision within the Hague Convention, there is expected to be a time of ‘potential loss of effectiveness and efficiency’, and the draft statutory instrument currently makes provisions to return to the rules of common law or statutory rules that were in place before the Maintenance Regulation and other rules came into force.  Eventually the Brussels IIa jurisdiction grounds will be replicated into domestic law in England, Wales and Northern Ireland. 

There has already been guidance issued for people either going through or planning a divorce that will be ‘cross-border’, advising they seek legal advise regarding the current state of affairs.   

Legal professionals have had guidance published confirming that the Brussels IIa will no longer apply to new divorce cases in England and Wales: 

“As retained EU law it is revoked, and jurisdictional rules for the court in England and Wales which replicate those in Brussels IIa have been inserted into section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, by the Jurisdiction and Judgements (Family) (Amendment etc.) (EU Exit) Regulations. Sole domicile as a ground of divorce etc jurisdiction has been added. The court in England and Wales will have a discretion to stay proceedings when there are proceedings continuing in another jurisdiction.” 

Where there are current ongoing divorce cases in an EU member state after a no-deal Brexit, the Brussels IIa will apply if the respondent is domiciled in the UK.  For new divorce cases after a no-deal Brexit, as there is no international law other than the Brussels IIa, cases will be governed by the national rules of the member state where the application is made. 

UK courts will continue to recognise divorces granted in EU member states as the rules for recognition are set out in the Family Law Act 1986.  To recognise orders made in the UK before 31 October there must be a ‘declaration of enforceability’.  For orders made after Brexit, it will be up to each member state’s national rules whether the divorce will be recognised, unless they are party to the 1970 Hague Convention.   

However, should the UK come to an agreement with the EU before 31st October, the Government plans to revoke the EU Exit Regulations in their entirety, therefore it still seems that many are still none the wiser on where they stand.