The post-Brexit reality for divorce
At the beginning of 2021 the law changed concerning how international couples divorce. At the time, there was a lot of worry that the changes in law would lead to divorces involving international couples becoming more complicated, with some individuals left worse off under the new rules.
Eight months on, what are the realities – are couples impacted negatively by this law change and how has it changed how international couples divorce? Has it created new trends? And importantly, what do family lawyers need to be aware of?
Firstly, the law change means that for divorce cases brought on or after 1 January 2021, the grounds for jurisdiction have changed, albeit slightly:
- Sole domicile has been added to the primary grounds.
- Following the High Court decision in Marinos v Marinos  EWHC 2047, it’s only necessary to be habitually resident on the day the proceedings were issued, provided there was ordinary residence for the prior six or 12 months, as applicable.
- The requirement of only habitual residence on the day of issue, rather than for the three months preceding the proceedings under EU law, makes it possible to bring more proceedings in England.
Because of these changes, care is now needed when submitting divorce petitions in the UK, especially for cases with links to other countries.
Post-Brexit it is now more important than ever to consider not only where the best outcome can be achieved, but also whether the divorce will be recognised aboard.
Of course, prior to Brexit, Brussels II gave automatic recognition of a divorce pronounced in another EU state. That is not the case for divorces started on or after 1 January 2021 and whether a divorce is automatically recognised now depends on whether the corresponding EU country is a party to the 1970 Hague Divorce Recognition Convention.
Where they are not a signatory, recognition will depend entirely upon the national laws of that country. I would recommend lawyers practicing in England and Wales to always seek advice from a lawyer in the relevant country.
Because of the rule change, it is also important to mention that sole jurisdiction is not a ground for a divorce in the EU and if pleaded in an English petition, can cause problems with recognition elsewhere.
Before Brexit, the EU law meant that in practice, divorcing in one EU country did not stop a spouse from making a separate claim for maintenance in England and Wales. Consequently, this gave rise to a degree of forum shopping and London became a very attractive destination, known for its generous maintenance awards.
However, after the UK’s departure, the EU Maintenance regulation no longer applies and the 2007 Hague Convention on the International Recovery of Child support and other forms of Family Maintenance is relied upon.
The Convention applies to:
- Maintenance obligations arising from a parent‐child relationship towards a person under the age of 21. Any contracting state can limit the application to the age of 18. Child support only relates to a parent‐child relationship and so is a narrower remit than that under the MR;
- The recognition and/or enforcement of a decision for spousal support when made within a claim relating to a child as above;
- Spousal support
Although cross-border divorces aren’t a mainstay for many lawyers, it’s very typical to see families in the UK with an interest in EU countries, even if this is a holiday home in Spain for example. If we do not consider jurisdiction or recognition of the orders abroad, this may cause difficulties, and even in cases with no great assets it can be important. If there are any connections with other jurisdictions, whether in the EU or not, it is best to communicate with specialist lawyers from the relevant country to consider where it would be best to issue.
Iwona Durlak, Co-founder and Senior Partner at IMD Solicitors