Brexit – what does this mean for international divorces?

No-one knows for certain what will happen in international divorce cases when the UK leaves the EU – Theresa May has suggested in the last few days that all EU laws will be incorporated into UK domestic legislation but this is unlikely to benefit UK citizens in international divorce cases unless there are reciprocal rights, so this will need further thought.

There are a number of EU regulations and international conventions‎ which may no longer apply to divorce cases in England (and Wales) and which may have to be re-negotiated over time, leaving a very uncertain situation in the meantime. However, anyone currently involved in (or contemplating) an international divorce case cannot ignore the difficulties this may cause them in the future.

A number of issues / considerations apply:

– at the moment, a divorce obtained in an EU state (other than Denmark) is currently recognised throughout the EU. If the current EU regulation ceases to apply to the UK, recognition of an English (Welsh) divorce will be a question of national law. If you are a foreign national currently divorcing in England, it would be prudent to check whether an English divorce will still be recognised in your state of origin if England is no longer a member of the EU;

– if it is likely that you will obtain an English maintenance (periodical payments) order against your partner or former partner for you or your children and the payer is living in another country within the EU, will this still be enforceable?

– sim‎ilarly if there is an order that a property located in mainland Europe is transferred to you for the purpose of providing you with a home, will that be enforced in another EU state once the UK leaves the EU? In this and the above example, can you obtain a mirror order (i.e. an order in the other country in the same terms as the original order) in the country of enforcement (i.e. the country where the property or person paying maintenance is living)? If not, obtaining a more favourable financial award in England may be a futile exercise. It is certainly imperative that your case is dealt with in England as quickly as possible while the current rules apply;

– British expats or foreign nationals living in the EU may also have difficulties in enforcing foreign maintenance or property orders in England once England is no longer a member of the EU;

– if you agree to your child(ren) moving to or from England as part of a divorce or separation and obtain an order for contact (access), will this be recognised? Again, a mirror order should be considered;

– for those negotiating a prenuptial agreement in England involving one or more EU nationals, consideration needs to be given to jurisdiction clauses. Currently, a clause providing that a divorce be dealt with exclusively in one EU state would not be effective. Going forward, these clauses should be considered as they may assist in ensuring that a divorce is dealt with in one particular EU state. On the other hand, it is possible at the moment to agree in advance which EU state may deal with maintenance and that a particular law (other than English law) will apply to maintenance. This may not be effective in the future.

‎Therefore, even though no-one can tell you yet what will happen when the UK leaves the EU, it is important that you take advice now from an international divorce specialist if you are currently involved with (or contemplating) an international divorce.

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