Brexit – An International Divorce?

The triggering of article 50 by the UK (whereby Britain will leave the EU) is going to lead to chaos in international divorce cases. At the moment, there is automatic recognition of divorce and custody orders, certainty in terms of jurisdiction and EU wide enforcement of maintenance orders. In the absence of new conventions / international agreements this will no longer be the case, and the government’s Repeal Bill does not in any way address these issues.

I gave evidence to the House of Commons setting out issues that those dealing with an international divorce will face http://parliamentlive.tv/event/index/23aa4308-29e8-4878-aae6-3f3e9a8c70cc?in=10:31:35 and many of those views were endorsed in the subsequent House of Commons justice report https://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/750/75002.htm

There may be some improvements to the current system, for example, the removal of ‘race to issue’ may lead to more reconciliations and/or the greater use of out of court dispute resolution, such as mediation. However, this will be at the cost of certainty as instead there will be the possibility of divorce proceedings in more than one EU state, with neither taking priority. This may of course may suit a party who can afford to litigate but it will be hugely detrimental to others.

In the field of asset protection, the lack of certainty may work against the wealthier party. At the moment, it is possible for parties to agree in a marriage contract, prenuptial or postnuptial agreement which EU state will deal with maintenance. In the absence of new international arrangements, this will no longer be possible where the UK and an EU state is involved.

At the moment if there is a divorce in the UK between 2 British expats living outside of the EU, the UK court cannot award maintenance (nor, importantly, which is often overlooked, can it dismiss someone’s maintenance claims). Therefore it is currently a major advantage to the wealthy party if they issue a divorce in the UK, as the weaker financial party cannot claim maintenance. This may no longer apply if the UK leaves the EU. Another issue for expats is that in the past one of the parties had to be domiciled in the UK for a order to be made sharing a UK pension. The introduction of the EU maintenance regulation in June 2011 meant that if there is no other way of splitting the pension then the UK court could do this even if both parties were domiciled outside the UK. Again, this possibility is likely to be lost if the UK leaves the EU.

After Brexit, there is no guarantee that a UK divorce or child custody order will be recognised in the EU, particularly if, in the case of a divorce, there have been competing proceedings elsewhere in the EU. There are also likely to be more financial claims in England after a divorce in an EU state.

Provided the UK signs up in its own right to the Hague Maintenance Convention and its accession is recognised by the EU, it will still be possible to enforce UK maintenance orders on the same basis but EU orders will have to be recognised before they can be enforced.

The main concern though is that there could be a long period where no clear rules are in place which will lead to huge uncertainty for those going through an international divorce. The UK will need to be put in place transitional agreements and there is no guarantee that this will happen in time. The fact that any changes are unlikely to come into effect until April 2019 does not mean that those dealing with cases now can ignore Brexit as even if their case finishes before April 2019 they may still have the issues with recognition highlighted above. It is therefore important to take advice now from an international divorce specialist whether you are contemplating or going through an internaitional divorce.

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