Do I need to start my divorce prior to Brexit?

If you are contemplating divorce, then you may need to consider whether it would be beneficial to commence proceedings prior to Brexit.  This is particularly important if either you or your spouse are nationals of another EU country, if you last resided in another EU country while married, or if there are marital assets such as property in another EU country.

‘Unhappy couples often try to get through Christmas and put off calling a divorce lawyer until the New Year.’ However, Robert Bellhouse a Family Solicitor in the family law team with Ware & Kay in York & Wetherby says ‘If there is any international aspect to your relationship, it is a good idea to speak to a solicitor as soon as possible to discuss your particular circumstances and the options available to you prior to Brexit.’

Advantage of being the first to issue divorce proceedings

Usually, the country where proceedings are first issued is the jurisdiction that will have priority to formalise the divorce and determine any associated financial matters, provided you meet the basic jurisdiction criteria.  At present this means that there can be a ‘race to the courts’ and if you get your divorce petition issued first then you will be in control of which country hears your divorce.  Acting quickly can give you an advantage.

Naturally, it will be more convenient to have your divorce heard in your home country, but your solicitor will also advise whether you could achieve a more favourable outcome elsewhere.

At present, if you have certain connections to two or more EU countries then EU law dictates where you can issue your divorce proceedings.  Typically, you would be entitled to issue in either EU country. 

These connections primarily relate to where you have resided or in which country you are a national and they can arise in a number of ways, for example:

• because you or your spouse are a national of another EU country and you have returned to live there for a period of at least six months; or
• as spouses you last resided together in a different EU country and, since separating, one of you still resides there.

In these types of circumstances, under the current EU rules, you could be entitled to pick in which country you would prefer to issue divorce proceedings. 

If you reside in the UK and issue your divorce here before Brexit, then this would prevent your spouse from issuing proceedings in another EU country.  Your divorce would be dealt with under UK law and you would also be saved the need to travel to another court in Europe to deal with your divorce papers, perhaps saving instructing a foreign lawyer and translator.

How this could change in 2021

After 31 December 2020, EU laws will no longer apply automatically. 

At the time of writing this article, there is no exit deal in place to stipulate how other EU member states will treat UK divorces after this date.  This means it will not always be as clear post 31 December 2020 what would happen if your spouse decided to issue a divorce in a part of the EU after you have issued in the UK.

If we exit with no deal on 31 December 2020 then UK law will decide if you can issue your divorce in the UK.  This will be based on the country to which you as a family have the closest connection.  The closest connection test is presently used by the UK courts when deciding if they have jurisdiction in divorce proceedings where a close tie exists with another country from outside the EU. 

This may mean that you no longer have the right to issue divorce proceedings in the UK and could result in the extra hassle of travelling to another country for a divorce and having to navigate their legal system, perhaps without even speaking the language. 

EU recognition of a UK divorce

At present, all UK divorces are automatically recognised in the EU which means you do not require additional court proceedings elsewhere in the EU to ensure your divorce is legally binding there.  This can be important if you want to remarry or if you hold property in another EU country. 

How this could change in 2021

From 1 January 2021 a UK divorce will no longer be automatically recognised in all EU countries. 

At present some EU countries are signatories to a separate agreement with the UK, known as the Hague Divorce Recognition Convention.  This convention will still apply even after the UK exits the EU and all signatory countries will still recognise your divorce.  Those countries are: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia and Sweden.

You will note from this list that a significant number of EU countries are not signatories, namely: Austria, Belgium, Bulgaria, Croatia, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Romania, Slovenia and Spain.  This means none of these states will automatically recognise a UK divorce.  If you have connections to one of these countries, such as owning a holiday home in the South of France, you may require legal advice on how your divorce can be recognised in that country. 

It is important to address the issue of legal recognition as there can be far-reaching implications in regard to benefits, inheritance, financial entitlements and even the ability to remarry outside the UK.

A question of timing

If you formally start your divorce proceedings in the UK prior to the 31 December 2020 you will still benefit from the existing EU laws.  This means that your spouse cannot also take separate proceedings elsewhere in the EU, and your divorce will be automatically recognised across the whole of the EU. 

For further information, please contact Robert Bellhouse in our family law team on 01904 716000 or email robert.bellhouse@warekay.co.uk.