Brexit is often termed the UK’s divorce from the European Union, but with Article 50 due to be triggered this week, a Report just released by the House of Commons Justice Committee has highlighted that some of our own divorce laws may be affected upon leaving the EU. It has called upon the Government to prioritise the retention of current arrangements for resolving family law cases which involve the UK and other EU member states, and to seek the closest possible co-operation with the EU in such matters.
There are currently a number of EU regulations which are intended to help resolve potential cross-border conflicts and provide for a system of mutual recognition and enforcement of court orders and decisions throughout the EU. These include where to divorce if it is possible for a couple to initiate court proceedings in more than one country, arrangements for the residence of children and contact with the other parent between member states, and a system for the return of children who have been abducted by one of their parents.
The Government’s planned “Great Repeal Bill” is apparently intended to incorporate all relevant EU laws into UK domestic law, but some of the key provisions relating to divorce and family issues are based on reciprocal arrangements, so it won’t be guaranteed that these will remain in place unless each individual member of state agrees. This could leave couples facing a great uncertainty as to where they stand legally upon divorce or separation if one or the other of them is a national or resides in an EU member state.
Whilst the current laws will remain in place at least until the time we formally leave the EU, it is important that anyone with connections to other EU member states and who is considering divorcing takes advice at the earliest appropriate moment so that they can anticipate any potential jurisdictional issues that may arise. These could include:
- While at the moment a divorce obtained in an EU member state other than Denmark is recognised throughout the EU, if no provisional or transitional arrangement is put in place following our departure, recognition of an English divorce will be a matter for the law of each individual state. If you are a foreign national divorcing in England, it is important to take advice about whether or how the divorce would be recognised in your home country in those circumstances.
- If any financial settlement reached on divorce is likely to provide for a transfer of property located in, or for maintenance payments where the payer is based in, another member state, consideration will need to be given to whether it would be enforceable in that country once we have left the EU. It may be necessary to obtain a further court order in that country so that the terms of the financial settlement can be enforced there. Similar issues may apply for any expats divorcing in an EU member state.
- Where a separating couple have children and it is intended that they live with one parent in an EU country whilst the other parent remains living here, it is important that any English court order relating to the children will be enforceable in that country following Brexit. Advice should be taken before agreeing to any such arrangement, and again, a mirroring court order might be necessary.
- Couples entering into pre or post-nuptial agreements should also anticipate any potential issues where one of them is a national of an EU member state or it is possible that they may move to one. Periodic advice should be taken so that any changes in the law as a result of Brexit are taken into account, with the agreement being updated if necessary.
It is likely that as with many areas surrounding Brexit, there will be a certain amount of uncertainty until or unless the transitional arrangements are agreed or clarified, and it is hoped for the many couples who do have ties with other member states, the call by the Justice Committee to prioritise this is heeded. In the meantime, anyone who is concerned that they may be affected in this regard should contact one of our family team so that we can advise them as to how best they can protect themselves.