Family Law post Brexit: divorce and dissolution

Jemma Pollock (1)
Jemma Pollock
5 min Read

Since the end of the Brexit transition period at 11pm on 31 December 2020, family law in England and Wales is now based upon domestic law and our obligations under existing international instruments. This applies to any cases initiated on or after 1 January 2021; European Union law will continue to apply to cases that were commenced prior to that date.

There have been some key changes in family law in England and Wales as a result of this and just some of these are listed below.

Divorce/civil partnership dissolution

Jurisdiction for divorce - prior to 1 January 2021, the UK applied a principle known as 'lis pendens' to new court applications with the EU, Norway, Switzerland and Iceland, including applications for divorce or dissolution. This provision essentially means that the first person to issue their application secures the country in which they issued for the proceedings, and proceedings in any other country have to be stayed. This was of vital importance, not so much for the divorce itself, but for the financial consequences that flowed from it. A race to issue to secure the best law in your favour was a common occurrence. This provision no longer applies to the UK as of 1 January 2021 and instead, the 'forum [non] conveniens' approach will apply to all new divorce and dissolution applications in England and Wales. This is not a new approach as the same principle has always applied to counties outside of the EU, Norway, Switzerland and Iceland. It means that it will be the most 'convenient' or 'appropriate' jurisdiction that hears the case. This is a question of fact rather than timing, and there can sometimes be a legal dispute as to which country is the most appropriate. Whilst exiting the EU has the benefit of removing the strict 'race to issue', it can result in greater uncertainty and lengthy disputes over the most appropriate jurisdiction. This is also only the law as far as the UK is concerned – EU countries will apply their own law to our cases and may therefore continue to apply the 'lis pendens' approach, so advice in any other relevant jurisdiction could be vital. It remains the case therefore that securing early advice is always a priority, and sometimes taking urgent early action can have long lasting consequences.

Recognition of divorce – previously recognition of divorce in the EU was a matter of EU law. Following the end of the transition period, whether or not a divorce undertaken in England and Wales will be recognised in another EU country is now governed by international instruments or the laws of a specific country rather than EU law. As a result, it is possible that a divorce made in our jurisdiction may not be automatically recognised and enforced in another EU country. This means that couples may still be considered married in such a country unless specific steps are also taken in accordance with their national laws. This sounds strange but it is one of the unintended consequences of the ‘Brexit divorce’. It is therefore always worth securing advice on the status of your divorce as this can have a significant impact on your legal status generally.

Same-sex relationships and divorce/dissolution – recognition of a divorce or dissolution for a same-sex relationship and any financial orders that arise from those may also not be automatic depending on the national laws of the jurisdiction in which enforcement is necessary. As above, advice may be needed in that country.

Financial claims on divorce/dissolution

Sole domicile – in EU law, if a divorce petition is based on the domicile in England of just one of the parties, financial claims are limited to 'sharing' and orders cannot be made for 'needs' or 'maintenance'. This includes spousal maintenance payments but also claims for additional lump sum or property orders to meet one person's 'needs'. From 1 January 2021, sole domicile is a primary ground of jurisdiction for divorce in England and Wales, meaning that the full range of financial orders is possible. There are however two key uncertainties that remain regarding this:

  • whilst maintenance claims will no longer be prevented under the sole domicile ground, there may still be issues with enforcing such orders in another jurisdiction
  • there is also an issue at present whereby sole domicile remains a residual ground, rather than becoming a primary ground, for same-sex marriages and civil partnerships, which may need to be rectified in domestic law

Enforcement – as set out above, there may be cases where financial orders are not automatically recognised and enforceable in an EU member state. Advice may therefore be needed in any country where enforcement may be necessary to ensure that steps are taken where required. Please also see briefing on the Lugano Convention.

Pensions – if you have a UK pension, this can only be shared upon divorce/dissolution if you have a UK pension sharing order even if a divorce proceeds in another jurisdiction. In some circumstances, it may now be more difficult to obtain such a pension sharing order following a foreign divorce so this may need to be checked and taken into account in advance of any settlement or adjudication made in another country but which covers UK pension assets.

Variation – the jurisdiction grounds for a variation of maintenance case are not provided for specifically in domestic law and as such, the current position for this will be developed as cases progress following the end of the transition period.

Relationship agreements & pre-nuptial agreements

Many relationship agreements such as pre- or post-nuptial agreements contain a clause known as a 'choice of court' clause. These are provisions in the agreement which specify that England has jurisdiction to deal with any divorce/dissolution and financial claims if such arise in the future. Under EU law, these clauses were binding upon the couple who entered into the agreement and the UK have confirmed that we will continue to treat them as such. However whether the counterpart EU country will do the same is likely to be dependent upon their national law.

Advice in all countries to which you have a connection is even more vital now than prior to the end of the transition period to ensure that any agreement, and specifically any choice of law clause, stands the best chance of being recognised or being treated as binding.

Domestic abuse orders

The main provisions in relation to civil injunctions for domestic abuse cases have not changed as they were always derived from domestic law. However additional steps may need to be taken for any orders made on or after 1 January 2021 to ensure that such orders are enforceable in other EU countries. As above, it is important that you seek early advice in relation to any such orders to ensure that these provide the protection that you need.

Briefings Individuals & families Russell-Cooke divorce dissolution family law Brexit Jemma Pollock