16 November, 2020
Although this area of law is still uncertain as the UK government is yet to either secure a deal for the UK or to leave the EU without a deal, it is thought that Brexit may impact divorce where one spouse is living in the EU and one spouse is living in the UK.
Currently there are around 3.8 million EU citizens living in the UK and around 1.3 million UK citizens living in the EU, as the law currently stands, if both spouses live in an EU country, whoever issues divorce proceedings first from the country they are residing in, that country "seizes" that court with jurisdiction for their divorce. This only works within EU countries and based on the fact all the EU countries respect this rule. This is governed by the EU Regulation Brussels 11a Recast Regulations whereby the majority of EU members abide by this rule for divorce proceedings. However, if there is a no-deal Brexit, there may be an issue with duplicated divorce proceedings as the above procedure will no longer be followed.
If the UK leaves the EU without a deal then the UK may have issues if the other spouse issues divorce proceedings from an EU country as each country has differences within their divorce law. The UK is thought to be a favorable place to issue divorce proceedings due to the Court's reputation of being generous to the financially weaker party, thus it is often a race to issue divorce proceedings if there is a cross-border issue.
A no-deal Brexit would mean that the current rule in place, Brussels 11a Recast Regulations, would no longer apply as it will be revoked and thus EU countries may no longer recognise court orders in the UK.
In addition, different EU countries may have different views on UK court orders. This will cause uncertainty and only over time will case law show us how each country views UK court orders. Consequently, a no-deal Brexit could lead to a very complex and costly court case especially if Ancillary Relief Proceedings become involved.
The government suggests that ongoing divorce cases will continue under the existing rules and thus to ensure the potential issue above does not affect your divorce, we would encourage you to issue divorce proceedings before the proposed exit day if your case is a cross-border divorce. The need for professional and effective legal advice is more important now than ever.