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Divorce after Brexit

This guide forms part of our series of guidance on private family law after Brexit.

Brussels IIa Regulation will remain the relevant law for proceedings commenced on or before 31 December 2020.

Any final order, such as a decree absolute made in these proceedings will have automatic recognition and enforcement across the EU under Brussels IIa, even where made in 2021.

It will not apply to proceedings commenced after 31 December 2020, unless identical proceedings commenced elsewhere in the EU in or before 2020 (lis pendens then still applies).

Jurisdiction

From 1 January 2021, Brussels lla Regulation no longer applies to England and Wales.

Brussels lla rules as to jurisdiction are substantially replicated by new provisions inserted into section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.

For cases instituted on or after 1 January 2021, the above grounds for jurisdiction are slightly varied by regulation 7 and paragraph 7 of the Schedule to the Regulations:

  1. both parties to the marriage are habitually resident in England and Wales
  2. both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
  3. the respondent is habitually resident in England and Wales
  4. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
  5. the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made
  6. both parties to the marriage are domiciled in England and Wales; or
  7. either of the parties to the marriage is domiciled in England and Wales

Sole domicile has been added to the primary grounds.

Following the High Court decision in Marinos v Marinos [2007] EWHC 2047, it’s only necessary to be habitually resident on the day the proceedings were issued, provided there was ordinary residence for the prior six or 12 months, as applicable.

The requirement of only habitual residence on the day of issue, rather than for the three months preceding the proceedings under EU law, makes it possible to bring more proceedings in England.

Recognition

For proceedings instituted on or after 1 January 2021, whether a divorce is automatically recognised will depend on whether the corresponding EU country is a signatory to the 1970 Hague Divorce Recognition Convention.

Where they are not a signatory, recognition will depend entirely upon the national laws of that country. Legal advice should be taken from a practitioner in the law of that jurisdiction.

Forum

From 1 January 2021, the ’first in time’ rule is no longer determinative, although the courts in England and Wales can exercise a discretion to stay proceedings if there are proceedings taking place in another jurisdiction.

The deciding factor will be ‘closest connection’, and forum non conveniens will apply. This is the forum test which has been applied in England and Wales with non-EU countries.

The UK courts consider many factors to establish ‘closest connection’, such as:

  • nationality
  • residence
  • domicile
  • where assets are held
  • the alternative court being put forward
  • where children are attending school
  • language
  • cultural background

Expert legal advice should be sought from a practitioner in the law of the relevant member state.

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