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End of transition period guidance: divorce

This guide forms part of our series of end of transition period guidance on private family law.

Brussels II will remain the relevant law for proceedings commenced on or before the end of the transition period (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 II, 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

During transition

Issues arising as to divorce jurisdiction between member states are currently provided for in Brussels II, which is national law (the Jurisdiction and Judgements (Family) (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/519) (the Regulations), Sch, para 7(2), amending section 5(2) of the Domicile and Matrimonial Proceedings Act 1973).

The jurisdiction rules set out in article 3 of the Brussels IIa Regulation state that jurisdiction can be established with the courts of the member state:

  • in whose territory:
    • the spouses are habitually resident
    • the spouses were last habitually resident, insofar as one of them still resides there
    • the respondent is habitually resident
    • in the event of a joint application, either of the spouses is habitually resident
    • the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
    • the applicant is habitually resident if they resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of the United Kingdom and Ireland, has their ‘domicile’ there
  • of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses

Sole domicile is only available if the above grounds are unavailable in any EU member state.

After the end of transition

Brussels lla Regulation will no longer apply to England and Wales.

Brussels lla rules as to jurisdiction will be 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 will now be added to the primary grounds.

There have been developments in the law following the High Court decision in Marinos v Marinos [2007] EWHC 2047 so that 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

During transition

Brussels II provides for automatic recognition of civil divorces between member states and the UK.

After the end of transition

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

During transition

In circumstances where two parties commence divorce proceedings separately in different member states, article 19 of Brussels lla (applying the lis pendens rule) requires that the court in which proceedings were filed second in time must stay the proceedings (the ‘first in time’ rule).

This allows the proceedings first filed to proceed in the court of the member state where they were filed and prevents parallel proceedings in other member states’ courts.

The case will also proceed in the court first seized if that court has jurisdiction under the Brussels IIa Regulation.

‘Closest connection’ is irrelevant if any EU member state has jurisdiction. The relevant question is in which court were the proceedings filed first.

After the end of transition

The ’first in time’ rule will no longer be determinative, although the courts in England and Wales will be able to 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 will 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.