As a consequence of the UK leaving the European Union and following the transition period ending on 31 December 2020, there is provision within the Withdrawal Agreement for how ongoing and future divorce and civil partnership proceedings will be dealt with in England and Wales.
There is also guidance on the recognition of divorce and civil partnerships in the new regime.
Transitional arrangements
The Withdrawal Agreement provides that divorce proceedings issued prior the end of the transition period will continue under the current law in respect of jurisdiction. The legal framework is set out under EU Council Regulation 2201/2003 (Brussels IIa). Of particular relevance is Article 3 of Brussels IIa which provides jurisdiction for all divorces (and civil partnerships) in each member state of the EU. The role of these rules is to avoid divorce proceedings going ahead in multiple member states at the same time. Brussels IIa ensures that the court who is notified second of potential divorce proceedings must stay (or freeze) the proceedings. In most cases the proceedings will go ahead in whichever country the divorce proceedings are issued in first, provided the requirements in Article 3 of Brussels IIa are satisfied.
The Withdrawal Agreement confirms that court in England and Wales will continue to recognise divorces granted in the EU member states if the divorce was granted prior to the end of the transition period or if the proceedings were started before the end of the transition period.
New cases in England and Wales
As a consequence of the UK leaving the EU there will be a change to how divorce law operates in England and Wales. Brussels IIa has been revoked; however the same rules found at Article 3 have been inserted into UK legislation with one addition being the sole domicile of one spouse. In summary, this means that to obtain a divorce in England and Wales one of the following jurisdictional criteria must be met:
- the spouses are habitually resident in England or Wales, or
- the spouses were last habitually resident in England or Wales, insofar as one of them still resides there, or
- the respondent is habitually resident in England or Wales, or
- in the event of a joint application, either of the spouses is habitually resident in England or Wales, or
- the applicant is habitually resident in England or Wales if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident in England or Wales if he or she resided there for at least six months immediately before the application was made and has his or her "domicile" here;
- the "domicile" of both spouses is in England or Wales, or
- the "domicile" of one spouse is in England or Wales.
You may need to take specialist legal advice to determine whether you meet the jurisdictional requirements of domicile or habitual residence to enable you to issue divorce or civil partnership dissolution proceedings in England and Wales.
The court in England and Wales has the power to stay divorce and civil partnership dissolutions when there are proceedings in another jurisdiction. The appropriateness of a jurisdiction to deal with a divorce or dissolution may take into account a variety of factors. It could be determined that either one of the jurisdictions is the most appropriate place for the divorce to proceed depending upon the facts of the case.
The court in England and Wales will recognise divorces granted in EU member states in the same way as is currently the case for non-EU countries – however this does not mean that the divorce will be automatically recognised as it was before and specialist advice should be taken.
Following Brexit, the legal position will chance for some couples that will divorce or have their civil partnership dissolved. International Family law is complex, and specialist legal advice should always be taken. If you need more information on the topic, please contact Amy Harris.
