There’s a lot of attention being paid to how businesses will manage if there’s a no deal Brexit. But what about the people within those businesses? How will they cope if no deal has a major impact on their personal lives – particularly in a life-changing area such as divorce?
If the UK leaves the EU on 29 March 2019 without a withdrawal agreement, EU law immediately ceases to apply. What happens next, if you’re currently divorcing another EU national, there’s an existing court order concerning your finances or children, or you’re contemplating a divorce?
Will the outcome still be recognised?
Since November 2003, EU regulations have decided issues such as which country should have jurisdiction of a divorce between EU nationals, parental responsibility, and recognising and enforcing court orders made in family proceedings. When a civil divorce has been granted and court orders made in one EU member state, they’ve been automatically recognised and respected in the other.
That may not be the case once the UK leaves the EU.
The end of ‘first past the post’?
Another aspect now in doubt is which jurisdiction will cover the divorce. Under EU rules, it’s effectively been ‘first past the post’. The EU member state where divorce proceedings are started is where the divorce happens, even if there’s a more significant connection with another EU country.
Critics say this has led to some divorce proceedings being issued prematurely, to secure an advantage such as the most favourable financial jurisdiction, but at least the law has been clear – which it might not be after Brexit.
What about maintenance orders?
Existing EU regulations automatically recognise and enforce certain types of need-based financial maintenance orders. This hasn’t always been popular in England and Wales because the extent of what these orders could cover was restrictive compared with our domestic law.
If we leave without a deal, a financially weaker spouse might be better off if they can delay proceedings until the EU maintenance regulation no longer applies. Conversely, if you want to enforce an existing maintenance order, guidance from the EU suggests that you must register it before Brexit happens.
With just two weeks to go, UK regulations for divorce arrangements when we exit the EU are still in draft form. Whilst they provide some guidance on how the courts in England and Wales are likely to deal with these matters after a “no deal” Brexit, the big question is how other EU member states will view orders made in our jurisdiction. The answer isn’t clear and could vary from one country to the next.
Family lawyers used to dealing with international cases outside the EU are already familiar with wider international treaties and agreements, such as the Hague Conventions which govern divorce recognition, child protection and enforcing financial orders between signatory states.
Most but not all EU states are also signatories to these Hague Conventions, which will now come into play instead of the Brussels regulations. The rules and considerations are complex and case specific, so if you’re affected, it’s vital you have advice from an experienced international family law practitioner, both in the UK and the other EU member state involved.