checkers pieces with UK and EU flags

The Ministry of Justice has at long last published guidance on the handling of cases if there’s no Brexit deal.

Andrew Barton, an expert in international family law, summarises the key implications for divorce below.

The UK’s membership of the EU means we are currently signatories to Brussels IIa and the EU Maintenance Regulations. These regulations underpin the UK’s family law interactions with other EU member states.

Leaving the EU with no deal will mean that these rules need to be repealed.

Fortunately, in lots of case the UK Government has indicated that it will legislate replacement rules so that the vacuum left through our repealing the EU rules is at least partially filled.

We are also a contracting state of the Hague Conventions, which cover many of the same areas. So in some cases, where replacement rules aren’t being enacted there are already rules in place as a safety net so we are not left in freefall.

There are however some cases where corresponding rules are not currently set to be enacted and about which there are no equivalent Hague rules. Where this is the case, the rules relating to our interactions with EU member states will change as of 29 March 2019. The two most significant of these are as follows:

Sole domicile

  1. At present, in addition to the provisions of Article 3 of Brussels IIa, there is a jurisdictional basis for divorce based on the sole domicile of either party. This is currently only available if no other EU court has jurisdiction.


Although Article 3 is being replicated in domestic law, a no deal Brexit will mean the restriction of the sole domicile rule to cases where no other EU court has jurisdiction will no longer apply.


This means it will be possible to petition in England and Wales based on the sole domicile of either party, even if another EU court has jurisdiction.


  1. The EU ‘lis pendens’ rule – known as the first past the post rule – will no longer apply in the case of a No deal Brexit. This means that, where there are competing proceedings in another EU member state, divorce jurisdiction will no longer be determined by which Court processed the petition first. Instead, jurisdiction will be determined by which court is most appropriate to hear the case, as it is for cases currently outside the scope of Brussels IIa.

Andrew Barton is a divorce specialist and family law partner at Stephens Scown. He was recently included in the Citywealth Leader’s List, a list of the best advisors in private wealth in the world. To contact Andrew about pre-nup loyalty clauses or any other family law matter, please call 01392 210700, email