On 9th October the House of Commons published a paper outlining the ways a no-deal Brexit could affect divorces in England and Wales. It confirms a no-deal Brexit could have serious implications for those divorcing or thinking about divorce.
Current position
Prior to a no-deal Brexit, Brussels IIa and the Maintenance Regulation ensure the judicial co-operation and recognition between EU member states and the UK.
This provides us with a clean and clear mechanism for securing jurisdiction to divorce. We have a straightforward way to enforce settlements involving assets elsewhere in the EU.
No-deal position
If the UK leaves the EU without a deal these rules will no longer operate. EU member states would not be obliged to enforce or recognise decisions of the English Family Courts.
Example scenarios
Consider the position if a divorce is correctly commenced in England and Wales only for the other spouse to start a competing set of divorce proceedings in France. Prior to a no-deal Brexit, the English proceedings would take precedence because they are the first in time. Post no-deal, there would be no clarity as to what should happen. There is no obligation on the French Courts to stand aside and allow the English proceedings to take precedence.
Similarly, if there is an English divorce and a settlement is ordered dealing with assets in a member state of the EU, the current rules provide an effective means of enforcement. If the spouse overseas refuses, for example, to comply with an order for sale of the French property, the Courts in France will follow the English settlement and order compliance with it. In the same scenario, were proceedings commenced after a no-deal Brexit, there is no obligation on the French Courts to join in the enforcement.
Act swiftly
Proceedings or applications that start before exit day will continue under the current rules.
This means that it could prove vital for those seeking to progress a divorce to start prior to 31st October if:
- there is more than one EU member state that could have jurisdiction to entertain a divorce, and
- there are assets outside England and Wales and in another EU member state.
As the deadline of October 31st draws ever closer, and the uncertainty around no-deal mounts, it is essential that you seek advice to clarify your position in relation to divorce proceedings.