How Brexit will affect cross-border divorce

  • Describe some of the consequences of Brexit on divorce
  • Identify some challenges to being a multi-jurisdictional family
  • Define the implications of children in divorce
How Brexit will affect cross-border divorce

Now that the election has happened, and the EU Withdrawal Bill has been passed by MPs, it is perhaps a time of reflection for individuals in respect of relationships and families which the politics may now influence.

The consequence of Brexit on relationship breakdown and how matrimonial assets are shared cannot be understated.

As we all know, divorces can be costly for a number of different reasons.

The intention of this article is to walk you through some of the key parts of divorce that affect your personal finances and, more importantly, how these could change as a result of Brexit.

Brussels II Regulation

The key piece of legislation in the area of cross-border divorce and children matters is Brussels II(a) (Regulation 2201/2003).

In dealing with jurisdictional issues relating to divorce and children matters, the regulation uses habitual residence as a key factor.

When there are competing jurisdictions, the court where proceedings are first begun can seize jurisdiction in accordance with the regulation.

There are advantages with this regulation in providing certainty about jurisdictional issues, creating a system where enforcement of court orders is straightforward, promoting cooperation between Central Authorities (government agencies assisting in linking foreign lawyers and courts) in Member States and providing protective interim measures where there are disputes.

If Brussels II(a), were to fall away without adequate replacement, this could create a vacuum of legal uncertainty that could adversely affect children, families and how assets are treated in cross-border disputes.

Forum Shopping

“Forum Shopping” is the term used to describe the period of time where people consider the countries where they could commence legal proceedings and deciding which favours them.

In the context of divorce/dissolution, with people having connections to multiple countries there may be a range of options as to where proceedings can start.

If there are forum options, there may be a race for separated spouses/civil partners to consider these and then commence proceedings.

In an increasingly mobile society, international work/investments and international marriages, divorces/dissolutions have an ever increasing international aspect to them.

By way of example, if a person was born with French parents but in Spain, where they lived and worked up to the date of marriage before moving to England, and then spent long periods of time working in Germany, forum options arise.

When considering if people have choices where to commence divorce/dissolution proceedings, a number of factors need to be considered and the most important being:

  • The current country where the couple are ordinarily settled (habitual residence)
  • The last country where the couple were settled
  • Where a person is said to have a permanent home (i.e. being domiciled) which can be determined by:
    • Nationality at birth
    • The choice of a person to move to a new country and with the intention to permanently reside there
    • The dependency of a parent (applicable only to children under the age of 16).

Where there are forum options available to people about to embark on divorce/dissolution proceedings it is imperative that there is a swift assessment of the range of financial outcomes in the various potential countries so that proceedings can start in the one that is the most advantageous.

Courts in certain countries may be more favorable to a person’s case than others but this will vary from case to case.