Regulation  

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
CPD
Approx.30min

If there are forum options within the European Union (EU) and a person starts proceedings in a particular member state that suits them, the courts there will retain exclusive jurisdiction to determine matters.

Once proceedings have started in an EU state the recipient of divorce papers may have no choice but to accept its jurisdiction.

In a post-Brexit world without reciprocal or transitional arrangements there is a possibility that there could be competing divorce proceedings being conducted at the same time.

If there is a risk of competing jurisdictions, financial advisers will have to consider where assets are held and how they will be treated by different courts.  

Quickly and carefully shopping for the forums for divorce is a critical step in commencing divorce/dissolution proceedings if a person is to secure the most favorable jurisdiction and also avoid costly legal arguments in respect of forums of convenience.

In considering the best forum for divorce, litigants should also take advice on where assets are and also their potential relocation, too.

Post-Brexit the effectiveness of a transitional arrangement could be undermined by the fact that the UK would likely no longer have access to the judicial structures of the EU, and would not benefit from the cooperative nature of organisations in cross-border issues; there are therefore inherent problems in retaining EU laws in the UK legal system while no longer having access to the structure within which these provisions were designed to work.

Those already in divorce proceedings seeking to recover foreign assets could find themselves in difficulty without reciprocal European arrangements being in place.

Litigants have to consider the quality and value of assets they seek to retain/recover and what they may be worth post-Brexit.

What may be classed as a ‘copper-bottom asset’ now could be considered toxic in a post-Brexit no deal scenario where enforcement issues may arise.

The ‘weaponization’ of children in divorces

As all parents well know, as much as children can bring much joy and happiness to families, they also come with financial costs such as nursery fees, school fees, day-to-day housing costs, university, weddings and help to buy first homes.

In the good times within a family unit the financial burden that children present are happily accepted by parents who work together to meet needs.

Sadly though, when there is a civil partnership or marriage breakdown children can often be used as pawns by their parents who want to assume responsibility for their future costs in a bid to strengthen their negotiating hand when attempting to resolve financial arrangements.