How Brexit will affect cross-border divorce

• 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.

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

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.