Whereas at present that party – usually the wife – can be sure of seizing jurisdiction by instituting proceedings in England before their spouse can elsewhere in the EU, that will no longer be the case following the end of transition.
This may serve to reduce forum shopping and divorce tourism. At present, English jurisdiction can be seized where the:
- petitioner and respondent are both habitually resident in England and Wales;
- petitioner and respondent were last habitually resident in England and Wales and one of them continues to reside there;
- respondent is habitually resident in England and Wales;
- petitioner is habitually resident in England and Wales and has resided there for at least one year before the divorce petition is presented;
- petitioner is domiciled in England and Wales and has been habitually resident in England and Wales for at least the six months before the divorce petition is present; and
- the petitioner and respondent are both domiciled in England and Wales.
While these rules are set out in Brussels IIa, they will largely continue to apply in England and Wales as a result of domestic law following the transition period.
To illustrate the impact of this change, consider a situation where a French wife and Russian husband have properties in Paris, Moscow, Monaco and London.
They divide their time between the properties on an ad hoc basis, sometimes together and sometimes apart, while the children attend an international school in Switzerland.
The wife decides that she wishes to divorce and is advised that she is likely to receive the best settlement by instituting proceedings in London.
Prior to the end of the transition period, starting proceedings in London will be determinative. Provided that she can show that one of the jurisdictional criteria apply, if she issues before the husband can elsewhere, her proceedings will take place in England.
However, if she institutes proceedings after the end of the transition period, the husband may issue proceedings in another jurisdiction that is more favourable to him and apply to the English court for the proceedings in this jurisdiction to be stayed on the basis that this not the most appropriate forum.
The English court will then embark on an analysis of whether this jurisdiction or another is the most appropriate.
With Brussels IIa no longer applying, there are likely to be a number of cases where jurisdiction is contested, creating uncertainty and increasing costs for divorcing couples given the complex and fact-specific nature of such disputes.
As for the recognition of judgments and decrees made in Member States, the position will depend on the country involved.
For the 13 out of 27 Member States – including Italy, Poland and the Netherlands – which, like the UK, have signed up to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, judgments made in one country will automatically be recognised in another.
Importantly, the Convention does not apply at all to same-sex marriages, civil partnerships or nullity cases, meaning there is no direct recognition of judgments in those cases.
For the remaining Member States – including those with close ties with England and Wales such as Ireland, France and Germany – there is no provision for automatic recognition. This results in a divorce that is recognised in an EU state not being recognised in England and Wales.