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.
The end of the transition period will also change the rules around financial orders made following divorce. This is particularly pronounced where one party is to pay maintenance to another where one party lives in the UK and the other in an EU Member State.
Council Regulation (EC) No. 4/2009, known as the “Maintenance Regulation”, ensures that maintenance orders are recognised between EU Member States.
Following the end of the transition period, the Maintenance Regulation will no longer apply and instead the 2007 Hague Maintenance Convention will determine recognition and enforceability.
There is the alternative possibility that the UK could join Norway, Switzerland and Iceland as signatories to the Lugano Convention but, at time of writing, the EU has not yet agreed to this.
This would slightly clarify matters in terms of direct recognition and enforceability but would still represent a change in procedure, while there also remains a lack of clarity as to whether the Hague or Lugano Convention would take precedence in that event.
Whatever the outcome, the position will certainly be more complex and is likely to involve a detailed consideration of the legal position in both jurisdictions with all its attendant costs.
Article 67 of the Withdrawal Agreement specifies that Brussels IIa will apply to “legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings”.
