If you have an international family law issue, we understand that you may be concerned about the impact of Brexit.
Our lawyers have put together a number of frequently asked questions about the changes that have taken effect since the end of the Brexit transition period on 31 December 2020.
Divorce:
Maintenance:
Children
Domestic violence:
Will Brexit Affect Existing Divorce Proceedings?
If you started divorce proceedings before 31 December 2020, then you can continue your divorce in the country you started it.
The EU and the UK have indicated that divorces started before 31 December 2020 will be recognised by each other. However, if you started your divorce before 31 December 2020 and conclude the proceedings after that date, it may still be advisable to apply for recognition sooner rather than later. Please contact us for advice if you're concerned that this issue may apply to you.
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Will Brexit Affect Divorce Proceedings That Haven’t Started Yet?
If you start divorce proceedings in 2021, then new rules will apply.
We’re expecting disputes in international divorces over which country the divorce should happen in because the “first in time” rule no longer applies as between the UK and EU countries. In these cases the English and Welsh courts would decide where the divorce should happen based on the most appropriate place. In practice this means the country you and your spouse have the closest connection with, rather than being able to choose the country that would be most advantageous to you. It does mean that if your spouse starts divorce proceedings in an EU country after 31 December 2020, you might still be able to bring divorce proceedings in this country, even though your spouse was first in time.
Other countries will apply their own law in deciding where the divorce should happen there so legal advice will need to be obtained in that country. It’s possible that proceedings could take place in two different countries at the same time.
As well as this issue, you may also need to apply for your divorce to be recognised in another EU state.
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Will I Need To Apply For Recognition Of Divorce?
UK divorces which were granted before 31 December 2020 will be recognised throughout all EU member states.
If your divorce proceedings started before 31 December 2020 then your divorce will be recognised by all EU states. However, to be as certain as you can be, it’s best to get a Certificate of Recognition as soon as possible (especially if you might want to live or work in a particular EU country in the future).
If your divorce proceedings start on or after 1 January 2021, then some EU states may not recognise your divorce.
Twelve out of the 27 member states signed the 1970 Hague Convention on the Recognition of Divorces and Legal Separations. These countries will still recognise your divorce even after the transition period. However, the remaining 15 countries, which have not signed the Hague Convention, may not recognise a divorce granted in the UK.
The 12 EU member states that signed the Convention are:
- Cyprus
- Czechia
- Denmark
- Estonia
- Finland
- Italy
- Luxembourg
- Netherlands
- Poland
- Portugal
- Slovakia
- Sweden.
If you need your divorce to be recognised in one of the 15 other EU member states (such as France, Germany, Spain or Ireland), it’s important to get legal advice.
Our international divorce lawyers have a network of relationships with partner law firms across Europe. Contact us for a discussion about your case and how we could help.
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If I’ve Signed A Prenuptial Agreement, Will My Choice Of Jurisdiction Still Be Valid?
When making a prenuptial or post nuptial agreement, you can choose the country in which your divorce would be handled (this is sometimes called "choice of court"). Until the end of the transition period the UK and EU respected those agreements if they met certain criteria.
The UK government has indicated that the UK courts will continue to honour this, provided your agreement was made before 31 December 2020. However it is less clear whether EU countries will do so where proceedings begin after 31 December 2020, even if the agreement was signed before then. For agreements signed after 31 December 2020, there’s no guarantee that the courts of EU member states will recognise a choice of court agreement in favour of a court in England and Wales and vice versa.
If you’re in this situation you should contact us for advice as soon as possible.
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If I Need To Enforce An Existing Financial Order In An EU State, What Should I Do?
There’s a procedure for enforcing financial orders which are intended to meet the needs of a party or a child (such as maintenance). The EU has indicated that UK orders which were made (or applied for) before 31 December 2020 will still be enforced.
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If My Divorce And Financial Order Is Going To Conclude After Brexit, What Should I Think About?
If you have connections to an EU country, it’s really important that you take steps to make sure your orders will be recognised and enforceable there after Brexit. You should get specialist legal advice in the country where the order would be enforced. If needed, you might have to get a “declaration of enforceability”.
Another consideration is where your divorce petition is based on your “sole domicile”. Domicile means the country you have permanent links with, and which you intend to live the rest of your life in, or eventually return to. So if you live in the United Arab Emirates for instance, but intend at some point in the future to return to the UK, then you may consider yourself domiciled in the UK.
Domicile is an extremely complicated legal concept. It’s important to seek specialist legal advice from an international family lawyer as the assertion of domicile you choose can have major consequences.
The EU rules which applied before Brexit meant that maintenance couldn’t be claimed where a divorce petition was based on sole domicile. This restriction has now fallen away as far as the English and Welsh courts are concerned, however there remain implications for enforcement of maintenance orders in the EU. There are therefore significant complexities to consider in terms of law and strategy so advice should be taken as soon as possible.
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What If We Need A Pension Sharing Order For An English Pension?
Unfortunately there is now a gap left by the revocation of EU law which means that if you have no connection to England, then you may be unable to implement a foreign order or agreement that seeks to share a pension held in the UK (even if that order was made outside the EU). If you or your spouse has an English pension but you live abroad, you should take specialist legal advice about your options early on in the process.
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How Will Brexit Affect My Child Contact (Access) Order?
If your child contact order has already been finalised, then there will be no change as a result of Brexit.
If you have an application currently going through, the position prior to 31 December 2020 will continue to apply. However, it may still be advisable to get legal advice sooner rather than later to firm up your position.
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What Will Happen If The Process To Get My Child Contact Order Won’t Start Until 2021?
Instead of the EU Regulations applying, the Hague Convention will apply. This has slightly different processes for recognising and enforcing orders. It will be important to take advice in the relevant EU country to make sure the order is enforceable and how the process will work.
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Will protective orders continue to be recognised in the EU?
No. While the UK has passed a law to recognise domestic violence orders from EU member states, the EU is yet to pass a similar law for orders made in the UK.
This is how things stand as of the end of the transition period on 1 January 2021 and it is unclear when or if that might change. If you’re worried about what this might mean for you, please contact us for advice on your options.
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