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Brexit and family law - do I need to act now?

There remains great uncertainty around Brexit and its potential consequences. Family law is not immune to this, and there has been a shocking lack of information conveyed to the public about the impact of a no-deal Brexit. There are certain circumstances in which it would be very wise to take specialist advice, and possibly protective action, immediately. We discuss two family scenarios below, and the effect Brexit is likely to have on them.

Deciding where to get divorced

For couples with international backgrounds or, more particularly, for EU nationals living in the UK, there may currently be more than one country in which they have the choice to get divorced. This is potentially a very important choice: the country in which a divorce is started will usually be where the division of assets is determined. English courts have reputation for being more generous to the financially weaker party than most of our European neighbours, so many people have a direct vested interest in securing the jurisdiction of the divorce in a “sympathetic” country. The current EU rules provide for cases to be heard in the court where proceedings are begun first, which has led to races between separating spouses to initiate proceedings.

For example, consider an English wife and a German husband who have been living in London for three years, but on separation the husband returns to Germany. Divorce proceedings could potentially be brought in England or Germany, but if the husband is the higher earner, he may favour divorce proceedings to take place in Germany rather than England, therefore rushing to issue there, before the wife issues in England. If he does, there is nothing that the wife can do about it.

This “first in time” rule may seem like rough justice, but at least it has the virtue of certainty. However, it currently exists because of EU treaties that will fall way on 29 March (or the date on which we leave the EU following any transition period). After Brexit, if there is a dispute about where a divorce should happen, the English Court will instead consider which country is more appropriate, taking into account a wealth of factors such as: where the parties lived, spent their time, owned property, did business, their nationalities etc.

At the same time, the Courts in another European country may be doing the same, but under a different set of rules. The outcomes are not clear: we do not know whether another country will accede to the English Court if it was first in time, or of it is decided that the family have stronger ties to this country. What we can say for certain is that the couple will be in for a long and expensive process.

Although there are no guarantees that proceedings commenced pre Brexit in the English court will be respected post Brexit under the “first in time” rule, there is arguably a better chance than if the proceedings are started after Brexit. So those individuals for whom it would be beneficial to secure the jurisdiction of a particular court may be advised to issue quickly before Brexit.

Arrangements for children involving one or more EU countries

When separated parents are living in different countries, they usually have an order from the court specifying the time that their children will spend time with each of them. For example, a father living and working in England might have agreed with the mother in the English court that she can live in her native Italy with the children, provided that the children spend a substantial portion of the school holidays with him in England and he can visit them in Italy on certain weekends. This arrangement might have worked well for months or years, until a falling out: the mother decides the children will no longer travel to England and she will not permit father to see the children in Italy.

What can the father do? The English Court cannot make another order because the children are living in Italy, so it falls to the Italian court.

Pre-Brexit the father could obtain a certificate from the English court under European legislation, and the Italian court would “directly enforce” the original English order; there would not be an inquiry into whether the decision in England was an accurate reflection of Italian law. Post-Brexit the certificate will not be available, and English orders will not be directly enforceable any more. Again, if a certificate is obtained pre-Brexit, it remains unclear whether a foreign Court will still respect it post-Brexit, but having a certificate may offer a better chance of enforcement. There are, however, many families operating under such arrangements who may be unaware that the fundamental legal basis of their arrangements to see their children is about to change – and not for the better.

There are some other dry and technical issues around international divorce and finances which will change on 29 March if we leave the EU without a deal – anyone with concerns about assets located abroad or other international connections might consider consulting a family lawyer sooner rather than later.

These issues are particularly acute given that there is clearly a polarisation of political and social views taking place in many areas of Europe causing a reaction against the international in favour of the domestic. We can have no guarantee of the attitude that will be taken by the Courts in many European countries towards UK nationals caught up in family law issues – particularly if the UK has “crashed out” in acrimonious circumstances. Those who may be caught up in such matters would be well advised to take specialist legal advice as soon as possible.

Published: 21 February 2019

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February 2019

Key Contact

Toby Hales