There has been a lot of confusion regarding getting a divorce after Brexit. But, is there a need to rush to the divorce courts before 31st December 2020?
If you are currently considering a divorce, and you or your partner have connections to other EU countries; then we can strongly suggest you seek legal advice as soon as possible.
Where a couple who are citizens of one EU member state are living in another EU member state, the issue of which country they get divorced in is governed by EU law. This regulation means that whoever files first, in time, in one EU member state, uses that court with jurisdiction for their divorce. The law works because of reciprocity between all EU member states. This will no longer be the case following Brexit.
As from 1st January 2021, the country where the divorce is initiated will be the jurisdiction that will have priority to formalise the divorce and any financial matters, assuming jurisdiction criteria have been met too (lived in that country prior to the divorce for the required amount of time).
The courts of England and Wales are favourable to the party with lesser assets. Therefore, London has been considered the divorce capital of the world. This may cause a ‘race to the courts’ to get the divorce petition issued first in the country of choice. Acting quickly prior to the end of the year can give an advantage.
UK Divorces may not be recognised in the EU
At present, all UK divorces are automatically recognised in the EU. This means additional court proceedings are not required elsewhere in the EU to ensure a divorce is legally binding there. This can be important if you want to remarry or if you hold property in another EU country.
However, From 1 January 2021 a UK divorce will no longer be automatically recognised in all EU countries.
At present, some EU countries are signatories to a separate agreement with the UK. This is known as The Hague Divorce Recognition Convention. This convention will still apply even after Brexit and all signatory countries will still recognise your divorce. Those countries are: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden and United Kingdom.
Please note that a significant number of EU countries are not signatories. They are: Austria, Belgium, Bulgaria, Croatia, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Romania, Slovenia and Spain.
This means none of these states will automatically recognise a UK divorce. If you have connections to one of these countries, such as owning a holiday home in Portugal; legal advice will be required on how your divorce can be recognised in that country.
Divorce with no deal Brexit
If Brexit occurs with no deal on 31 December 2020; then UK law will have to decide if a UK court can issue your divorce. This will be based on the country to which you as a family have the closest connection. The closest connection test is presently used by the UK courts when deciding if they have jurisdiction in divorce proceedings where a close tie exists with another country from outside the EU. This is based on many things including nationality, domicile, cultural background and time spent in each jurasdiction.
It is important to address the issue of legal recognition of a divorce as there can be far-reaching implications. These can include benefits, inheritance, financial entitlements and even the ability to remarry outside the UK.
If you formally start your divorce proceedings in the UK prior to the 31 December 2020, you will still benefit from the existing EU laws. This means that your spouse cannot also take separate proceedings elsewhere in the EU. Your divorce will be automatically recognised across the whole of the EU.
This blog post is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since it was published.