Brexit and Divorce: the final sprint to the court door!

With the end of the Brexit transition period fast approaching, divorcing couples who wish to make use of EU laws will need to initiate proceedings before the end of the transition period in December 2020. Whilst there is some debate as to what ‘initiate’ means, to be safe you will need an issued divorce petition and financial remedy application, which has been stamped and dated by the court before 11pm on 31 December 2020.

With significant backlogs and delays in courts due to the pandemic in addition to the usual increase in applications with holiday disputes in December, our family lawyer Terrence Trainor outlines the key changes to UK divorce law and important considerations for separating couples who wish to make use of EU laws.

Issuing proceedings before 31 December 2020

Divorce proceedings need to be initiated and issued by 11pm on 31 December 2020 in order to benefit from EU law. Although this may not seem like much time, the key point is that the divorce and financial settlement does not need to be concluded by this date. Even if it is finalised in 2021, the existing mechanisms will still be in place to assist with the enforcement of an English order in other EU states.

It may also be important for the recognition of the divorce in other EU states that these proceedings are issued prior to the end of the transition period. If proceedings are issued once the transition period expires, it will depend on membership to a specific Hague convention; however, not all EU countries are members (such as France, Germany, Spain) and specialist family law advice will be needed, from the specific country in question.

Issuing a financial remedy application

An important part of the divorce process is the financial remedy application (Form A). In theory, you can advise or in legal terms ‘pray’ to the court for financial relief in the divorce petition, but it is not known at this stage whether this would be deemed sufficient to come under the term ‘initiate’. Therefore, if you wish to avoid any ambiguity, it would be far safer to issue your Form A before the transition period ends.

If you are a couple that is in the process of negotiations or mediation, it is important to consider at an early stage whether it would be prudent to still issue your Form A. It should be communicated to the other side that this is not intended to be a hostile step and it is simply allowing both parties to have the benefit of EU laws already in place.

First-in-time rule

The rule which provides that the divorce proceedings issued first in time will be deemed to be the country that deals with the divorce will no longer apply after 31 December 2020. Whilst the first-in-time rule can force parties into court proceedings prematurely or create mistrust and animosity, it is clear in terms of its application. If proceedings are issued after the transition period ends, the court will need to consider which country has the closer connection. These types of disputes can be very expensive to contest and it is therefore advisable to consider whether you wish to issue the divorce proceedings as soon as possible.

With significant changes to UK divorce law fast approaching, here are five practical tips for separating couples:

1. It is very important to take advice and assess the situation carefully with specialist family law advice. If you leave it to December, you may just be too late and this could result in prejudice to your case or the requirement to seek family law advice across a number of jurisdictions, which can be costly.
2. You should locate your marriage certificate as it will be needed in order to issue divorce proceedings in England. It is a relatively simple process to obtain a certified copy of a marriage certificate for marriages performed in England, but many jurisdictions have a far more complex system and there have been several occasions where a client has needed to travel in person to the specific country in order to obtain it. With overseas flights not so readily available and quarantine restrictions in place, it could be much harder to source this document at the moment.If the marriage certificate cannot be found and is not able to be obtained quickly, speak with your family lawyer about making an application for the divorce to be issued without the marriage certificate, which can then follow. The court will need time to consider such an application, so time is again of the essence.
3. The normal process to issue a Form A requires the parties to have attended a mediation information session (called a MIAM). In cases of genuine urgency or a jurisdictional race, you can ask the court to issue the Form A without this requirement being completed. It is at the sole discretion of the court and, again, specialist advice will be needed.
4. If you are already separated and your spouse has made threats to either apply for divorce in a foreign jurisdiction or suggested you will get ‘nothing’, they may be considering issuing divorce proceedings in another EU state that is favourable to them. It is very important with the end of the transition period approaching that spouses are alive to the fact that the first-in-time rule is very strict, whereas the close-connection test is far more discretionary. However, come January 2021, it will be less important as the first-in-time rule will no longer apply.
5. If you are married to an EU national who lives abroad or if you have assets in other EU countries, the recognition and enforcement of English court orders is likely to be easier before our relationship with the EU changes in January 2021. Therefore, it may very well be safer in the long run if proceedings are issued before the end of the transitionary period.

As the Brexit negotiations continue, there is likely to be greater clarity on these legislative changes in the coming months. Nevertheless, spouses should carefully consider their position now and take action where required, rather than leaving it to December, or even once it is too late in January 2021.

If you are considering or ready to start divorce proceedings, please do not hesitate to contact Terrence using the below details.