How Could Brexit affect Divorce in the UK?
29 January 2019
As the terms of the UK's 'divorce' from the European Union are being negotiated, we look at how Brexit could impact on the divorce process for separating couples. If a UK national is married to someone who was born in the European Union, then the implications of Brexit on their divorce could be significant.
There's a huge amount of uncertainty currently around what the UK's Brexit deal will look like when we leave the EU in March (if indeed a deal is agreed). This, in turn, means that there is a lot of uncertainty around how certain legal processes will work after this date, including divorce for cross-border couples.
The latest population figures from the Office of National Statistics reveal that almost a quarter (23%) of the UK's resident population either have a non-British nationality or were born abroad. This amounts to a total of 15.2 million people who could potentially be affected by divorce law changes after Brexit, along with British nationals who are married to them.
How Does Cross-Border Divorce Work Currently?
In terms of Family Law, the EU provides a common set of rules around the recognition and enforcement of Court Orders across all EU jurisdictions, but beyond this the UK is able to decide its own terms for Family Law. The UK's legal processes vary across England and Wales, Scotland and Northern Ireland. This article will refer to the law of England and Wales.
The biggest consideration in an international divorce case is determining which country the divorce proceedings should be carried out in. If a couple has certain links to two or more EU countries, then they may be able to choose which country to begin divorce proceedings in. This will depend on where you and your spouse are 'domiciled' and where you are 'habitually resident.' For more information on what these terms mean, see How Does Divorce Work if One Person Doesn't Live in the UK?
If divorce proceedings are started in two different countries at the same time, then currently the EU can step in and decide which country should take precedence. Without this decision being made, there could be two divorce proceedings running simultaneously, which could result in two conflicting outcomes.
If you do have options as to which country you begin the divorce proceedings in, it's worth looking into the divorce laws of each country and establishing which option is best for you. This is something that our International Divorce Solicitors can provide you with advice and guidance on.
What Will Happen after Brexit?
As no Brexit deal has been agreed yet, it's not entirely clear how cross-border divorce will work after the UK leaves the EU. However, as part of the UK Government's Brexit negotiations with the EU, it will be looking to set out clear rules around which country's jurisdiction should apply in cross-border Family Law and Children Matters. It will also be seeking assurance that legal decisions and Court Orders made in the UK will continue to be upheld across the EU.
Currently under the EU, Court Orders for child or spousal maintenance, child custody or child contact will be upheld across all EU member states. Depending on the terms of the UK's departure from the EU, this arrangement could be at risk. Similarly, there is a currently an arrangement between all EU member states to share information in the interest of child protection which could also be in jeopardy.
The UK Government has confirmed that the UK will be removed from the jurisdiction of the European Court of Justice (ECJ) after Brexit. However, it is seeking to replicate EU law in UK law. While this should help to limit disruption during the Brexit transition period, it does present a potential issue whereby the UK will uphold Court Orders made in EU jurisdictions, but EU member states may not be obliged to do the same in return.
What's important to note at this point is that these issues are being worked through as part of Brexit negotiations. All being well, when the UK exits the EU there will be robust processes in place to ensure a seamless transition, and the cross-border divorce process will continue to operate in much the same way as it does now. However, with no Brexit deal yet agreed, thousands of families that are affected by cross-border Family Law issues could potentially be faced with a degree of uncertainty once the UK has left the EU.