So, 31 January has come and gone, and the EU Withdrawal Bill has now passed into law. If you thought this would put an end to all talks of messy divorce, think again.
Yes, the UK's decision to end our relationship with Europe and to instead embark on the separation process of Brexit has many implications for family law, not least – although most ironically – within the pertinent area of cross-border divorce.
The end of Brussels II
Whereas once cross-border divorce solicitors in the UK could rely on Brussels II Regulation for settling jurisdictional issues relating to divorce and child law, at the moment the future is looking rather more uncertain and, potentially, more complex and costly.
Brussels II, the European Union legislation which assists in conflict of law issues between litigants in different member states, provided the necessary guidance on the jurisdiction an EU divorce would be heard in – this being the one in which proceedings were first issued. Central authorities across EU member states also worked to ensure communication and cooperation, so that cross-border cases could be resolved without too much unnecessary cost or contention.
Now, divorce solicitors and their clients must get to grips with cross-border divorce in the post-Brexit environment. How the lack of Brussels II will play out is no small question; there are around 15.9 million foreign-born individuals in the UK, including around 3.8 million EU citizens, while approximately 1.4 million UK citizens live in the EU. The potential for cross-border marriage and civil partnerships amongst EU citizens was made so much easier as a result of free-access to travel, jobs and residency, but now, Brexit is likely to change all that.
This situation was broadly overlooked during the wider, media-led Brexit debate, but it is now inevitable that complicated international divorce will be a significant consequence of the UK's split from the European Union.
A picture of uncertainty
Those parties who are already engaged in an international divorce will, understandably, have questions and concerns about how things are likely to turn out. First and foremost, cases should continue to be heard in the jurisdictions in which they began, with the law of the time continuing to apply, but there can be no guarantees.
For those about to divorce the question of who issues proceedings first and, therefore, which jurisdiction is going to hear the proceedings is, from now on, going to be a considerably bigger issue as there will be no Brussels II ruling to settle the matter easily, especially if petitions are made on the same day in different countries.
For some divorcing parties who have received a financial settlement ruling, the situation will bring significant uncertainty, especially if the divorce settlement involves the recovery of high-value foreign assets located in the EU. Previously, there were reciprocal European arrangements to assist enforcement, but these, of course, can no longer be relied upon.
For example, litigants will need to consider the relevance of individual assets: what were once considered cast-iron investments or assets might, post-Brexit, be considered as toxic or worthless should enforcement be an issue in the future.
Similar uncertainties surround Court Orders for spousal or child maintenance, child contact and other crucial related matters such as child abduction. The UK is removing itself from the jurisdiction of the European Court of Justice (ECJ) and although it will replicate much of EU law in UK law, this is taking time to achieve and it is impossible to predict accurately just how much disruption will ensue. For example, although the UK is set to uphold EU Court Orders, EU members are under no obligation to reciprocate.
Against this background, it becomes even more critical for divorcing parties to seek the advice of experienced divorce solicitors who have cross-jurisdictional experience. The significance of questions regarding where to initiate proceedings and the potential impact of Brexit on any cross-border assets that might be divided as part of a financial settlement cannot be underestimated.
Pre-nups post-Brexit
Brexit has also served to highlight the importance of well-drafted, pre-nuptial agreements. Although not yet binding in UK law, when a pre-nup has been agreed using independent legal advice for both parties and in plenty of time before the marriage or civil partnership, it may at least serve to clarify both parties' intentions and to indicate a potential path to resolution.
What matters now?
Over recent decades the UK has emerged as the world’s divorce capital. This is attributable largely to the sheer number of so-called legal tourists who converge on London because of the justice system's reputation for impartiality and fairness. The English and Welsh courts have a reputation for fully considering the needs of 'weaker' parties, something which has made it particularly attractive to the ex-wives of high-net-worth individuals and, as a result, many of the world's top divorce solicitors can be found in London.
In a sense, one important thing has remained the same post-Brexit: if you are looking to undertake a cross-border divorce you should initiate proceedings as soon as possible, most likely in the UK, where parties can reasonably expect to achieve a fair divorce financial settlement. And you should seek out an experienced cross-border solicitor with knowledge and expertise in this complex area.
