BREXIT: How it has changed UK-EU cross-border divorces

Lund Bennett Family Law - Cheshire and Manchester

Divorcing couples with cross-border connections could see significant changes to their divorce proceedings following the UK’s exit from The European Union at the beginning of the year.

Prior to Brexit, for couples with connections to both the UK and another EU country (or countries), obtaining a divorce from the English courts might have been preceded by a jurisdiction race – with each party rushing to commence divorce proceedings in their preferred country. For example, a wife might want to commence proceedings in England whereas her husband might want to proceed in Germany. Whichever country’s court was first to have proceedings instigated would have jurisdiction to deal with the divorce and subsequent financial proceedings.

Typically, english courts’ have a reputation for being more generous than other countries’ courts to the financially weaker party to a marriage. English judges have a wide discretion in terms of the financial orders that they can make on divorce, as well as the power to make long-term (even life-long) spousal maintenance orders when fairness dictates.

A new approach to deciding on jurisdiction

As of 1st January 2021, EU laws regarding family law have ceased to apply to the UK, and the ‘first in time’ rule that prompted jurisdiction races is no longer relevant. The deciding factor is now ‘closest connection’, with the relevant courts considering such factors as:

  • The couple’s nationality/ nationalities and residence.
  • The location(s) of the couple’s main home and of their other assets;
  • Where the couple work;
  • Where the couple’s children attend school.

What do these changes mean?

If one party issues proceedings in, say, London and the other in, say, Berlin, regardless of who was first to issue, there will need to be legal proceedings to decide which court is most appropriate.

This may well lead to time-consuming cross-border disputes over which jurisdiction is the most appropriate, and higher legal costs for some divorcing couples.

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