Why England continues to be a top divorce jurisdiction

2020 will go down in the annals of history for reasons only too clear to us all. However, many will not appreciate that the bookends of that year changed international family law dramatically: January 2020 when the UK left the EU and 11pm on 31 December 2020, the end of the transition period. This briefing highlights the key points those advising international families must now have at the forefront of their minds.

More people can now divorce in England and Wales

Divorce proceedings can only be issued in this country where there is jurisdiction to do so. As a result of Brexit, jurisdiction has widened considerably. One party being domiciled in England will now be enough to file a petition here, whatever their spouse’s nationality or domicile, thus opening the court room doors to couples not previously eligible (though caveat emptor – there are traps for the unwary along that legal path).

It is therefore important to be aware that if one party to a marriage is domiciled in England and Wales, they will be able to issue a divorce petition here regardless of where they are living or the nationality of their spouse.

There will be more litigation about where divorce (and related financial) proceedings should take place

It is not uncommon for there to be jurisdiction to divorce in more than one country. Previously an EU Regulation included an important “first in time” rule so that if there were two sets of divorce proceedings in different EU countries, the one that was issued first would go ahead, and the second in time would have to stand aside.

Following our exit from the EU, this rule no longer applies. If divorce proceedings are started in two different countries, there is now no rule to determine which country should have priority.

This means that each country will decide for itself whether to proceed with the divorce. In England, the court will consider whether it is the most “convenient” forum for the dispute, which will depend on factors such as where the parties are living and where the assets are located. The other European country will apply its own national law to determine whether it thinks it should have jurisdiction. It is therefore perfectly plausible that both countries could consider that the proceedings should take place in their jurisdiction and therefore one could end up with two sets of proceedings running concurrently in different countries.

As a result of this change, we are anticipating that litigation over where proceedings should take place will increase dramatically. For some, there will be an advantage in the English court deciding which country it believes to be the most convenient forum, rather than being subject to an arbitrary first in time rule. However, it will also result in more protracted and expensive litigation. Greater uncertainty makes it harder for lawyers to advise and harder for families to resolve their disputes.

Not all EU countries will recognise an English decree absolute

EU Member States recognise divorces obtained in other EU member States. However, now that we are no longer an EU member State, our divorces will not automatically be recognised. There is a Hague Convention which seeks to achieve the same thing, which will continue to apply, but only a few EU Member States are signatories and it doesn’t apply to civil partnerships. Those countries who are not signatories will apply their own national law to decide whether or not to recognise an English divorce.

This can have major consequences. Local advice in the second country will become crucial, adding to the costs, delay and stress for all parties.

It will become more difficult and more expensive to enforce orders across Europe

If proceedings were started before the end of the transition period, then the “old” EU rules can be relied upon to enforce any resulting order. These ensure that orders obtained in an EU Member State are recognised and can be enforced in other Member States.

However, for those who are embarking on proceedings now, enforcement may prove a rather trickier path than has previously been the case. Fortunately there is a Hague Convention that will assist, but it is not such a straightforward process, there are more opportunities for the recalcitrant spouse to evade payment and it is likely to be more difficult (and more expensive) to enforce orders than before.

The road ahead for many international wealthy families dealing with relationship breakdown is likely to be far more convoluted than ever before. Where a marriage is on the rocks clients will be well advised to take early advice, not just from a specialist English family lawyer but also, through their lawyer, local advice in other relevant jurisdictions. Where there is more than one option, it will be crucial to consider where to file proceedings carefully and on a holistic basis. Finances will be one obvious factor for many couples, but timing can also be key, plus the practicality of attending hearings, the impact on the wider family, and where the divorce needs to be recognised or any financial court order enforced. It is going to be a challenging terrain to navigate.

If you require further information about anything covered in this briefing, please contact Claire Gordon, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2021