With the news being dominated by Covid-19 for the last 9 months, we have had a bit of a break from hearing about ‘Brexit’. But, like it or not, Brexit will happen and the laws that we apply to family law issues come January 2021, will be very different to the ones we apply now.
The UK left the European Union on 31 January 2020. The period between then and 31 December 2020, is called the ‘Transition Period’ and, during that time, we have continued to apply EU laws in the usual way. However, everything changes in January 2021.
Currently, divorce jurisdiction is found in an EU regulation which is identical in law across Europe. This EU regulation is Article 3 of Brussels II revised and, after 1 January 2021, will no longer apply in the UK. The UK has adopted these jurisdictional grounds into UK national law, although with certain amendments.
However, whilst the jurisdiction grounds are similar, we in the UK will no longer be able to rely on the ‘first past the post’ rule. This rule allowed whoever issued their divorce petition first to establish jurisdiction in their court of choice. So, where an international family with connections to both the UK and, say, France or Germany, and could choose where to issue their petition, the first party to issue would ‘win’ and the divorce and any subsequent financial proceedings would then take place in that country. This rule has particular significance for those financially weaker parties who wanted to secure the UK as the divorce jurisdiction, on account of our jurisdiction being considered more generous.
After January 2021, this rule no longer applies and, instead, we will have to consider which country is the more convenient forum to hear the case (forum non conveniens). To establish jurisdiction in a particular country, you will have to prove a closer connection to it.
Whilst there will no longer be the race to court that we are familiar with, there is a likelihood that, where parties are contesting jurisdiction, costs will increase at the outset whilst arguing this point.
In the language of the EU, ‘maintenance’ refers to any needs-based money awards. When we were in the EU and during the Transition Period, we rely on another EU regulation, called the EU Maintenance Regulation to enable us to enforce in Europe maintenance awards made in the UK, and vice versa.
After January 2021, the Maintenance Regulation will no longer apply to us. How will we then enforce UK maintenance awards in Europe? Rather than being able to rely on the streamlined process applicable across Europe, enforcement will depend on the nature of the maintenance proceedings in question. Things will change again if the UK joins the Lugano Convention and so it will be important to consider the route to enforcement of an order in Europe at the time the UK order is made.
It is clear, therefore, that matters will become more complex come January 2021. However, it has recently been announced that if proceedings are instituted prior to the end of the transition period at 11pm on 31 December 2020, then those proceedings will follow EU laws, even years into the future.
The important point to note is the timing. Whilst you do not need to have obtained a final order before 31 December 2020, you do need to have instituted proceedings. This means lodging and have issued any application or petition. For finances, even if agreement has been reached, a Form A ((the court form that starts the process of resolving financial matters) should also be issued before 11pm on 31 December 2020.
If, therefore, you are considering getting a divorce and you have any connections to Europe, whether that be in relation to a nationality of a spouse or having property or assets in a European country, speak to a family lawyer immediately. It may be highly advantageous to you to start those proceedings in 2020 to avail yourself of the more streamlined EU law while you still can.
And do not leave it until late in December! There will likely be a scramble to issue, and you do not want your application to be the one that does not make it.