Brexit: the big divorce’s effect on divorce law

However you voted you are probably tired of hearing how Brexit will bring riches or Armageddon. This blog does not aspire to deal with the doom and gloom but will outline how Brexit will affect divorce law and, depending on your point of view, it might not all be bad news.

The current law

The Brussels IIa Bis (the Regulations) currently govern much of our domestic divorce law and are a very clear example of just how intertwined European and our domestic legislation is. Some of the main articles relating to divorce are below:

Art 21: A divorce in a one member state is recognised in another member state.

Art 23: Judgements pronounced by one member state should be recognised in another member state.

Art 24: A Divorce certificate should not be appealed unless rectifying a material error.

As well as the above article 3 of the Regulations regulates in which jurisdiction divorce proceedings should be heard. The matter is dealt with by the member state where proceedings are first started and proceedings in another member state are put on hold.

The above regulations will be very familiar to anybody working in this area of law and the watch word which governs all of this is reciprocity. We have come to rely on other member states recognising the decisions of UK courts and the divorce certificates that may be issued as a result.

The benefits of such a system seem clear: they provide clarity and consistency without the need for convoluted satellite litigation regarding jurisdiction.

Criticism of the current regime

The Brussels Regulations have been consistently criticised since their inception. They have created a ‘race to issue’ which is the race to start proceedings in a jurisdiction which most benefits you. For example, a partner looking to only pay limited and short-term spousal maintenance may be better off initiating the divorce case in Germany rather than the UK and vice-versa.

The more legally savvy partner will generally make the decision about which jurisdiction the divorce proceedings will be heard. The legally savvy partner is often the one with the most financial clout and the regulations have been pilloried in some quarters because of this.

Brexit and the Great Repeal Bill

The Great Repeal Bill, unsurprisingly, repeals the European Community Act. However, in order to maintain a smooth transition EU law, to which the UK is currently subject, is to be placed on the statute books.

The concern for many legal practitioners and academics is how, if at all, we keep the key principle of reciprocity in place. A group of 15 international family law experts have met to discuss just that and three options were tabled.

The first is that the whole of the Brussels Regulation should be incorporated and reciprocity should be retained. We would however be left with the much maligned ‘race to issue’.

The second is that Brussels Regulation should remain English national law but that European Court rulings should not be binding. EU law changes would not apply in this country. Needless to say the group did not consider this further.

The third is that no part of the Brussels Regulation will remain in English national law once we leave the EU. We will need a new divorce jurisdiction law and the group have suggested that Art 3 of the Brussels Regulation be adopted with changes which would attempt to put a stop to some of the more blatant forum shopping which occurs.

Conclusions

It seems likely that a new divorce jurisdiction law will be necessary post-Brexit in some form; though there is no certainty as to exactly how this will look.

There is another side effect to Brexit. Academics and professionals have said that if new law is to be written it would be a good time to bring about some well needed reform. This could include no-fault divorces and given the recent judicial criticism of the current law in Owens v Owens this might well be on the cards.

We will be watching developments closely.