When a divorce involves two people who are residents or nationals of separate countries we have to consider the following:
- What laws should decide the divorce settlement and arrangements for children – which country has jurisdiction?
- Will the divorce be recognised internationally?
- Will there be any difficulty in enforcing a divorce order made by judges in one country through the courts of another?
When the UK left the EU in 2021 the approach to these matters changed. Here we look at the approach taken to jurisdiction, recognition and enforcement in UK-EU divorces.
Which country’s law will apply to my UK-EU divorce?
Before the UK left the EU the rules in the regulation known as Brussels II dictated which country would have the jurisdiction to hear a particular divorce case. For those seeking a divorce in the UK this meant fulfilling criteria about habitual residence and domicile. While many of the rules in Brussels II still apply following the UK’s EU departure one key principle does not – ‘lis pendens’. This meant that whichever court in the EU or UK first receives a divorce petition had the automatic right to hear the divorce.
In practice the removal of this ‘first to file’ approach means a spouse can issue proceedings in an EU country even if a petition has already been issued in the UK. It will be up to that country to decide whether its national law should be applied to the divorce.
The regulations that were introduced when the UK left the EU did include a discretionary right for the courts in England and Wales to halt divorce proceedings if there were already live, related proceedings in the EU. But the power is only discretionary and leaves alive the real possibility of expensive and time consuming disputes over divorce jurisdiction and even the possibility of two sets of proceedings being heard simultaneously, one in the EU and one in the UK.
Will my divorce be recognised in the EU?
Your divorce decree is a formal legal document that confirms your marital status. You’ll need to produce it regularly, for example of you wish to re marry or you are seeking a loan or mortgage. If you spend any time in the EU or have assets there it’s important that the document s is readily recognised by the appropriate authorities.
The Family Law 1986 implemented the 1970 Hague Convention on the recognition of divorce. EU countries that signed the Hague Convention will as of right recognise a divorce granted in the UK. However only 12 of the 27 EU member states are signatories of the Convention, and several large countries, including France and Germany are not among the 12.
If you need to have your divorce recognised in one of these countries you should seek legal advice. The question of whether or not your divorce will be recognised rests squarely on an interpretation of the national laws of the relevant EU country.
How can I enforce a divorce order in the EU if my spouse doesn’t follow it?
If assets that form part of a financial order are located in an EU country or your ex spouse lives in the EU, your ability to enforce the financial order will be critical. The applicable rules are contained in the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
While many of the rules are similar to those that applied before the UK left the EU there are some differences. For example, there needs to be e a declaration of enforceability (registration for enforcement) of the order before it can be enforced across the EU. In addition, if you relied on sole domicile to have your divorce heard in the UK extra care should be taken when attempting to enforce any order for maintenance across the EU.
The regulations are complex. It’s advisable therefore to seek specialist legal advice if there’s a possibility that your divorce may be decided by an EU court or if you may need to take legal action in the EU to secure your financial settlement and/or maintenance payments. Remember, if your divorce proceedings began before the end of 2020 there are mechanisms in place for mutual recognition and enforcement. The issues we’ve touched on above are of interest only if your divorce takes place in the period after the UK left the EU.