Following the UK’s exit from the EU, there will be a period of transition during which international law practitioners, such as our team at Witan Solicitors, will face uncertainty as the UK adjusts its position on the application of national and international laws concerning cross-border family law cases.
As European Regulations, namely Brussels II and the Maintenance Regulation, no longer apply in the UK after 1 January 2021, the UK will rely on existing domestic laws (Domicile and Matrimonial Proceedings Act 1973) and will have to find suitable substitutes in the existing international conventions and instruments that regulate international law, such as the Hague Convention of 1970.
However, as the Courts and practitioners are yet to fully adjust to this new post-Brexit landscape, guidance on the exact approach has not been settled. Matters are not helped by the fact that not all EU member states are signatories to the same international instruments, therefore we are expecting to see a rise in litigation for cross-border family law cases regarding:
- Divorce jurisdiction where more than one European Country is involved
- Recognition of divorce rulings in the UK and the individual EU member states
- Hearing, recognition and enforcing parental responsibility cases across EU borders
- Hearing, recognition and enforcing maintenance cases across EU borders
- Additional EU laws on child abduction
Jurisdiction issues in Cross-Border Divorce Cases
From the 1 January 2021, Brussels II Regulations ceased to apply to divorce proceedings instituted in England and Wales. This means the lis pendens principle no longer applies to competing proceedings here and in an EU member state. Instead, the English courts will revert to forum non conveniens and assess which is the most appropriate court to hear a case, where the family has the closest connection (Schedule 1, Domicile and Matrimonial Proceedings Act 1973).
Simply put, the loss of lis pendens means the loss of certainty in proceedings as jurisdiction will no longer be assigned automatically. The application of forum non conveniens is likely to increase contested litigation about divorce jurisdiction, resulting in uncertainty, and time and costs implications for international clients.
Recognition issues in Cross-Border Divorce Cases
Recognition of English proceedings in all EU member states is also a cause for concern. Under Brussels II, divorce in any EU country was recognised in all member states. The UK is no longer part of the Union, therefore jurisdiction will have to be decided either under the 1970 Hague Divorce Recognition Convention, or the Countries own rules on jurisdiction instead.
The issue we are faced with is that only 12 of the 27 EU member states (Cyprus, the Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia, and Sweden) are signatory to the Convention. Even though the UK is unlikely to pose non-recognition issues for divorces made abroad, there is a concern that divorces completed in the UK will not be recognised in the 15 remaining EU member states which are not part of the Convention. Member states may differ in their approach, and there will remain a risk of parallel proceedings as there always has been with non-EU countries.
This is why, if the divorce involves a country that is not a signatory of the Convention, families must seek advice from a legal practitioner who has in-depth knowledge of the specific country’s national laws and regulations.
The effect of post-Brexit jurisdiction changes to rules in England and Wales
Rules on the jurisdiction in divorce have also changed in England and Wales after Brexit and slight variations to the previous grounds for jurisdiction will apply, including the addition to sole domicile to the list of primary grounds. Another important change to be aware of is that it is now required to be a habitual residence on the day the proceedings were issued only (see Marinos v Marinos  EWHC 2047), rather than for the previous three months, as outlined by EU law. This opens up the possibility for more proceedings to be brought to England.
The introduction of “no-fault” divorce in the UK, can be another reason for international couples to take their divorce proceedings to England and Wales post-Brexit. The UK has been working on developing revolutionary no-fault divorce legislation which allows partners to issue a joint application for divorce to end the marriage as peacefully and smoothly as possible.
Over 30 years in the making, the legislation, which is expected to minimise the impact of divorce proceedings on children, officially received Royal Assent in June 2020 and is expected to come into force by autumn 2021. Once that happens, no-fault divorce proceedings in the UK are expected to take a minimum of 26 days to complete.
Maintenance cases and the UK’s application to join the Lugano Convention
Maintenance in the context of family law relates to a needs-based provision and can include property, capital, lump sums and pension shares. The way different countries handle maintenance varies greatly with England and Wales being one of the more generous jurisdictions when it comes to periodic spousal payments. With the EU Maintenance Regulations now excluding the UK, problems with enforcement and recognition can be expected to arise.
To combat that, the government has applied to join the Lugano Convention independently of the EU. The Convention has already been signed by the EFTA countries (Switzerland, Norway, Liechtenstein, Iceland) and the EU. However, it’s not yet clear whether the EU will approve the UK’s application.
If the UK accedes to the 2007 Lugano Convention in its own right, it will retain lis pendens rules in respect of proceedings involving the same cause of action and related proceedings. However, practitioners should be aware that even if the UK accedes to the 2007 Lugano Convention, that may not prevent parallel proceedings in the UK and in EU member states.
This may prove problematic going forward because the EU Maintenance Regulation does not contain any provisions addressing how a conflict of jurisdiction with a non-EU member state is to be resolved.
What happens while we wait for a decision?
Until the UK accedes to the Lugano Convention, cross-border maintenance cases are left hanging in the balance with a risk of litigation looming over them. Re-joining the Lugano Convention is in many ways more important to aspects of litigation than the EU and UK’s new trade deal, which includes provisions for legal services but does not cover the mutual recognition of English court judgments or broader judicial co-operation.
During the waiting period, maintenance jurisdiction will be regulated by domestic rules, while recognition and enforcement will be governed by the 2007 Hague Convention (except for Denmark which is the only EU member state who has not signed the Convention; UK/Denmark cases will be governed by the 1973 Hague Maintenance Enforcement Convention instead).
The 2007 Hague Convention contains no general maintenance jurisdiction rules and no rules for assessing priority between competing jurisdictions. The government has stated that as there are no relevant Hague Conventions to fall back on in relation to maintenance jurisdiction, it intends “broadly” to adopt the position prior to the introduction of the EU Maintenance Regulation and other EU rules.
The level of uncertainty that still surrounds the cross-border family law, means that international families will face more litigation than ever before and solicitors dealing with cross-border cases will need to possess some knowledge of the individual EU member states. In any case, the effects of Brexit on international law will be felt well beyond 2021.