Brexit has been likened to a divorce on more than one occasion; like many marriages, the UK and Europe’s relationship began with high ideals and a desire for harmony. As time progressed, the marriage strained and the partnership has headed for a messy divorce.
Amidst volatile politics in the UK, and a global pandemic, many areas within the UK’s domestic legal system are yet to be settled (and it is likely to take some time to completely disentangle from decades of integrated community law and associated case law). The transitional period which applies EU law to UK divorces expired on 31 December 2020. One group that will be considerably impacted by this separation is international couples, that is couples where one or both individuals have different nationalities/ or divide time between the UK and other countries. This short blog will discuss some of the ramifications of Brexit on the law pertaining to divorce.
Differences between divorce law in the UK and other countries
Divorce law in the UK, as it currently stands, makes it a reasonably desirable place to get married. The divorce process is relatively simple and inexpensive to operate compared with other countries (inside and outside the EU). Similarly, asset division in the UK starts from a 50/50 split regardless of income, enabling judges to make higher financial awards than may be permissible elsewhere.
One significant way that UK divorce law differs from other countries is in how it applies pre and post nuptial agreements. In the UK, nuptial agreements are not legally binding but will be followed if the arrangement is freely entered into by each party and they hold a full appreciation of its implications. The Court will also take into account the circumstances prevailing at the time of separation and whether adherence to the agreement remains conscionable (Radmacher v Granatino 2010). Due to this flexibility, international couples entering into such an arrangement may favour that their ‘jurisdiction clause’ (the clause which determines which country’s laws apply) elects the law of England and Wales to be applied in the event of future divorce.
Under European rules, non-UK nationals who are European citizens are entitled to choose which EU jurisdiction would apply to their contractual agreement (see, Recast Brussels Regulation (EU 1215/2012). This Regulation no longer applies after the transitional period.
This means that pre and post nuptial contracts cannot carry the certainty of a choice of jurisdiction, insofar as England and Wales are concerned as neither sits within the EU. Where a person has a choice of jurisdiction it is no longer possible to say, categorically, that they can elect to use the Courts of England and Wales to govern their divorce.
Another way that parties who are citizens of an EU member state, but living in another EU member state, can control which jurisdiction applies to their divorce is by employing EU Council Regulation 2201/2003. Under this Regulation, there is a rule termed the “Lis Pendens” which entitles the party who petitions divorce first to choose the jurisdiction where the divorce is actioned. This law works on the basis of mutual reciprocity between all EU member states.
What has changed from 1st January 2021?
With effect from 1 January 2021 the UK has repealed EU Council Regulation 2201/2003, thereby regressing to the “forum conveniens” rules which exist with all other non EU countries. While the Regulation will continue to apply to proceedings which have been lodged before 31 December 2020, proceedings lodged after this date may face difficulties establishing jurisdiction in their desired state.
Repealing the Council Regulation 2201/2003 also impacts the enforcement of financial orders (most divorcing couples opt to secure a separate financial order which stipulates how their assets will be divided). If parties have opted to use a nuptial agreement, this specifies how assets are to be distributed/ what maintenance is to be payable in the event of divorce. Currently, financial orders can be enforced through the EU Maintenance Regulation but this too will cease to apply to financial proceedings lodged after 1 January 2021. International couples may have some recourse to enforce a financial order through the 2007 Hague Maintenance Convention. However this will only be possible if the relevant country is a signatory to the Convention.
Following the end of the transitional period, parties seeking to divorce in the UK will now have to show that the jurisdiction is the most suitable to deal with the issues at hand. This provides additional uncertainty for international couples hoping to apply the law of England and Wales to their divorce proceedings and it may also impact a party’s ability to enforce any financial order associated with their divorce. Ultimately, this may impact where an international couple choses to reside.
Reprinted from Hodge Jones & Allen with emphasis by SD Law
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