Brexit. A topic that has been overshadowed the last year by the global Covid-19 pandemic, however, reared its head in January 2021 following the end of the transition period at 11pm on 31 December 2020. This was the date that the European Union (EU) Regulations and Court of Justice of the European Union decisions stopped applying to all new family cases in England and Wales (as well as much of our other laws). In relation to divorce cases, there has been changes to the position regarding jurisdiction, which court has the power to determine a dispute, which was previously governed by EU law.
From 1 January 2021, after the end of the transition period, you can bring proceedings for divorce in England and Wales under national law if:
Domicile is a legal concept. It is not the same as residence or nationality. Under English law, no person can be without a domicile and can only have one domicile at any one time. Put simply, it is the county a person has as his or her permanent home (even if they are temporarily living in another country), although in practice it is far more complex. In an earlier blog, I examined domicile in more detail, which can be accessed here.
Under EU law it is only possible to rely on the sole domicile of one of the parties in a marriage where no court of any other member state has jurisdiction (known as residual jurisdiction). Furthermore, bringing a divorce petition based on sole domicile under EU law significantly limits the financial claims that can be made by either of the parties (restricted to ‘sharing’ claims, not based on financial ‘needs’ – which most cases fall within). Following Brexit, under the law of England and Wales, jurisdiction can now be established based on the sole domicile of either of the parties without any restrictions on finances.
When interpreting EU law, there has been an ongoing debate around whether a petitioner to divorce needs to be habitually resident in the country they are bringing their petition in for the entire year or 6-month period (if also domiciled) proceeding their application, or whether they just needed to be habitually resident on the day of their application, if they could show simple residence (i.e., not necessarily permanent, or fixed) for the relevant period beforehand. This issue has now been resolved in the new England and Wales national jurisdiction rules, which has adopted the latter approach. As such, providing that a petitioner to divorce lives permanently in England or Wales at the time of their application, they just need to demonstrate that they have lived here in some capacity for the relevant time beforehand.
In many cases, it may be possible for divorce proceedings to be started in more than one country. Spouses may be nationals of one country but living in another. Spouses may be living apart in different countries. The test for deciding forum, i.e., which competing jurisdiction should prevail, is now different under EU and UK law.
Under EU law, the forum test within the EU is lis pendens, namely the first party to lodge proceedings secures the proceedings in that country. The court of any member state second seized must decline jurisdiction.
As of 1 January 2021, the principle of lis pendens no longer applies in England and Wales; forum for both EU and non-EU countries will be decided by Judges based on which country has the closest connection (forum non conveniens). Relevant factors to such a determination will include the location of the parties, the assets, costs already incurred as part of related proceedings in the other jurisdiction, availability of legal aid etc. It can often be finely balanced.
If proceedings for divorce are started first in another country, this does not strictly prevent a petition for divorce in England and Wales from also being brought. However, the court at its discretion may temporarily suspend the proceedings until after the proceedings in the other country have concluded if they consider that country more appropriate to deal with the matter and to avoid conflicting judgments being made.
How the courts of each EU member states will respond from 1 January 2021 where divorce is lodged first (or otherwise) in England or Wales will depend on their national law. Legal advice from the other country should be taken (as it always should be if there are competing jurisdictions for divorce) and may differ between member states; they may well still give priority to the court first seized.
Why is establishing jurisdiction for divorce in England and Wales important? Because it is a pre-requisite to either party of the marriage to bring financial claims here relating to the divorce. England and Wales are often referred to as the ‘divorce capital’ of Europe; our laws focus on sharing, needs and fairness, which is often in contrast to some other European countries which operate a separate marital property regime (what you bring in to a marriage, you take out).
Gemma Garratt is a Senior Associate based in Brighton and London and specialises in international family law. If you have questions related to jurisdiction post Brexit, please contact Gemma here.