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No Deal Brexit Divorce


Joanna Gardner explains that the Government has published an article explaining how family law cases would change if the UK leaves the EU with ‘no deal’

In the first of three articles she summarises the Government’s plans with respect to different areas of family law

Divorce

Currently and up to 29 March 2019, the UK applies EU rules to determine:

  • which country's courts hear a case raising cross-border issues with other EU countries (jurisdiction)
  • which country's laws apply (applicable law)
  • how a judgment obtained in one EU country should be recognised and enforced in another (recognition and enforcement)
  • how cross-border legal procedural matters are handled (such as taking evidence in one country for use in proceedings in another).

Currently divorce jurisdiction in UK is primarily based on the Brussels IIa rules for all cases. An additional basis for jurisdiction, the sole domicile of either party to the marriage, is only available as a basis of jurisdiction if no other EU court has jurisdiction

The UK is already (unaffected by EU membership) a contracting state to a number of Hague Conventions on family law, which cover many of the same areas as the EU Regulations.

In future

For Divorce jurisdiction in England, Wales and Northern Ireland the UK government would seek to repeal the Brussels IIa rules and would replicate them in English, Welsh and Northern Irish law (save for joint application which is not applicable). The additional basis of sole domicile of either party, would be available for all cases. The Scottish Government is considering the best approach for Scotland in the area of divorce jurisdiction.

The EU 'lis pendens' rules which require courts to halt divorce proceedings if an EU court has already begun to consider the case, would be repealed for all parts of the UK as they would not be reciprocated by the EU courts. Instead the courts in each UK jurisdiction would decide which is the most appropriate court to hear a case, as they currently do for cases outside the scope of Brussels IIa.

These changes in divorce jurisdiction and recognition provisions would be replicated for same sex marriages and civil partners in all applicable parts of the UK. The UK would also retain domestic rules that allow for the UK to provide a divorce or dissolution jurisdiction of last resort for cases where the couple formed their relationship under the law here and other states do not recognise their same sex marriage or civil partnership.

Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, the government cannot guarantee that EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. Individuals with cases in progress on 29 March are encouraged to seek legal advice on how this may affect them.

The article is set out at:

https://www.gov.uk/government/publications/handling-civil-legal-cases-that-involve-eu-countries-if-theres-no-brexit-deal/handling-civil-legal-cases-that-involve-eu-countries-if-theres-no-brexit-deal

If you have questions about any family matter that affects you then Joanna Gardner would be pleased to advise you. Her contact details are:

joanna.gardner@smesolicitors.co.uk

 or tel: 01905723561

 

Added: 04 Oct 2018 11:18


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