Cross-border Divorce in Europe after the Brexit Transmission Period
In the aftermath of Brexit, cross-border divorce and associated issues related to maintenance orders and children law will remain the same during the course of the transition period, meaning that the legal mechanism applicable to the EU Member States which assists divorcing couples where two countries are involved known as Brussels 11A regulation will still apply. The European Commission has provided guidance to the 27 member states of the EU that for divorce proceeding already underway or commenced and finalised within the transition period indicating that the jurisdiction rules of Brussels 11A will still apply. The court of England and Wales has already enshrined in law the recognition of divorces granted in EU Member States however this has not been reciprocated by the EU.
Once the transition period comes to an end and if there have been no further changes to the law by Brussels relating to the EU Member States to permit the Brussels 11A regulation (something very similar) to come into effect then the laws in the EU Member States at the end of the transition period will change and become more complex, costly and time-consuming. Giambrone’s family and divorce team are concerned that the obstacles that will arise in the future will cause real harm and hamper the establishment of a stable environment for families divorcing parents.
There is no international law that applies to divorce and its surrounding issues and whilst the courts in England and Wales will recognise divorces granted in the EU Member States, the recognition by the EU Member States of divorces granted in England and Wales with be governed by each Member State’s own national rules of private international law with the exception of those Member States who have signed up to the 1970 Hague Convention where the rules for divorce and separation can apply.
Only 12 EU Member States signed up to the 1970 Hague Convention on Divorce Recognition, they are Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia and Sweden. The remaining EU Member States have a patchwork of national rules of private international law. Without the reciprocity that the courts of England and Wales have extended this will mean that the court of England and Wales will have to recognise decisions made in each EU Member State where the divorce takes place under the Family Law Act which implemented the 1970 Hague Convention on the recognition of divorce and legal separations. However, the court in the EU Member State would not have to recognise decisions taken in the court of England and Wales.
All the other divorce-related family issues such as recognition of maintenance orders and their enforcement, residence of children of the marriage, access to children, international child abduction and in some cases guardianship orders will be affected. There are concerns that crucial matters such as international child abduction would suffer unacceptable delays compared with the speed of action under Brussels 11A.
It is still possible to largely avoid the tangle of jurisdictions and enforcement therein in a cross-border divorce if a divorce is taking place during the transmission period, provided there is agreement between the parties and they can come to a settlement.
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