Once the Brexit transition period ends at 11.00 pm on 31 December 2020 there will be a number of significant changes in how new cross-border divorce and child proceedings will be treated. The EU "umbrella" laws will no longer apply in the courts of England and Wales. Cases that commenced before 31 December 2020 and are ongoing will still be subject to the Brussels IIa provisions that currently apply. This means that all judgments delivered in a court of an EU Member State, regardless of whether the judgment is given before or after the end of the transition period will be dealt with by the current law (Brussels IIa) and acknowledged in the courts of England and Wales, irrespective of the end of the transition period. Similarly, judgments delivered in the courts of England and Wales will be recognised in the EU Member State courts. The government has issued a series of documents for guidance with regard to the changes that will take place when the transition period ends.
Annah Cheatham, an associate, commented "the wide-ranging and complex changes that will take place once the transition period ends suggests that if a couple should be contemplating divorce it would be far better to take this step before 31 December 2020"
Once the transition period has passed all EU Member State law will be revoked and will be replaced by jurisdictional rules for the court in England and Wales which replicate those in Brussels IIa and have been inserted into section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations. The potential for problems to arise will occur in cases that commence after the end of the transition period, in certain circumstances they will be treated differently, including the all-important issues such as maintenance and provisions for children including residency and parental access.
After the transition period, the courts of England and Wales will recognise, divorces granted in cases started in an EU Member State as they do currently for non-EU Member State countries under the recognition rules of the Family Law Act 1986 which implemented the 1970 Hague Convention on the recognition of divorce and legal separations. There are 12 EU Member States that adhere to the Hague Convention, Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden. Recognition of a divorce order granted in England and Wales by EU Member States will be governed by the either the 1970 Hague Convention on Divorce Recognition if the individual EU Member State is party to the convention or for those Member States that are not, their national rules of private international law will apply (for divorce and separation only). Divorcing couples will have to seek out legal advice at a local level.
As far as financial issues are concerned, for cases in England and Wales, the EU Maintenance Regulaton 4/2009 will be revoked. Therefore for cases started after the transition period in England and Wales will require the court to first have to decide if it has jurisdiction by applying the relevant non-EU rules; unless the divorcing couple has chosen the law in accordance with the EU rules, which vary according to the type of maintenance case, prior to 31 December 2020. In normal course, the UK will use the rules of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance with other States Party, which include all EU member states, with the exception of Denmark, where The 1973 Hague Maintenance Enforcement Convention will continue to operate between the UK and Denmark.
For financial cases in the EU the European Commission provides guidance stating that where proceedings involve a UK domiciled defendant unless an EU instrument sets out the rules of jurisdiction with regard to third countries, international jurisdiction will be decided by the national rules of the EU member state in which the court is seised (legal possession). Again individuals will need to seek out local legal advice to establish the national rules that apply.
Once a court has made a decision it is then imperative to ensure that the decision will be recognised. The European Commission informs that in some cases international conventions will apply, as long as both the EU Member State in question and the UK are both party to the convention. The UK and all the EU Member States, with the exception of Denmark, are party to 2007 Hague Maintenance Convention.
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