Getting divorced if there is a no-deal Brexit

House of Commons Library

Getting divorced if there is a no-deal Brexit

• This Commons Library briefing paper considers how getting divorced might be affected by a no-deal Brexit This briefing paper considers how getting divorced might be affected by a no-deal Brexit and deals with the position in England and Wales except where stated otherwise.
• It does not deal with related family law matters relating to children and the payment of maintenance.
• However, Brexit may significantly affect procedural matters relating to divorce, particularly in cases involving divorcing spouses from separate EU countries.

Civil judicial co-operation

• Civil judicial co-operation in family law is the legal framework that governs the interaction between different legal systems in cross-border situations, including divorce. In order to provide certainty and to avoid litigation in the courts of more than one country on the same dispute, a set of rules sets out:
  • which country’s law applies;
  • which country’s courts have jurisdiction to hear the case; and
  • the recognition and enforcement in one country of a judgment obtained in another country.

Current rules

• Both regulations deal with procedural matters rather than substantive law.
• Currently, divorce jurisdiction in England and Wales for all cases whether or not there is an international dimension - is primarily based on Brussels IIa rules.
• The 1970 Hague Convention on the Recognition of Divorces and Legal Separations provides rules for the recognition of divorces and legal separations.

Getting divorced after exit day if there is a no-deal Brexit

• The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 were made on 6 March 2019 as part of the Governments preparations for a no-deal Brexit.
• They will come into force on exit day.
• The relevant matters are to be governed instead by existing international conventions and a combination of new and pre-EU domestic rules.
• The Government has published guidance which deals with the practical effect of no-deal Brexit on family law disputes.

What will be the position after exit day if there is a deal?

• The terms of any Brexit deal would determine which rules would apply in respect of civil judicial co-operation in family matters after exit day.
• The proposed Withdrawal Agreement, which has not been endorsed by the House of Commons, covers jurisdiction, recognition and enforcement of judicial decisions, and related co-operation between central authorities.
• The associated Political Declaration states that the Parties would explore options for judicial cooperation in matrimonial, parental responsibility and other related matters.