Currently, England is known as the ‘divorce capital’ of the world and this label arises partly because of the rules that apply between the UK and the EU which, (until 31 December 2020), are set out in Brussels II Regulation (EC) No 2201/2003, known as Brussels IIa.
This current law which comes to an end on 31st December, provides that where the Courts in England and Wales have jurisdiction and one of the other European member states has jurisdiction, the party who issues proceedings first seizes jurisdiction. The reciprocal agreements contained in Brussels IIa provide that if proceedings are subsequently issued elsewhere, that second jurisdiction is forced to stay proceedings.
These rules have provided a modicum of certainty, but they have also meant that there has been a forum race in some cases for a litigant to secure the jurisdiction (by issuing first) that is likely to give them the better outcome.
At the end of the transition period, the UK will cease being subject to EU laws and therefore Brussels IIa will no longer apply.
What will happen after this?
Well, the situation is likely to become much less certain.
After the transition period ends, and where there are competing jurisdictions, the English Court will need to undertake an analysis of whether the jurisdiction here is the most appropriate one or whether the jurisdiction of another European country’s Courts would be better placed to deal with the matter. I anticipate an increased number of cases where jurisdiction is a contested issue.
The factors that the Court will need to look at when determining which jurisdiction is the most convenient, are things such as; where the parties have properties, where they work and where they spend most of their time. The Court will need to embark on a detailed factual analysis before reaching a decision on jurisdiction.
This is going to be particularly relevant for international spouses who may be classified as being ‘high net worth individuals’. There are also going to be implications for enforcement of Judgments in other EU states as these will no longer be automatically recognised.
It may be that the UK enters into further conventions regulating these sorts of issues, but at this stage it is not clear.
It is therefore particularly important that spouses with international connections take detailed advice early.
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The above is accurate as at 10 December 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.
