The impact of Brexit on divorce and financial proceedings in England and Wales

The impact of Brexit on divorce and financial proceedings in England and Wales

Family analysis: While the UK left the EU on 31 January 2020, EU law continues to apply until 31 December 2020 (implementation period (IP) completion day). Stuart Clark and Michael Allum, partners at The International Family Law Group LLP, consider the impact on divorce and financial proceedings in England and Wales going into 2021 and highlight some of the key points for practitioners to have in mind leading up to New Year’s Eve and beyond into 2021.

What are the key changes in relation to jurisdiction in divorce proceedings that family practitioners need to be aware of after IP completion day?

EU family law ends in England and Wales at 11 pm on 31 December 2020 (IP completion day). After that time and date, divorce and financial proceedings issued in England and Wales will be governed by domestic law, relying also on Hague Conventions. There are transitional arrangements in place which will affect divorce and financial proceedings issued prior IP completion day, even if the final orders in those proceedings are not made until 2021 or beyond.

During the lifetimes of our careers as family lawyers in England and Wales, jurisdiction for divorce has always been governed by Council Regulation (EC) No 2201/2003 (Brussels II bis or Brussels IIA). The substantive provisions of Brussels II bis, art 3 will continue, with some minor alterations, from 1 January 2021 by SI amendments to the Domicile and Matrimonial Proceedings Act 1973.

The fourth and fifth indents of Brussels II bis, art 3(1)(a) have been re-written into domestic law applying the Marinos school of thought (per Marinos v Marinos [2007] EWHC 2047 (Fam)), as preferred to Munro (per Munro v Munro [2007] EWHC 3315 (Fam), [2008] 1 FLR 1613), ie the petitioner needs to be merely resident and not habitually resident for the six or twelve month period leading up to the issue of proceedings. This will potentially further open to

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