Divorce Law after Brexit – How will Separating Couples be Affected?

Divorce Law after Brexit – How will Separating Couples be Affected?

Caroline Fell, who heads up the Family Law and Mediation Team at Stone King, looks at how Brexit may affect UK expatriate families going through separation or divorce.

With recent estimates suggesting that 1.2 million UK citizens live in other EU countries, of which 185,000 reside in France, inevitably these citizens will need advice and support should they decide to separate or get a divorce. Over the course of our membership of the EU, many regulations have been developed to support the procedures and enforcement issues relating to divorce, children and financial support. However, while part of the reason for Britain’s ‘leave’ vote in June 2016 was reportedly the wish to cut Brussels’ red tape, it raises the question: where will this leave divorce law in March 2019, when Brexit becomes a reality?

What is the situation now?

Currently, the consequences of which country divorce proceedings are issued in can be very significant indeed. Under current EU regulations, the person who is first in time to issue divorce proceedings secures the jurisdiction of that country’s court. Subsequent decisions around the division of assets will be dealt with by that court. Each country has different divorce laws, particularly in relation to what happens to family assets after the divorce. England, for example, is often seen as a very favourable place for a wife to issue divorce proceedings. This is because, speaking in very general terms and in relation to a traditional family set-up, in the UK the contribution made by caring for children in a marriage is likely to be seen as equal to the financial contribution of a husband’s income. There is also a focus on the needs of the parties, and in particular those of the children. This may not be the case in some EU countries, where the person who has contributed more financially to the marriage and in whose name the assets are held, often the husband’s, may stand a greater chance of retaining such assets.

In France, the situation is somewhat different in that the courts will consider ‘matrimonial property regimes’. These are contracts that a couple enters into, sometimes without even realising, either when they get married or afterwards. There are a number of different regimes, but the three most common in France are ‘community of property’, where the parties share all assets; ‘separation of property’, where the parties own distinct shares; and ‘community of acquisitions’, whereby anything brought into the marriage (through prior acquisition, gift or inheritance) is likely to be the property of the person who brought it in, whereas anything purchased during the marriage is likely to be considered a joint asset. There will therefore be less focus on the needs of each party but rather an emphasis on when and how the assets have been accrued.

It is therefore very important to seek legal advice as early as possible, to avoid a situation where you may be at a disadvantage in the proceedings, because your spouse has issued divorce proceedings in a different country. While these regulations hinder any negotiation or discussion ahead of court proceedings, they do at least provide clarity and certainty for international clients. They also avoid protracted and costly litigation in two separate countries in order to agree where the divorce should take place.

Another benefit of the EU regulations is the enforcement of any maintenance order made. At present we can have confidence that, if an order is made for maintenance in one EU country, it can be readily and easily enforced in another EU country through the EU Maintenance Regulation.

What is on the cards after Brexit?

With Brexit, these procedures are likely to change. Whilst the Great Repeal Bill introduced in the Queen’s Speech on 21 June 2017 intends to convert into UK Law all directly effective EU Law, this cannot apply to laws which involve reciprocal provisions. This automatically excludes many regulations that directly affect family work. Therefore, in order to have the reciprocal provisions in place which currently exist – for example, the ‘first past the post’ system referred to above or the enforcement of maintenance orders – a separate agreement would need to be entered into with the 27 remaining Member States. Such agreements are likely to take considerable time. It is further recognised that, out of the 30,973 pieces of legislation to be dealt with by the Great Repeal Bill, family law regulations are unlikely to be high on the list for consideration. The cutting of Brussels’ red tape is likely to have far-reaching consequences for expatriate families.

Caroline Fell  Senior Associate, Head of Family Law and Mediation Team at Stone KingCaroline Fell

Senior Associate, Head of Family Law and Mediation Team at Stone King

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