The Known Unknowns
Resolution have issued Brexit guidance for Family Lawyers. Their International Committee has set out some handy tips for family lawyers dealing with international divorce cases. There are still a large number of unknowns, known unknowns or otherwise – but it is a useful aide memoir for those family lawyers dealing with these types of cases.
The following are the issues they recommend that all lawyers dealing in international divorce cases should have in mind:
- Clients who are considering divorce should be encouraged to take advice at the earliest opportunity in order to identify any jurisdictional issues. If Brussels II a ceases to apply without sufficient transitional and reciprocal provisions being put in place then time is likely to be of the essence when seeking to seize jurisdiction of the English courts.
- At the moment, a divorce obtained in an EU state (other than Denmark) is currently recognised throughout the EU. If the current EU regulation ceases to apply to the UK, recognition of an English (Welsh) divorce will be a question of national law. If your client is a foreign national currently divorcing in England, it would be prudent to check whether an English divorce will still be recognised in their state of origin if England is no longer a member of the EU.
- If it is likely that your client will obtain an English maintenance (periodical payments) order against their partner or former partner for themselves or their children and the payer is living in another country within the EU, will this still be enforceable?
- Similarly if there is an order that a property located in another EU state is transferred to your client for the purpose of providing a home, will that be enforced in another EU state once the UK leaves the EU? In this and the above example, can your client obtain a mirror order (i.e. an order in the other country in the same terms as the original order) in the country of enforcement (i.e. the country where the property or person paying maintenance is living)? If not, obtaining a more favourable financial award in England may be a futile exercise. It is certainly imperative that your client’s case is dealt with in England as quickly as possible while the current rules apply.
- British expats or foreign nationals living in the EU may also have difficulties in enforcing foreign maintenance or property orders in England once the UK is no longer a member of the EU.
- Clients who are considering child arrangements across the EU should be encouraged to take advice at the earliest opportunity in order to identify any jurisdictional and recognition issues. If your client agrees to their child(ren) moving to or from England as part of a divorce or separation and obtains an order for contact, will this be recognised? Again, a mirror order should be considered.
- For those negotiating a pre/post-nuptial agreement in England involving one or more EU nationals, consideration needs to be given to jurisdiction clauses. Currently, a clause providing that a divorce be dealt with exclusively in one EU state would not be effective. Going forward, these clauses should be considered as they may assist in ensuring that a divorce is dealt with in one particular EU state.
- On the other hand, it is possible at the moment to agree in advance which EU state may deal with maintenance and that a particular law (other than English law) will apply to maintenance. This may not be effective in the future. These clients should be advised to take periodical advice to ensure that their nuptial agreement continues to serve its purpose as the effect of the UK’s withdrawal from the EU becomes clearer.
We have some additional considerations, courtesy of International Family Law partner, Frank Arndt who says:
“In all cases with an international element, it is vital to have the right expertise from the outset. It will help to avoid any nasty surprises in the future.
If you have an existing Maintenance or Capital order make sure that the order is enforceable in the Country of the debtor and that it does not breach domestic order public rules. An example of this happening was in relation to an Australian Maintenance Order which the German Court did not recognise as enforceable. In that case, the mother was left with no maintenance at all.
Get specialist advice before you get your first original order. Later it can be too late and very expensive to rectify any mistakes.
Before and after Brexit, the existing and future international settlement become more difficult. If your case has an international element, get advice now.
Be aware of the different income tax rules in relation to maintenance within the EU and outside the EU, which can be tricky to negotiate.”
No change, yet…
For the time being, the existing EU legislation remains in force. The family related law which applied before the referendum still applies today and will likely continue to do so until at least 2019. But keep an eye out for future developments and be alive to the issues that might have a significant impact on those clients going through an international divorce.
For more details on this or a family law matter, please do not hesitate to contact James or Frank. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us to [email protected]. You can also follow us on twitter and LinkedIn and Facebook for the latest news and views on family law.