Legal Guide

UK Courts Preferred For Post-Brexit Divorce Proceedings

Prior to Brexit, divorce proceedings were much more straightforward. Under the Brussels IIa, the EU provided legal instruments that covered everything from child arrangement issues to asset awards in divorce settlements. 

Pre-Brexit divorces were simple because proceedings were conducted in one jurisdiction. The lis penden rule was clear cut. Whichever country divorce proceedings are filed first would oversee the settlement. 

This prompted cross-border couples to choose the country which would give them the most favourable outcome. However, the lis penden rule was revoked in the divorce between the UK and the EU. 

Section 5 of the Domicile and Matrimonial Proceedings Act 1973 has since been amended. The ‘race to the court’ rule is no longer an option. Moving forward, jurisdiction will be subject to ‘Forum Non Conveniens’ - the country with which the parties have the ‘closest connection’. 

One could say the new rules are fairer but they do prompt complications with family law and regulations. Litigation costs will be far higher where disputes arise. Legal experts also expect a list of other complications to arise in international divorce cases also. 

London Dubbed the Divorce Capital of the World” 

Jurisdiction has a significant impact in the outcome of a divorce settlement. The tradition in English courts is to award an equal division of assets acquired during the course of the marriage. British courts also award generous maintenance payments.

The Financial Times reports that estranged couples seeking to settle maintenance claims in the post-Brexit era still favour the UK’s family courts. However, the motivation for opting for jurisdiction in the UK may purely be for financial reasons - and this could be problematic under the new rules. 

For instance, in Dubai, spousal maintenance will only be awarded for three months. In the UK, there is the potential for lifetime awards. But without the lis penden rule, a spouse may not have the option to start proceedings through the British courts.

To commence divorce proceedings in a UK family court, the petitioner must demonstrate that both parties were habitually resident in England or Wales during the marriage and prior to the divorce. The respondent must reside in the UK and the applicant must have been a habitual resident one year prior to filing for divorce. 

Child Maintenance Could Be Affected

Ordinarily, the decision made in one court will be upheld by the country in which the other spouse resides. 

That means that if child maintenance is awarded until the age of 18 in British Courts, the parent without custody will have to pay maintenance to the sum awarded in the UK. 

Even if the receiving spouse decides to live overseas with the child in a country with lower living costs, the award for child maintenance will not be adapted. The paying party is not permitted to make a new application to the Child Maintenance Service.

There have been no changes to the laws involving child custody. The Law Society reports that divorce cases involving children will be determined by the courts in which the child resides. 

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