Breaking up is hard to do, and it’s about to get even harder as we exit the EU - Lucia Clark

At the start of 2020, many would have expected Brexit to dominate this year's headlines. Despite Covid taking that top spot, the end of the transition period on 31 December 2020 will result in some very significant changes, including for the day to day lives of UK individuals. One aspect of this is that rules will change for couples and families undergoing separation.

Lucia Clark is a Partner, Morton Fraser
Lucia Clark is a Partner, Morton Fraser

Will Brexit change where I can get divorced?

It might. All countries have rules about whether or not you can deal with matters in the local court. For example, you can't just decide you want to get divorced in Hawaii if you have no other connection there. These are called rules of jurisdiction. Within the EU, there are uniform rules of jurisdiction for dealing with divorce, set out in an EU Regulation. From 1 January 2021 onwards, the UK will no longer be part of those rules. Going forward, the Scottish court will instead have jurisdiction if either you or your spouse have been “habitually resident” in Scotland for one year, or are “domiciled” in Scotland (regard it as your home country even if temporarily living elsewhere). This means you could deal with divorce in the Scottish court even if neither of you are actually living here.

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What if there are two countries linked to your marriage, both of which could deal with your divorce?

Under the EU rules, the place where divorce proceedings are started first "wins". That was the case even if the other country had much stronger links to your married life together. For cases started from January 2021 onwards, the test used by the Scottish courts will instead be to consider which court is best-placed to deal with your case. The remaining EU countries will decide cases on their own rules - and some may still regard starting court proceedings first to be the most important factor.

Will my divorce be recognised abroad?

For cases started before 11pm on 31 December 2020, the old EU rules will apply - which means that a Scottish divorce will be automatically recognised in any other EU country.

For cases started from January 2021 onwards, this is no longer automatic. Some of the EU countries are signed up to another convention, which means that respective divorce decrees will be recognised between those countries. However, about half of the remaining EU countries are not signed up to this Convention - as yet, anyway. So for those countries (and other countries outside the EU) you need to check if your Scottish divorce will be recognised or not.

My spouse lives abroad, and I have a court judgment against them - can I make them pay?

It depends when your court proceedings started, and what the sum of money you are due is for.

Before 31 December 2020, if the financial sum was for "maintenance" (construed very widely, basically to mean meeting your needs - so a lump sum could fall within this definition), then EU rules could be used to enforce this. However, there were no uniform EU rules to enforce payment of a lump sum in a divorce that wasn't "maintenance" or to enforce transfer or sale of a property abroad.

Going forward, there will be a replacement system for enforcing maintenance payments within the EU27, using a different international convention. There will still be no uniform system for enforcing other payments - and that is where you need specialist advice about how best to protect your situation.

I'm in Scotland, and my spouse is in England. Does this affect me?

Surprisingly, it probably will. There were some EU rules which the UK Government chose to apply between the different parts of the United Kingdom. One of these was to apply the EU Maintenance Regulation between England and Scotland. In summary, the result of this was that separating couples could find themselves dealing with their divorce and division of assets in the Scottish court, but issues of spousal maintenance in the English court. After 31 December 2020, these rules will no longer apply. There seems less prospect of expensive (and stressful) split proceedings between two different courts.

Lucia Clark is a Partner, Morton Fraser

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