What is the impact of Brexit on Divorce?
Forum shopping after Brexit- Can I get a divorce in England and Wales?
With the news focused heavily on Covid-19, lockdowns, vaccinations, new strains and so on Brexit has somewhat taken a back seat. However, the legal implications are far reaching.
Within the family law arena, for example, leaving the EU means that ex-pats living in other EU countries are more likely to be able to obtain an English divorce.
For example, if you were previously an English wife living in Spain with your Spanish husband you would very likely not have been able to establish jurisdiction for a divorce in England. Now, however, you would likely be able to issue a divorce based on your sole domicile ie. the fact that you consider yourself to be English.
Arguably this opens the door further to what is known as “forum shopping”. This is often reported by the press in a somewhat negative light but, in reality, considering the potential outcome in all potential jurisdictions for divorce is a sensible exercise which should be undertaken by anybody who has links to different jurisdictions and is considering a separation or divorce.
This is primarily because the financial outcome can be very different in different jurisdictions and usually financial issues will be determined in the jurisdiction in which you divorce. There may also be other issues to consider, for example, how long you need to wait to divorce, the length or cost of the process, enforcement and so on. If you do not consider all of the options then it could be significantly to your detriment.
The timing of advice is also important and it is really a case of “the sooner the better” and “knowledge is power”. Within the EU there was previously a “first past the post” rule which meant that the first person to seize jurisdiction would effectively “win”. Again, post Brexit, that no longer strictly applies but timing is still going to be relevant.
The message, therefore, is if you have any concerns, questions or simply want to know where you stand you should take the appropriate advice as soon as possible. Simply having the information does not necessarily mean that you need to act on it if, for example, you are hoping that your marriage may sustain a difficult period. What is does mean is that you at least are aware of all of the options and potential risks.
On a more general level, it may be that the English courts needs to brace themselves now for an influx of “forum shoppers” who previously were unable to establish the necessary jurisdiction for an English divorce.