On 31st December 2020 at 11pm the transition period for the UK leaving the European Union (EU) ended. This means family lawyers are operating under a new regime when considering cross border divorce actions with countries that are members of the European Union. Brexit has affected divorce law in Scotland in a number of different ways.
Jurisdiction
One area where Brexit has impacted divorce law is jurisdiction. Previously the rules on jurisdiction were provided for in EU legislation. This legislation no longer applies in Scotland. Now if we want to raise divorce proceedings in Scotland, the Domicile and Matrimonial Proceedings Act 1973 provides the rules on jurisdiction. This was the legislation applicable before we joined the EU. Under this legislation, Scottish courts can entertain an action of divorce:
- if either of the parties to the marriage is domiciled in Scotland, or
- if either of them was habitually resident in Scotland throughout the period of one year immediately before the raising of the action.
This means that if neither party lives in Scotland but at least one of them “domiciled” in Scotland, a divorce action can be raised in Scotland.
What does “domiciled” mean?
“Domiciled” can be either domicile of origin or domicile of choice. Everybody has one domicile. A person cannot have more than one domicile.
Domicile of origin flows from your parents. When you are born, you acquire a domicile of origin. You can change your domicile during your life if you choose a different domicile. You can acquire a domicile of choice if you live in a different country with the fixed intention of settling there and making it your sole or principal home for an indefinite period.
Many ex-pats will remain domiciled in Scotland even though they may live outwith Scotland for many years, often for employment reasons.
Therefore, if you are domiciled in Scotland, there is jurisdiction to raise divorce proceedings in Scotland. You can also raise divorce proceedings in Scotland if you have been living in Scotland for a year. This means that a person with a different domicile who moves to Scotland has to wait until they have been living here for a year before they can raise a divorce action in Scotland.
Competition between jurisdictions
Sometimes it is possible for divorce proceedings to be raised in more than one jurisdiction. There are occasions where each party wants to raise in a different jurisdiction. Since Brexit the rules governing this kind of competition have changed.
Competition between the EU and the UK
The rule within the countries of the European Union is “first come, first served”. So, if a divorce action is raised in France and a subsequent action is raised in Italy, the action in France will take precedence. This means the action in Italy will have to be stayed. The rules governing the UK courts are now embodied in the Domicile and Matrimonial Proceedings Act 1973. This provides that the action will proceed in the court which is most fair and convenient to the parties.
As things stand, there has been no “deal” between the European Union and the UK government in relation to divorce actions. Therefore, there could be a situation where a divorce action is raised in France and a subsequent action raised in Scotland. The French court would take the view that the French action should proceed since it was raised first. The Scottish court may take the view that the Scottish action should proceed because that may be more convenient and fair.
There has yet to be any litigation on this point. It seems urgent that the EU and the UK government reach an understanding so that the situation is clear. Otherwise, it may encourage unnecessary litigation at significant expense to both parties.
Competition within the UK nations
The rules within the UK are different. Within the UK the rule is that the action which takes precedence is the action raised in the jurisdiction where the parties last lived together as a family. Therefore, if a divorce action is raised in Scotland by one party and another action raised in England by the other party the courts in each jurisdiction will consider where the parties last lived together as a family. That is the jurisdiction in which the divorce action will proceed.
Recognition of divorce decrees
Another area of divorce law affected by Brexit is the recognition of divorce decrees by other countries. Since withdrawal from the European Union, Scottish divorces are no longer automatically recognised in EU member states. There is a convention of 1970 which provides that the EU member states which are party to that convention recognise Scottish divorce decrees. However, not all EU member states are party to that convention. Therefore, there is a risk with some countries that a Scottish divorce decree will not be recognised.
It is important in this situation that local advice from a family law specialist in the EU country is obtained. The UK government has applied to join the Lugano Convention of 2007. The Lugano convention would govern the recognition and enforcement of foreign judgments in member countries. However, the EU has rejected the UK’s application. The EU commission stated that the provisions of the Lugano convention are extended to countries which have a close regulatory relationship with the EU. Since withdrawing from the EU’s internal market, the UK no longer has such a relationship with the EU.
In terms of Brexit and divorce law it is early days. It seems likely that litigation will be required to resolve difficulties created by the UK’s withdrawal from the EU. It is to be hoped that the UK government and the EU will cooperate to minimise any such difficulties in the interests of the citizens of the EU members states and of the UK.
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