Brexit set to complicate divorce proceedings - Boodle Hatfield

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24 Dec 2020

Brexit set to complicate divorce proceedings

Divorces involving international couples are expected to become more complicated, with some individuals left worse off under recently confirmed rules, a law firm has said.

New rules coming into force from December 31 mean that if divorce petitions are filed in two different jurisdictions the country with which the parties have the strongest links will hear the divorce case.

At present, UK law incorporates EU regulations which provide a ‘first past the post’ rule.

This means in cases where a divorce could take place in multiple EU states, for example, if parties are of different nationalities, the country in which proceedings are issued first will have priority, even in cases where one party filed only hours or even minutes before the other.

Law firm Boodle Hatfield has warned a change to these rules could see lengthy cross-border disputes over which jurisdiction is the most appropriate in international cases and could as a consequence result in higher costs for many couples.

Harriet Errington, partner at Boodle Hatfield, said the confirmation of the rule change would bring clarity to many couples, although it may not be the outcome they were expecting.

Ms Errington said: “The new rules on jurisdiction are likely to bring a host of complications to divorce proceedings involving international couples, who will face further uncertainty along with the burden of higher litigation costs in cases where there is a dispute as to the most appropriate forum.

“The jurisdiction in which divorce proceedings take place can have an enormous impact on the financial award. The financially weaker partner could save millions by successfully securing the jurisdiction of the English courts.”

According to the law firm, many couples have been rushing to file for divorce in England to ensure that their divorces are decided under English law.

Boodle Hatfield said this was because English courts had a reputation for offering generous maintenance payments and an equal split of marital assets.

The courts also have far-reaching powers to deal with assets held in trusts, and even have the power to reverse transfers of assets arranged prior to or during divorce proceedings.

Despite this, data from the Ministry of Justice, obtained by law firm Wilsons found the number of divorces in the UK has unexpectedly fallen by 8 percent to 108,900 in the year to September 30 from 118,100 in the previous year.

Graham Coy, partner at Wilsons, said the data showed that lockdown had in fact not triggered a big jump in divorcess, as originally predicted.

Mr Coy said: “The lockdown has placed relationships under tremendous pressure but on these statistics, it hasn’t caused these relationships to buckle and break.

“Some people may not have gone ahead with divorces as they are in a time of such financial and employment uncertainty.

“Other couples are pausing to think about what really matters to them and finding a way to stay together.”

This article first appeared in the FT Adviser on 24 December 2020.