Brexit dos and don'ts for family lawyers before 31 December

There is now very little time left before the end of the Brexit transition period. Here are my top 4 things to check for on each of your cases before it's too late...

1. Do consider issuing divorce, financial remedy or children proceedings, as the case may be, before 11pm on 31 December if your client may want or need to take advantage of the EU’s first-in-time, mutual recognition and reciprocal enforcement rules. But...

2. Don't rush into issuing divorce proceedings before 11pm on 31 December if your client wants an English divorce and financial orders but you think the only jurisdictional basis for divorce here is the sole domicile of the petitioner or the respondent. At present, EU law forbids the Court from dealing with maintenance issues if the divorce is based on sole domicile. After 31 December, that prohibition will no longer apply and it will once again be the case that an English Court dealing with divorce can deal with all consequent financial issues. So, we should weigh up the risk of the other party issuing elsewhere if we wait, with the problem of not being able to deal with maintenance. This is a difficult choice which we must ask clients to take responsibility for.

3. Do consider issuing financial remedy proceedings in England before 11pm on 31 December 2020 if your client wants to rely on a maintenance choice of Court agreement in favour of England made in accordance with article 4 of the Maintenance Regulation. The Regulation made it possible to agree exclusive jurisdiction for spousal maintenance and this has been used in many a nuptial agreement, but the EU has indicated that such agreements in favour of England won't be respected under EU law in proceedings begun after 11pm on 31 December. It may likewise be important to issue equivalent proceedings before 31 December in another EU jurisdiction if the agreement in question opts for that jurisdiction for maintenance issues. 

4. Do consider issuing an application under Part III in England before 11pm on 31 December if your client needs an English pension sharing order to implement the order of a foreign divorce Court in relation to pensions yet none of the traditional Part III jurisdictional grounds apply. The Maintenance Regulation became an alternative ground of jurisdiction in Part III and in such cases the Courts have accepted that its backstop "forum necessitatis" article allowed the English Court to make pension sharing orders under Part III if no other route to achieving the same was available. This applies to orders made by foreign Courts around the world, not just in the EU.

Merry Christmas!