The potential impact of Brexit on divorce

Parliament and the courts should seize the opportunity to make their own rules on jurisdiction, writes Lara Myers

A majority of the British public has voted to leave the EU. Putting aside the potential impact to our economy and immigration levels, what does this mean for jurisdiction and divorce in the EU?

Under EU regulation (Brussels II Revised), where a married couple has links to different EU member states, proceedings will take place in the country where the divorce petition is first issued. This is regardless of whether that country is the place to which the parties are most closely connected. And so commences the infamous 'jurisdiction race'.

This 'first in time' rule has meant that, when necessary, family lawyers must act swiftly (and sometimes covertly) to secure the most favourable jurisdiction for their client. The country in which a divorce takes place can make a huge difference to the financial outcome of a case, especially where the parties are not of equal financial standing.

Some would argue that the first in time rule has had a positive impact - it is simple, creates certainty, and prevents litigation about which country should have jurisdiction to deal with the divorce. Others would say, however, that this arbitrary rule can lead to injustice and unfairness.

Take Klaus and Claudia, for example. Klaus was born in Germany and moved to London ten years ago with his wife Claudia, who was also born in Germany. They have two children aged seven and nine. Klaus's and Claudia's lives are based in London; they own property and other financial investments here, they are resident here for UK tax purposes, and their children attend primary school here.

Yet Klaus, upon advice from his lawyer, decides to issue divorce proceedings in Germany before Claudia even has a chance to seek legal advice (or indeed perhaps is even aware that Klaus intends to file for divorce). He is able to issue the petition in Germany as both he and his wife are German nationals.

Under the first in time provision there is nothing Claudia can do about the divorce proceedings taking place in Germany. In fact, if Claudia then tried to issue proceedings in England, the English court would be forced to stay its proceedings.

Klaus earns a substantial income as a banker and has a sizeable pension pot. Claudia sacrificed her career as a high-earning corporate solicitor in the city to bring up the children, but has now been out of the field for some time and may find it difficult to return to work at the same level as before.

If the financial proceedings had taken place in London, Claudia would have had a strong case for receiving long-term spousal maintenance. Her financial award may have even included an element of compensation as a result of giving up a lucrative career. She may also have received a large share of Klaus's pension.

The outcome for Claudia in Germany is likely to be very different, most notably in relation to her receiving limited and short-term spousal maintenance.

It is examples like this that seem impossible to justify. Even the very best barrister would find it difficult to contend that in the above case the divorce proceedings should take place in Germany given the parties, their children, and the matrimonial assets are based in the UK.

So what now? The implications of the UK leaving the EU are, of course, still unknown. Whether we will continue to be part of the Brussels II Revised framework remains to be seen. There is also the added complication that 16 member states (not including the UK) have opted in to 'Rome III', which allows for one member to apply the law of another member state, subject to certain provisos.

Parliament and the English courts should seize this opportunity to make their own rules on jurisdiction. Currently, where a jurisdiction dispute arises in respect of a non-EU country, the English court applies the forum non conveniens (most convenient forum) test. The court, after considering all the circumstances of the case, has discretion to stay proceedings if it is thought that it is not the most appropriate forum for the case to be heard.

Applying this rule to countries within the EU would bring an end to the harsh and often unjust first in time rule. Indeed, that is how forum disputes were dealt with before Brussels II came into force. Would this ultimately lead to a fairer outcome?

Of course nothing is set to change immediately, but given the ever-growing number of international families that move freely throughout the EU, this is an area of law that we should keep a firm eye on.

Lara Myers is a family solicitor at Gordon Dadds @GordonDadds