Brexit's impact on international family law

On June 23, 2016, the United Kingdom voted 52% to 48% to leave the European Union.  While the actual logistics concerning “Brexit” will take years to complete, already family law practitioners are struggling with the future of family law in the U.K.

Generally, the first question that courts must answer is whether it has proper jurisdiction to accept a divorce case.  In the United States, different states have different litmus tests as to whether that state has jurisdiction over that divorce case.  For example, some states require that the petitioner must have resided in that state for at least 6 months while in other states, that time period is 1 year.  When a child is involved, almost all states look to the Uniform Child Custody Jurisdiction and Enforcement Act to determine which state has jurisdiction depending on the “home state” of the child.

At its core, the U.K.’s requirements regarding jurisdiction are quite similar and generally pertain to one’s residency or domicile.  The rules regarding jurisdiction are governed by a European Union regulation – sometimes known as the Brussels IIa or Brussels II bis – which applies in all Member States except Denmark.  The regulation identifies seven grounds of jurisdiction for divorce in courts of the Member State, as follows:

a. their habitual residence, or

b. their last habitual residence if one of them still resides there, or

c. the habitual residence of either spouse in case of a joint application, or

d. the habitual residence of the respondent, or

e. the habitual residence of the applicant, provided that he or she has resided there for at least one year before making the application, or

f. the habitual residence of the applicant, provided that he or she has resided there for at least six months before making the application and he or she is a national of that Member State, or

g. their common nationality.

One of the central tenets of the E.U. was the freedom of movement among Member States, which is why a spouse could hypothetically find herself a national of Member State A but having to file in Member State B where her habitual residence is located.

There are several other complicated provisions that make up Brussels IIa / Brussels II bis, but the point is clear:  with Brexit looming on the horizon and the U.K.’s decision to disentangle itself from the E.U., it is unclear whether this regulation will be adopted as law by the U.K. or whether it will establish new rules concerning divorce.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.