Up to the end of December 2020 the jurisdiction rules for cross-border family cases in the UE had been clear and predictable in 28 member States, for almost two decades. The term jurisdiction refers to the ability of the courts in a particular country to deal with a legal issue.
The EU Regulation of 2003 known as “Brussels IIa” set out a list of possible alternative forums for a claim of separation or divorce, or cases involving custody of children, where there is an international or “cross-border” element, for example where spouses or partners or their children are living in two or more different countries. The primary factor in deciding where to file would be the habitual residence of one of the parties which is defined as the place in which they had established the “centre of their interests”.
The list of possible forums is set out in Article 3 of the Regulation sets out the choice depending on the country in which:
— both spouses are habitually resident
— both spouses were last habitually resident, insofar as one of them still resides there
— the respondent is habitually resident
— in the event of a joint application, either of the spouses is habitually resident
— the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made
— the applicant is habitually resident if he or she resided there for at least six months immediately before the
application was made and is either a national of the Member State in question or, in the case of the United
Kingdom and Ireland, has his or her ‘domicile’ there;
Any ongoing family law cases commenced in the EU or in the UK before 31st December 2020 using these Brussels IIa criteria on forum will continue unhindered, as provided by the Brexit withdrawal agreement, and any binding court order or judgment which is issued in these cases will ultimately be recognised by the EU and the UK as before.
However, since January 2021, where a spouse or family or part of that family lives in the UK, which is now considered a “third state” from the point of view of EU law, we are now in the time of post-Brexit unchartered waters which arguably has set claimants back to the jurisdictional confusion of 40 years ago.
Since the end of the Brexit transition period as of 1st January 2021, the UK is no longer party to the Brussels IIa Regulation. Instead the rules of jurisdiction will be determined by the Domicile and Matrimonial Proceedings Act 1973. The UK therefore reverts to the pre-EU “forum conveniens” rules which means the country with the ‘closest connection’ will have jurisdiction in a cross-border family claim.
So for example, a husband resident in the UK who wants to file for divorce from a wife living in Italy would need to prove which is the country with the “closest connection” to the dispute. If he filed in the UK courts this could be open to debate, argument and interpretation by the wife, with all the costs and aggravation this is likely to cause. On the other hand if the husband wanted to file in Italy he could do using the Brussels IIa criteria citing that the wife was habitually resident there. If both parties file at the same time in Italy and the UK there could be duplicated proceedings and litigation over who filed first (which up to now would have been decided by the “lis pendens” rule in the Brussels Regulation). Lis pendens might be harmonised again if the EU permits the UK to rejoin the Lugano Convention.
The UK is also no longer bound by the Maintenance Regulation (EU Regulation no. 4/2009) which also provided a straightforward means to claim and enforce orders for the maintenance of children across EU borders, and which allows couples to (in some circumstances) agree in advance in which court any dispute about maintenance is to be decided.
The EU Commission published a useful guidance in August 2020 anticipating points that may arise in future litigation involving EU states and the UK (click link) in both family law and contractual litigation:
