Brexit - traps for the unwary Scottish family lawyer

Morton Fraser Partner Lucia Clark
Lucia Clark
19 January 2021

The end of the transition period for Brexit has now past, ending at 11pm on 31 December 2020.  At the last gasp, we also have a trade deal in place with the EU, which covers a multitude of matters, but appears to have no direct reference to family law.  

Many aspects of family law have nevertheless changed, including for cases just involving Scottish couples.  This article will set out, in brief, what we need to know about these changes, and highlight the main traps to avoid. 

Divorce and maintenance jurisdiction will change

After 31 December 2020, jurisdiction for divorce will no longer be determined by the seven possible grounds set out in Art 3 of BIIr (EU Regulation 2201/2003). Instead, the Scottish court will have jurisdiction for divorce and ancillary financial matters if either of the parties to the marriage is (a) domiciled in Scotland on the date when the action has begun; or (b) habitually resident in Scotland throughout the period of one year ending with that date.   It will still be necessary to have 40 days residence in the Sheriffdom on either ground if raising the divorce action in the Sheriff Court.

Jurisdiction for divorce will be different in England, as Westminster has used a tweaked version of the grounds of jurisdiction from Brussels IIr, adding the ground of English domicile of either of the spouses.

The Maintenance Regulation will also not apply going forward.  For divorce cases, jurisdiction for maintenance will go along with jurisdiction for divorce.  For Scottish stand-alone aliment cases, there will be jurisdiction in either (i) the place where the person being sued is domiciled; or (ii) the place where the maintenance creditor is habitually resident or domiciled.

No first past the post - but that doesn't mean being first doesn't matter

In terms of how the Scottish court will deal with things, we will go back to the forum non conveniens test for any conflict of jurisdiction for divorce or maintenance between Scotland and the EU27, for cases commenced from 1 January onwards.

However, being first in time might still be very important, from the perspective of how the courts in the EU27 deal with conflicts involving a non-EU country.  For example, say a couple have lived all their life in Scotland then after separation, one moves to France.  The spouse in France raises divorce proceedings there, and the spouse in Scotland raises competing divorce proceedings here.  The Scottish court may deal with a forum non conveniens argument and conclude that matters should be dealt with in Scotland, taking into account connection to the marriage, location of assets and witnesses etc.  However, how the French court regards the dispute will be a matter for French law -and some continental European countries regard being first in time with proceedings as being a very important or determining factor.  So the French court may simply carry on dealing with the divorce, in parallel to the Scottish court. 

Check if your Scottish divorce will be recognised

For cases started after 31 December 2020, UK divorces will not be automatically recognised any more in the EU27, unless that country is part of the 1970 Hague Convention on Recognition of Divorce.  About half of the EU27 are not currently signed up to this. 

Instead, recognition of a Scottish divorce will be dealt with according to that country's internal laws.  A registration process may be required.  More worryingly, there are some countries who link recognition (or non-recognition) to jurisdictional grounds - so a Scottish divorce may not be recognised if the basis for jurisdiction was the sole domicile of one of the parties.  If it is important that your divorce be recognised in that country, this needs to be considered right at the start of a case, before raising proceedings and before deciding on jurisdictional grounds.  

Check (and check again!) enforcement

For cases started after 31 December 2020 (and cases started before but which settle by agreement rather than a court judgment), enforcement of maintenance will be via a different route - the 2007 Hague Convention rather than the EU Maintenance Regulation.  There are some differences with the Hague Convention which may cause potential enforcement difficulties - you should be aware of these at an early stage (and before embarking on litigation). 

First, of the only basis of jurisdiction available is sole domicile of one of the parties, there may be some difficulties in enforcing maintenance orders under the 2007 Hague Maintenance Convention, as this Convention does not recognise orders based on sole nationality.   "Nationality" and "domicile" may be viewed as different definitions, but there is as yet uncertainty about how a court in the EU27 will regard this.

Second, you should also consider Art 22 of the Hague Convention, which has various restrictions - these may mean you can't enforce abroad if other maintenance proceedings were raised first.

Get to know some European friends

Perhaps conversely, all of the issues set out above will make it more likely that Scottish lawyers will need to liaise with European lawyers, particularly at an early stage, due to the loss of uniform rules of jurisdiction, recognition and enforcement.  We will likely be in touch with our European counterparts more than previously in order to know whether a Scottish divorce will be recognised, whether competing foreign proceedings can be raised, whether sole domicile will cause any problems and whether there might be issues with enforcement. 

In short, the end of the transition period will bring a number of difficult and confusing changes for Scottish family lawyers.  Hopefully the above will assist in navigating those changes successfully.


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