I would caution that these changes will only come into place if there is a "no deal" Brexit. If Brexit is delayed past 31 October, or if a withdrawal deal is reached, then it is likely that the current arrangements (that is, the existing EU law) will continue in place. However, on the premise of a "no deal" Brexit, I've set out a number of things which separating couples might want to think through:
1. Can I divorce in Scotland?
For international clients in particular, often the first question put to me is "where can I divorce?". This is particularly the case if that person considers Scotland to be their true "home", even though they are living elsewhere.
The current rules about where divorce proceedings can be brought are set in a combination of UK law, and a European Regulation. After a "no deal" Brexit, the EU Regulation dealing with this will fall away. The Scottish Government has instead proposed two different "connecting factors" for a couple who wish to divorce in the Scottish Courts. These are: that one of the spouses must be "domiciled" in Scotland; or one of the spouses must have been habitually resident in Scotland for the period of 12 months before starting the divorce case. "Domicile" is a legal term, which frequently means the country where you were born and brought up, if you intend to return there, even if living elsewhere.
One problem for expat couples is that although under the current rules they might be able to divorce in the Scottish Courts (e.g. if one of them is "domiciled" in Scotland), the Scottish Court might be limited as to what orders they can make about spousal maintenance. This is due to the particular way that another EU law (the EU Maintenance Regulation) is framed. That EU Regulation will also fall away on a "no deal" Brexit and so if you can bring divorce proceedings in a Scottish Court, the Scottish Court will be able to deal with all your financial issues, including spousal maintenance.
2. Can I move my divorce from a foreign Court to Scotland?
Under the current rules, if divorce proceedings are started in the Court of one EU country, that Court has to deal with the divorce, even if the other spouse feels that the parties' marriage and their lives have a much closer connection to a different EU country. If divorce proceedings are raised in a particular country first, that Court 'wins'.
Again, that rule will fall away on a "no deal" Brexit. There will be room for more discretion as to which Court is best - although in some circumstances, it may still be very important to get in first, and so you should seek advice at an early stage if you have links to more than one country. The downside of this change is that it might lead to more expensive arguments over which Court is best, rather than focusing on the main issue of resolving what happens to the parties' finances and children.
3. Will France (or Spain, or Germany) recognise my divorce?
At the moment, there is automatic recognition throughout the EU of divorces granted by the Courts of any other EU member State. Again, that automatic recognition will fall away on a "no deal" Brexit. There are other international rules which will come into force for some EU countries, which will again allow for automatic recognition. However, if you have links to more than one EU country, and so it may be important for your divorce to be recognised in that other country, you would be best placed to get early advice from lawyers specialising in international family law, in both or all of the countries involved, in order to ensure that this doesn't give rise to problems in the future.
These are just three of the potential changes which are going to affect family law if Brexit does take place on 31 October (or any later date). There are a number of other issues which I've not dealt with in this article. However, if you think this is an area in which you might need advice, please do not hesitate to contact me.
https://www.lawscot.org.uk/research-and-policy/international-work/brexit/
