14 May 2020
Lockdown and Brexit may shake up divorce rules
As week eight of lockdown approaches, families and children have been trapped together and apart in unexpected locations.
Being trapped creates tensions leading to divorce. For couples trapped in England — the so-called divorce capital of the world — that may lead to unexpected consequences. Given that the UK is about to introduce quarantine for everyone for many parts of the world, including British citizens returning to the UK, it looks as if more people will be staying put.
That is likely to mean that a stay in England, or in a second home in England, may be construed as the main home, giving the English courts’ jurisdiction for divorce.
And there is the issue of disputes between parents over children. Any stay in England, however short, is sufficient to enable the English courts to decide disputes about children where the court considers that the immediate exercise of its powers is necessary for the child’s protection. Physical presence in England is enough.
In a recent case, a wealthy mother bundled her children onto a private jet in the dead of night to fly to their home country to avoid the father commencing proceedings in the English court.
Add to that, Brexit, which in the present crisis seems a mere glimmer in the past, yet still makes an impact. The UK may have left the bloc but EU regulations still apply until the end of the year.
That means that the rigid “first to file wins rule” applies in respect of divorce jurisdiction with the EU. With the government taking a tough line towards Brussels negotiators, we must assume those rules will end on December 31. Therefore, anyone wanting to secure or avoid English court jurisdiction for divorce must do so soon to avoid being locked out or locked in the English jurisdiction.
This applies especially for wealthy French or Italians living in London, where the outcome for the economically weaker spouse receives a lot less money in their home jurisdiction.
From the beginning of next year, those second to file for a divorce in England where an EU country has jurisdiction may still win the race, but they risk a blocking of proceedings on grounds of “inconvenient forum”.
As Lord Justice Thorpe once said: “The couple that first litigates where to litigate might be said to be cursed. In reality it is a curse restricted to the rich”.