Brexit and family law – what will happen to divorce, financial proceedings, prenups and cases involving children?
Another interesting storyline from this week is that of Jack and Misty Brodeur. We meet Misty as she is finalising her divorce petition, still clearly hurt by what she perceives as Jack’s betrayal in using their own personal lives as a basis for his most recent book. Jack begs Misty to go back to Paris for “one more night” – we initially assume for one last attempt at saving their marriage. Misty ends up agreeing, asking her solicitor Hannah to return her marriage certificate and leaving the office with hopes of a romantic reconciliation in la belle Paris. Unfortunately, in heart-breaking fashion we see the penny finally drop for Misty after Hannah’s dramatic sprint to St Pancras to let her know that Jack’s French lawyer was preparing to imminently lodge a divorce petition in France. She returns the marriage certificate to Hannah who we assume files the petition in London that afternoon.
The reason for the urgency in Misty’s case is a simple one – provided Misty and Jack meet the criteria to file for divorce in both England and France (which we assume they do),as the law currently stands, if Jack were to file for divorce in Paris before Misty filed in England, the French courts would deal with their divorce. This is colloquially known as a “jurisdiction race”.
The consequences of this can be significant for the financially weaker spouse, presumably Misty. Despite only being a short hop across the Channel, England and France have significantly different processes which can lead to very different outcomes for a divorcing couple. For example, financial disclosure obligations are far more onerous in England than in France. In England, each spouse has to provide not only a summary of their current financial position, but also supporting documentation including 12 months’ worth of bank statements, investment, property and pension valuations, tax returns and pay slips. In France, there is no such obligation (albeit a spouse can ask for any documents that they think pertinent). England (and more specifically London) is known as one of the most generous jurisdictions in the world for the financially weaker spouse, both due to the general principle of sharing the assets that have been built up during the marriage and also the judges’ wide discretion to ensure that the financial needs of the financially weaker spouse are met. While not applicable in the case of Jack and Misty, it is worth noting that couples who marry in France elect one of several French matrimonial regimes to apply in the event of a future divorce, and some of these can be very disadvantageous for the financially weaker spouse (see here for more information).
Accordingly, where couples have a choice of jurisdiction, the financially stronger party will usually race to file their divorce petition in the French court and the financially weaker spouse in the English court. It is therefore vital for lawyers to check whether a client, or their spouse, has any international connections from the outset.
The reality of Misty’s situation is less potentially catastrophic than it initially appears. If a spouse needs to issue divorce proceedings urgently in order to secure jurisdiction, it is possible to file for divorce without a copy of the marriage certificate. This allows a spouse to seize jurisdiction even if their husband or wife has taken the marriage certificate.
Jurisdiction races can genuinely come down to a matter of minutes and those minutes can mean the difference between, for example, a spouse receiving a 50% share of the matrimonial pot in England and spousal maintenance or a significantly smaller percentage and less or no spousal maintenance in another jurisdiction. The importance of advice from lawyers (potentially in both jurisdictions) well versed in international cases cannot be underestimated.
With the Brexit transitional period set to come to an end at the start of next year, it is likely to be the case that these so called ‘races to court’ become a thing of the past. Instead, we could have a system whereby parties issue in two separate jurisdictions and arguments will be heard about which jurisdiction is deemed more ‘suitable’ to hear the matter (as opposed to whoever gets there first in time). Arguments about suitability of jurisdiction itself opens up a separate can of worms and Misty would certainly need to ascertain her chances of success with this new criteria - for now, the countdown is on to say au revoir to the ‘Eurostar divorce’…
If you would like to speak to a member of our family team about any of the issues raised in this blog or through storylines featured in The Split, please contact a member of our team or call us on +44 (0)20 7814 1200. Alternatively, click here to get started online and find out where you stand.
You may also be interested in reading our previous blogs with our reflections on the first series of The Split.
Connie Atkinson, a Senior Associate in our family and divorce team, has been one of the legal advisers on the script of The Split, series 1 and 2.
Colleen Hall is an Associate in the Family & Divorce team. She works on a wide range of private family matters, including divorce, matters relating to children (including relocation and contact arrangements) and financial disputes. She has particular experience in Anglo French financial disputes and she has a working knowledge of spoken and written French.
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