Cross-EU border family law from 1 January 2021: guidance for legal professionals

1. Divorce

1.1 Current law

Jurisdiction

The jurisdiction rules set out in Article 3 of Council Regulation 2201/2003, known as Brussels IIa, have been applied to all cases of mixed sex divorce, legal separation and declarators of nullity of marriage in Scotland whether or not the case has a cross border element.

The jurisdiction rules can mean that parties to a marriage may have standing to seise the court in a number of different member states. Parallel proceedings are avoided by the lis pendens rule in Article 19, requiring the court second seised to sist the proceedings before it.

For dissolution, legal separation or nullity of a civil partnership and divorce, legal separation or nullity of a same sex marriage the Scottish Ministers have made Scottish Statutory Instruments which broadly replicate the jurisdiction rules in Brussels IIa.

For further information, refer to the Brussels IIa Regulation. The Brussels IIa Regulation does not apply to Denmark (see recital 32 of the preamble).

Recognition of orders

Judgments on divorce made in a member state are generally recognised in other member states without any special procedure, under Article 21. This is subject to the exceptions contained in Article 22.

A party seeking or contesting recognition of orders for divorce etc. made in Scotland is required to produce the documents detailed in Article 37 and in particular the Article 39 certificate at Annex I to Brussels IIa.

An interested party (in Scotland or in an EU Member State) can apply for a court order that a judgment on divorce etc. should not be recognised.

1.2 From the end of the transition period

Cases in Scotland

Cases ongoing in Scotland at the end of the transition period

The treatment of cases commenced before the end of the transition period (11pm on 31 December 2020) is governed by Title VI of the Withdrawal Agreement. The Brussels IIa provisions will continue to apply to such cases, and to the recognition and enforcement of judgments delivered in them. This includes judgments delivered, whether before or after the end of the transition period, by a court in an EU member state in proceedings commenced before the end of the transition period, but which have not been enforced in an EU Member State or the United Kingdom respectively before the end of the transition period. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

Jurisdiction

Divorce proceedings ongoing in Scotland at the end of the transition period will continue under the current law and rules of Brussels IIa.

Recognition of orders

Courts in Scotland will continue to recognise divorces granted in EU member states in the same way under Brussels IIa if the recognition proceedings started, or the divorce was granted, before the end of the transition period.

New cases in Scotland after the end of the transition period

Jurisdiction

Brussels IIa will no longer apply to cases in Scotland. As retained EU law, it is revoked and provision made so that jurisdiction in divorce (whether of a mixed sex or same sex marriage) and in dissolution of civil partnership is based on whether either party is domiciled in Scotland when the action is begun or was habitually resident in Scotland for a year ending on that date.

For both same sex divorce and the dissolution of civil partnership, a "jurisdiction of last resort" is retained if the couple entered into their relationship in Scotland; no court has or is recognised as having jurisdiction; and it appears to the Scottish court to be in the interests of justice to assume jurisdiction.

For further information, please refer to The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 [SSI 2019/104] and the accompanying Policy Note.

Recognition of orders

After the end of the transition period, Scotland will recognise divorces granted in EU member states in which proceedings started after the end of the transition period in the same way as currently for orders from non-EU countries. The rules on recognition are to be found in Part II of the Family Law Act 1986 which implemented the 1970 Hague Convention on the recognition of divorce and legal separations.

(The 12 EU member states that are currently party to the 1970 Hague Convention on Divorce Recognition are Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden).

Cases in an EU member state

The treatment of cases commenced before the end of the transition period in EU member states is governed by Title VI of the Withdrawal Agreement. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

New cases in an EU member state after the end of the transition period

The EU Commission has published guidance on civil justice, including family law, as a consequence of the UK's departure from the EU

Recognition of orders

The recognition in an EU member state of a decree of divorce granted in Scotland in proceedings which were started after the end of the transition period will be governed by each member state's national rules of private international law, unless they are party to the 1970 Hague Convention on Divorce Recognition, in which case the rules of that Convention apply, for divorce and separation only. Parties should seek local legal advice.

For further information, parties should refer to the full 1970 Convention.

The approach to the recognition of the divorce of same sex couples and of the dissolution of a civil partnership varies significantly between member states. Parties should seek local legal advice.