At 11pm on 31 December 2020 we leave the EU and as a result our ability to use the “first in time” rule.
This rule currently provides that where there are competing petitions for divorce in two members states the first to court wins.
London has long been acknowledged as “the divorce capital of the world” and so securing jurisdiction here – or excluding it – can make a very significant difference to the outcome of a divorce.
When we leave the EU at the end of this year, we will lose this piece of EU law and will instead rely on the ‘forum conveniens’ approach which requires the facts of a case to be examined in order to determine which jurisdiction is most appropriate. While it might produce a fairer result it could also increase the potential for much greater debate and so in turn much higher costs.
Consequently, where England is a potential player in the jurisdictional field, it is important to file proceedings before the end of this year to achieve certainty.
England’s family courts are therefore braced for a spike in divorce cases before the end of the Brexit transition as couples try to avoid being locked in protracted and costly international legal battles