BONUS EPISODE - Brexit, Divorce and the Ex Pat

Tamsin speaks to Daniel Eames about how Brexit will impact ex pats living in the UK and British ex pats living in the EU, and the things they may want to do before the end of the year.

Daniel is a partner at Michelmores LLP and the current chair of the international committee of Resolution (the national organisation of family law professionals). He is responsible for Resolution's Brexit policy and is in regular dialogue with the Ministry of Justice as to the impact of Brexit on domestic legislation, the English court system and international families.

Transcript

(The transcript has been created by an AI, apologies for any mistakes)

Tamsin Caine 0:06
Hello and welcome to the smart divorce podcast. This podcast is for you if you're thinking of separating already separated or going through divorce. My name is Tamsin Caine and I'm a Chartered Financial Planner will speak to some fantastic specialists who can help you to get through your divorce hopefully amicably and start your new chapter positively. Now over to today's guest Today's guest is Daniel Ames. We talk about how Brexit is going to impact family law for expats, either foreign EU nationals living in the UK, or British nationals living abroad in the EU, and also how the regulations might impact couples where there is one party from the UK, one party from an EU country living internationally outside the either of those countries. The rules and regulations are complicated. So if any of that applies to you, I do recommend that you carry on listening. Hi, I'm delighted to be joined this afternoon by Daniel Ames. Good afternoon, Daniel. Hi, Tamsin. Daniel is their partner at michael moore's LLP, and currently the chair of the International Committee of resolution and just so that any of you who don't know what resolution is, it's the National Organic organisation of Family Law professionals, that's many of us belong to is also responsible for resolutions Brexit policy, and is in regularly regular dialogue with the Ministry of Justice as to the impact of Brexit on domestic legislation, the English court system and international families. And it's this subject that we're going to talk about this afternoon. So having a look at how Brexit is going to impact those who are going through divorce, and who might be applying for divorce post Brexit. So the types of people that were specifically talking about today, Daniel juwanna, just outline that for us to start with.

Unknown Speaker 2:23
So

Daniel Eames 2:26
broadly speaking, the people it affects are those who are married to foreign nationals. So you say, UK citizen, British nationals who are married to foreign nationals. And essentially we're talking about EU nationals in that context. It also affects ex parte so Brits living abroad, it will affect foreign nationals, say, but a French couple living here, it will affect them. And these rules really relate to divorces, financial claims, where one or other person, as I say, of a foreign national or living in this country, those people will be affected. And at the moment, we've got very clear rules in terms of how things are dealt with, it's all governed by the regulations. And from the first of January, the EU regulations will no longer apply. And so there has been discussions about having bespoke agreements. But due to the government's position on the fact that we don't present as a country wants to be dictated to by Brussels, and we're not going to be subject to European laws, the government has decided that we can't have a bespoke agreement because the EU will want everything to be governed by the European Court of Justice. So going forward, all the regulations disappear. They don't apply anymore. And then we are looking at other conventions which are not EU based, they're more broadly based than that.

Tamsin Caine 4:10
Okay, so forth, those people that you've just set out, what's the current position that they are in regarding regarding filing for divorce?

Daniel Eames 4:23
So at the moment, so if we take an example, say, Spanish couples, so if you've got a Spanish couple living here, they could either get divorced in Spain or in England, and it's simply a question of who issues their divorce first, and that will determine which court deals with it. So if one of them goes and issues in Spain after after divorce has been issued in England, then the Spanish court has to stop its proceedings and the English court carries on and deals with all aspects of their divorce and any any financial claims. Or if, if you have a couple who are British nationals living in France, then they have a choice of getting divorced in France or in England. And again, it's a question of who issues first. And if they issue in, in France first, then the French court will deal with it. And so at the moment, people can take advantage of the system. So if it's better for them to deal with this in one country, then they will try and issue fast. And obviously, there are very different outcomes between what happens in England and France, generally speaking, England is the sort of most favourable jurisdiction country to deal with your divorce if you're the financially weaker party, and the systems in continental Europe are very different. Of course, all the systems are different, but But broadly speaking, England is the is the best jurisdiction if you're the financially weaker parties to the party who's not working, who may be relying on maintenance or who, who isn't holding the assets in their name.

Tamsin Caine 6:09
Okay, and what's going to happen? So Brexit comes in first of January 2021. What happens from that point? How will things differ?

Daniel Eames 6:21
Oh, exam, it's a bit of a mess. Tamsin, to be honest with the

Tamsin Caine 6:26
surprise.

Daniel Eames 6:28
As I say, we have a very clear system. And it was never about the dictating how English law is applied, it was just a way of cooperating between two different legal systems. So after the first of January, there's no first in time rule or no strict first in time rules. So going back to our Spanish couple living here, they could either issue in England, or if Spanish law allows them to issue in Spain, which it would because the regulation would still apply to Spain. So they could still issue in either country, but the mechanism for stopping the proceedings is gone. So the Spanish court could carry on with divorce proceedings there and the English court could carry on here. And say you've got the potential for a race to get the divorce. So which court system is quicker? That's one aspect of it. But then you've got issues such as such as recognition. So let's say that, say the English divorce go through fast that the Spanish court could refuse to recognise it. So if you're part of that Spanish capital, and you want to go back to Spain in the future and re marry, the Spanish court may not recognise your divorce, because there's no automatic recognition anymore. There is a separate convention called The Hague Convention, which deals with divorce. And that but that doesn't have rules about priority or whose proceedings take, you know, take priority in that situation. So if you tick the boxes for the Spanish court to recognise your divorce, then fine, but there's no guarantee anymore that it will. And that's the real problem. So you've got that possibility that your divorce won't be recognised your possibility of proceedings in two different countries. So you've got all the additional costs involved, you've got uncertainty, you've got the potential for conflict and decision. And, you know, it's one thing at the moment to have, you need to take advice in both jurisdictions, you might have to do that already. But now you've got the possibility of proceedings in both countries and an additional layer to the procedure in England, because one of the parties in my Spanish example could say, well, I don't think the English court should be dealing with this. I want to have a hearing about whether England's the most appropriate place to deal with this. And so that's an extra layer of costs that wasn't there before.

Tamsin Caine 9:03
So how likely is it that that this for in your example, that if there was a divorce going through the English courts, how likely is it that Spanish court would would just carry on even if they were filed second, and and how likely is it that they would not recognise a divorce that was that was rubber stamped by the English court?

Daniel Eames 9:39
Well, as I say, there are no rules at all. There's nothing to prevent that from happening. So it's, it's highly likely the point about who is fast is still important because under the Spanish local law, they may not recognise a divorce. Save it. The Spanish court is first they may not recognise the English divorce. But as I say, it doesn't work both ways. So on the English side, we are not governed by Who is first? Well, once the new rules come in our, our system is entirely based on which is the most appropriate forum. So we don't care who's fast, we look at, well, what are the connecting factors to England and so the English court won't take any heed of that, and the English court could continue. And obviously, depending on how they're set up financially, the fact that the Spanish court may or may not recognise the English divorce may not matter, because if there's assets here, or there's one of the parties is working, and the other one isn't working, then the English courts order can still be enforced. But it the problem I think, arises when one or other of the parties goes back to their home country, or if that's where the assets are, or that's where they're earning their income, that's where the problem often arises.

Tamsin Caine 11:06
Okay, so it sounds to me as though this will also have an impact for cases where maintenance is going to be required. So what's the current position for those people who are in the positions described? And more be likely to have maintenance order?

Daniel Eames 11:33
Yeah, it is, it's quite technical and hard to get your head around in a way, because the way that the European regulations are set up at the moment, they they treat divorce and maintenance separately. So there's a regulation about the divorce, which I've just explained. But there's also a regulation about maintenance. And the regulations were very similar for divorce and maintenance. But the complication is that one country could deal with the divorce at the moment, and one country could deal with the maintenance. But still, there is certainty in the sense that if so if there's a say we take a British couple living in, in France, if one of them starts to divorce in England, and they also ask the English courts deal with maintenance, if they've gone fast, then the English court will deal with both the divorce and the maintenance. And again, the same rules apply, which is that if they're fast for both the divorce, and the maintenance claim, then if the husband had issued in France, then the French court would have to stop both the divorce proceedings and the related maintenance proceedings. So the rules are, in terms of the regulations very similar. So again, it's first in time, the other court has to stop. But these rules govern which court has jurisdiction, you know, which court takes priority. But as I say, there is the potential currently to have divorce in one country and maintenance in another very rarely happens that way, because most courts will deal with divorce and maintenance at the same time, and the proceedings will be issued at the same time. But sometimes you can have a scenario. So say you're the say you're the an English wife here who's not working, and she's married to a foreign national, and the foreign nationals able to issue proceedings in the other country fast. And so that court deals with the divorce and spousal maintenance. If the children are living here, then the wife can still ask the English court to deal with child maintenance. And that's governed by the regulator. So you can have the potential for divorce and spousal maintenance be dealt with in France, but for child means to be dealt with here. So, so although it's complicated, the rules are clear in the sense that you've got certainty about which court can have jurisdiction and who starts first, but obviously, again, from the first of January, that situation will will mean that there's no clear there are no rules on jurisdiction anymore. So you could have that situation where both can't both countries try and deal with the divorce and both countries try and deal with maintenance. And as I say, you can then have in respect of maintenance, again, conflicting orders, two sets of proceedings, refusal to recognise the other country's orders. So the maintenance issue is, you know, is this the same is the same problem as a divorce that's, you know, the rules that govern these issues will go and so, if, if the French court was dealing with divorce and spousal maintenance And the proceeds in France were fast. And the wife issued divorce proceedings in England and issued a claim for spousal maintenance. The English court can carry on the English court can make the divorce the English court could make a maintenance order against the, against the husband, the French court could do the same. And both countries may ignore the orders of the other. And the additional problem is that, as I say, if the if the husband is in France, the French court if if, if it was first is entitled to ignore the English order and can refuse to recognise it. So you've got all the problems of uncertainty, conflicting decisions, but then you've got to the end of it all. And you've got your order from the English court, and you've got your maintenance order. And the French court says, Well, no, we were fast. We're not going to enforce it.

Tamsin Caine 16:01
Okay, okay. That's it. That's a bit of a mess, isn't it? It's so are there any suggestions about things that could be done by anybody in this position at the moment?

Daniel Eames 16:23
I think it's important, obviously, to take advice, obviously, and to take advice as early as you can, because obviously, your situation will be very different. If you take that action, before the first of January, you will obviously have complete certainty, then in terms of Which country's going to deal with it, and you can have some control over your situation. So I appreciate that we're not far from Christmas, can this provide different Christmas for everybody, then we know we're expecting before but lots of people feel very reluctant to start processes like this before Christmas, because they're, you know, they want to have a last Christmas together that won't upset people, but obviously, it in this this particular time, you know, there could be huge disadvantage in delaying and, and wait, you know, waiting to do something. So I think, you know, for this year, I think it's absolutely essential that people if they are married to a foreign national, if they are living in another jurisdiction, that they take advice and take action, before the first of January, we also there will be some people who would be advanced would be would benefit from the new system. So if we take our x paths as an example, if someone's living in Hong Kong, or something like that, and they're a British National, they're married to a French national, they're not working at the moment. They cannot divorce in England, because the European regulation also applies to someone who's in Hong Kong, bizarrely enough, because it determines whether the English court can take jurisdiction. So at the moment, if another country would potentially have jurisdiction. Now, the European jurisdiction, the English court, cannot take jurisdiction for divorce. And it also cannot take jurisdiction for maintenance. But after the first of January, the English court can actually now take jurisdiction for that particular scenario. So there will be some people who will benefit from delaying. So it's really about just understanding where the advantages and disadvantages are. So if you're in this situation moment, the key is to take advice now and if, obviously, if it's to your advantage to act now, you act now. And obviously, it's your advantage to delay things then you delay it. But it's the key is to take advice and understand how you can improve your position and it's not always the position that you can but I think what what the advantage you have now, is there some certainty about the situation and you can you can take advantage of that now. And any. One thing to be clear about is that any proceedings started before the first of January, even if the order isn't, you know, you don't get your final judgement for another year or so the European regulations will still apply. So your divorce will still be recognised throughout the year if you started your proceedings beforehand, and your maintenance order will also be recognised.

Tamsin Caine 19:44
Okay, so it really is about if you've made the decision to divorce down and you're in this position don't necessarily hold off until the New Year. Okay. Can I just return to the Hong Kong example? Because that really blew my mind and completely confused me. Just from run that by me again. So I've got an English national and a French national living on in Hong Kong, and they currently can't get divorced in England. Is that right? So if I understood that

Daniel Eames 20:27
not it not if another European juristic. Another European court might have jurisdiction but but the most important thing is that the English court cannot make maintenance orders based on one part parties sold on the site, I didn't really explain domiciled domiciles are sort of complicated concept in the sense that it's not necessarily the same thing as nationality, but it usually is. So if you're, if you're a UK, national living in Hong Kong, you don't intend to remain there permanently. And you, you know, your parents were English. And so your domicile of origin is English. Usually, that's the same thing as nationality, then the English court cannot make maintenance orders in that situation. So even if you could get divorced in England, you wouldn't be able to bring your maintenance claim here because you can't bring a maintenance claim in England where you're relying on one person sold on Assad.

Tamsin Caine 21:35
Oh, Crikey. This is just got a whole lot more complicated, hasn't it?

Daniel Eames 21:40
Okay, the whole thing about it was already complicated. and nurse practitioners, it's very frustrating, because when all this came in, it was very alien. It was we weren't used to regulations like this and this type of system, and it took years and years for everybody to get to grips with it. And now we will do broadly and the courts understand it. And so, you know, if you've been practising Family Law, for the last 20 years, you weren't now a different system. This is this is the only system that you would know. And so it's not just, it's not just the people who, who are dealing with this themselves. It's all the professionals, it's the judges, it's the courts, it's the lawyers, it's a completely new system for everyone. And so that adds the uncertainties, there's going to be test cases, there's going to be all sorts of issues that they're going to come up in the next six to 12 months. And, you know, as he sort of said, in your introduction, I'm involved in this, I'm involved in this from an organised organisational perspective. And we will try and explain it to everybody and try and make sure that everybody has a good understanding as it as possible, but it is completely new. So there will be things that we haven't thought about, there will be situations that that people haven't considered yet. And they're always angles and issues for lawyers. But this this is just yeah, this is just a completely different situation than we've all been used to for the last 20 years. And then the other complicated down there, which I haven't even got into is that, depending on the type of maintenance, you're claiming, there are different jurisdictional rules in England now. So if you're claiming spousal maintenance, the jurisdictional rules are different than they are for child maintenance. If you're seeking to vary in order, the rules are going to be different if you're say you're varying an English order where the parties are living abroad. Now, if you're making a financial claim after a foreign divorce, so say there was a divorce and say they were living in Hong Kong at the time, they got divorced there, and the courts in Hong Kong made financial orders at the moment, in theory, you can bring a financial claim in England after the divorce in Hong Kong, but the rules the basis on which you can do that has changed, the grounds for doing that have changed. So all these things are going to be different. And so, you know, it is an absolute minefield. And although I'm someone who has a reasonably good understanding of it, because I've had to because of my sort of organisational role, you know, there will be things that will that will crop up. And we already know there are problems, and we've tried to point them out to the government. And they say that their hands are tied to an extent because they can only change things that flow directly from the loss of regulations. They can't change things that already inherent in the system. So we know there are going to be lots of problems. And I think all we can do is sort of stand back and wait and see what happens and test these things as we go along. But yeah, I mean, it's we tried to persuade the government that It would be in everybody's interest to continue with the regulations to have a bespoke agreement. And that sort of red line of not having the European Court of Justice just blew that out of the water and the government, even though the the, the civil servants understand it, you know, it's just a complete red line. So, you know, this all could have been avoided, but lack of willingness to sort of explore with the public that, you know, this wouldn't be the EU dictating to us, it's different in family law. They just weren't prepared to go down that route.

Tamsin Caine 25:39
Yeah, that's not terribly helpful, then.

Unknown Speaker 25:44
Well,

Tamsin Caine 25:44
we're on the subject of this. What? What's going to be the effect on prenuptial agreements and post nuptial agreements?

Daniel Eames 25:54
Right. So at the moment, you just say that this can just sort of street This is just the EU situation. So this is this is involving England and another EU Member State. At the moment, because of the regulation that I was talking about at the start the divorce regulation, you cannot at the moment decide which country is going to deal with your divorce in advance. So if you were the Spanish couple living here, if you had a Spanish marriage contracts, not quite the same thing as a prenup that you had a Spanish marriage contract or you have a English prenup, you know, they'd had the advice and they came here and they entered into an English prenup, which would obviously be effective here. What you couldn't do is provide in advance which country had jurisdictions if you put a clause in your documents saying, if there's a future divorce, we wanted to be dealt with in Spain, neither the English court nor the Spanish court would have taken any notice of that it would still would have been governed by the regulation. So if you issued first in England, the English court would deal with it. And if you did it in Spain, then the Spanish court would deal then the fact that you try to agree in advance that the divorce should be in Spain, my The court will take any notice of that. That will change after the first of January, so that perhaps there's some good news for people in this situation that if they have done some planning, and they want to try and protect their position, or they want to try and protect their position in the future, they can, in theory, agree which countries should deal with it. And in that situation, when the English courts say you've got the situation I was talking about earlier, where you've got proceedings in both countries, one of the parties could say to the English court, well, hold on, we had a prenuptial agreement that said the divorce be dealt with then in Spain. And when the English court is looking at, which is the most appropriate forum propriate court to deal with there. So you could say, well, actually, even though you're both living here, and you've been living here for years, and you've got assets here, you did agree in advance that you wanted your divorce to be in Spain, and you both had advice. So actually, we're going to agree that the divorce should be dealt with in Spain, because that's what you provided for in advance. So there is definitely potential here for people to agree in advance which countries deal with the divorce. And that's definitely one advantage of this new system. I'll be the only one I can think of but

Tamsin Caine 28:41
do you think that if if you have that pre nuptial agreement that the Spanish court and for they were it said that the bad that you were going to divorce in the English court? Do you think the Spanish code recognise that are we are we only saying that this is what is likely to happen in English court?

Daniel Eames 29:07
I think the Spanish court would take that into account. But But as I, as I said earlier, the Spanish court will still be applying the regulation itself. So the Spanish court will probably so if it was the other way round, so the agreement said it should be dealt with in England. Yes, Spanish court would probably say, Well, no, we've got jurisdiction under the under the divorce regulations to deal with this, and therefore we're going to follow that. So you've still got the potential for two sets of proceedings. But the key is England in all those towns and because people want to avoid England or take advantage of it. So if the English court would have to stop its proceedings, then that will achieve what one of the parties wanted to achieve and also an achieve see The agreement. So it's really about people that people are not very few people are going to enter into a prenup saying, I want my divorce to be dealt with in England. Because if you're the party trying to protect your wealth, there is no way in the world you'd want to sign up. So it's really about those people who want to avoid England, because they're the financially stronger party. They've made it a condition of the marriage that the other person enter into the prenuptial agreement that says that the other country has jurisdiction. And that's what they would want, they would want to try and avoid England. So the moment the parties can agree, which which country deals with maintenance, it's quite unusual for that to happen, but it is possible. So under the existing regulation, you can agree in a prenuptial agreement, which country deals with maintenance in the future. Because the main is regulation doesn't apply if, if the parties had agreed that the English court deals with maintenance, the Spanish court could just ignore that and say, Well, of course, the English court is no longer subject to the maintenance regulation. So we're going to carry on and make our Spanish mate is old. And we know, it doesn't matter that the parties have agreed that maintenance will be dealt with in England, as I said to you, it's unlikely that anybody would have agreed that so even though in theory, the Spanish court would ignore the agreement about maintenance. The reality is that nobody's going to have said it should be dealt with in England. So in the future, if there's an agreement that the Spanish court will deal with maintenance, well, the Spanish court, as I said to you is still applying the maintenance regulations. So it will still give weight to that agreement. But you'll also have the advantage that if one of the parties tries to then bring the maintenance claim in England, the English court has provided in legislation that if that agreement was entered into before the first of January, then effectively we will give weight to that agreement, in effect, you will accept that a Spanish court has jurisdiction. So the position is completely different on divorce, but on maintenance, the loss of the regulation probably won't disadvantage those people who are trying to avoid England. The other example that I would also potentially give is in relation to maintenance claims on behalf of children again, at the moment. There are the there's the the maintenance regulation that deals with that. And going forward. There is potential for, as I say, both countries to deal with child maintenance. And that is going to lead to potentially conflicting decisions. But also it means that those people who may move to England deliberately to try and bring a financial claim on behalf john. So where the parties are unmarried, saying, you know, the father's very wealthy the ability to sort of forum shop in that way that that the main such regulation provide? Well, we'll get out and it would be much more difficult for people to do that.

Tamsin Caine 33:35
Okay, okay. Okay. It's such a minefield this, isn't it. Everything that you've said, seems to lead to the fact that if you're in this position, and you're separated, and thinking that divorces on the cards, you should get some advice pretty quickly. With that, what you would suggest

Daniel Eames 34:01
would be what I suggest, and the problem is that this is a one that we had a sort of unless everything changes, and we we rejoin the EU, which obviously would require another referendum changes of governments, etc. This is going to be the situation for a very long time now. And so you really, if you've got a sort of once in a lifetime might be exaggerating, but I can't see their situation changing. There's not not going to be, you know, a different set of laws and a couple of years time, you know that this is going to be the scenario for quite a long time now. So if you are in a situation now you do need to act quickly. Yeah,

Tamsin Caine 34:50
absolutely. Daniel, thank you so much for that. I know you weren't the bearer of particularly great news, but I think it will be Really useful to a lot of people out there to to understand what they need to do and actually say, get some advice and and act quickly. Thank you for listening to the smart divorce podcast. If you'd like details of our guests today or of myself so you can get in touch, please check out the programme notes. Many thanks See you again soon.