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Divorce and residency post Brexit

Britain’s departure from the European Union could have an impact on your divorce. Here is our quick guide covering the key points.

If you were divorced in the UK before the 31 December 2020 or if your divorce proceedings started before this date then your divorce is recognised in all EU member states. If your divorce proceedings began on or after 1 January 2021 then some EU states may not recognise your divorce so you should obtain a Certificate of Recognition as soon as possible, especially if you want to live or work in one of these countries in the future. This currently means the 15 EU countries such as France, Spain and Ireland who have not signed the 1970 Hague Convention on the Recognition of Divorces and Legal Separations may not recognise the divorce.

Child contact orders both finalised and ongoing before 31 December 2020 will not change however for those that begin after this date, the Hague Convention will now apply. You may need to take specialist legal advice in the EU country where the order will be enforceable.

The UK has passed a law to recognise domestic violence orders from EU member states however the EU has not yet passed a law to recognise orders made in the UK. This is clearly going to be worry for many victims of domestic violence.

If you have a prenuptial agreement which was made before 31 December 2020 then the UK courts should honour it, but at the moment it isn’t clear if EU countries will do the same. Going forwards any prenuptial agreements signed after this date may not be recognised by Courts in England and Wales or in the EU if they were made outside of that country.

Financial orders which were made or applied for before 31 December 2020 will still be enforced but for those concluded after this date, you might need to access legal advice in the country where the order will be enforced. Prior to 31 December 2020, the EU rules on domicile applied which meant maintenance couldn’t be claimed where a divorce petition was based on sole domicile. This restriction no longer applies in England and Wales and there may be implications for the enforcement of maintenance orders in the EU.

There is currently a gap in legislation covering a pension sharing order for an English pension. This will affect someone who has a spouse with an English pension (or one themselves) and they live outside of the UK.

Regardless of whether you are married or divorced, the free movement of people between the UK and other EU countries has now ended. If you entered the UK before 11pm on 31 December 2020 you can make an application to live and work in the UK before 30 June 2021. If you already have Permanent Residence it is likely that you will also still need to apply for settled status. You can apply for settled status if you meet the requirements which includes having lived in the UK for a continuous period of five years. If you have lived in the UK for less than five years you should apply for pre-settled status and after the five-year period apply for settled status. Specialist advice should be sought on all immigration issues.

The changes which Brexit now bring may have an impact on how you live your life now or how and where you plan to in the future and we would be happy to provide guidance to enable you to make the best decisions for you and your family.

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