Brexit : when was it ?
UK voted in favour of Brexit in June 2016 (51,9% for Brexit and 48,1% to remain). In March 2019, UK actioned article 50 of the UE treaty and the date for exit was set to 31 January 2020. We were grateful to have a transitionary period between 31 January 2020 and 31st December 2020 so we could continue using all the European Regulations for an extra year.
Today’s situation
Since 1st January 2021 we apply French law or we apply English law and this is a nightmare for clients as the proceedings are more complex and more expensive. Let’s take in concreto few examples: the issue of jurisdiction, the issue of recognition of English divorces in France and the enforcement of English children order in France.
Issue of jurisdiction
Since 1st January 2021, there is no longer “jurisdiction race” stricto sensus because litis pendens rules cannot be opposed to the English Judge. Let’s take an example of a French family living in England. The French husband files a divorce application in France based on the joint nationality of the spouses in accordance with BII ter regulation. He acts first in time. The French judge will hear the case and will confirm he or she has jurisdiction. A few weeks later the French wife filed a divorce application in England based on the habitual residence of the spouses in accordance with the Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. The French husband cannot submit to the English court that it must dismiss the case because it has been seized second in time. No, this is no longer possible. Since Brexit, the English courts have refreshed an old principle that is “forum conveniens”. Even if the English court is seized second in time, it can decide to hear and rule on the matter if the court decides that England is the most appropriate forum because the family lives there, because the earnings are in England because the children go to school in England…this is a discretionary exercise for the English judge.
The conclusion is that post Brexit legal fees have increased enormously as some clients will be advised to run to cases in two countries and seek a jurisdiction hearing that is very expensive.in England the jurisdiction hearing will be listed for at least one full day.
Recognition of English final orders of divorce in France
We know that it is compulsory to register your English divorce in France if you are a French national and we have already written about this topic. Before Brexit, the process was quite simple. We would complete the European Certificate art 39 (or D180), send it to Bury St Edmunds court for sealing. With the sealed certificate together with a certified translation of the final order we would ask the French town hall of the celebration of the marriage to register the divorce and insert a mention on the marriage certificate and also on the birth certificate.
Since Brexit the process is more complex and takes for ever! Now we need to have a certified translation of the divorce application, conditional divorce and also final divorce. We need to file an application in front of the French Prosecutor of the Court connected to the town of the celebration of marriage to relate where each spouse was habitually resident at the time of filing the divorce application and to motivate the request for recognition of the order in France. At the moment the process last for almost a year in Paris and also in Nantes. This means that French nationals cannot remarry if their divorce has not been registered first.
Enforcement of English orders in France
It was very easy to assist clients when they had for example an order of special guardianship in England. The English judge was sometimes sealing the European Certificate at the end of the hearing. We used to file application for recognition in France with a certified translation of the English order together with the European certificate. The process was unilaterally and a fresh French order was obtained within a few weeks or months.
Since Brexit, we use The Hague convention dated 19 October 1996 on recognition and applicable law. The process takes longer time. It is not possible to immediately enforce an English order in France. The Hague convention does not provide for any certificate to be completed by the English court and it is often the case that the French court will list the application for recognition as exequatur proceedings.
Brexit has complexified our proceedings in the family court and this is damageable for the clients.