At 11pm on 31 December 2020 we lose our membership of the EU and with it the “first in time” rule both loved and hated by family lawyers. Put simply the rule provides that where there are competing petitions for divorce in two members states (assuming jurisdictional requirements are met) the first to court wins.
London has long been hailed 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 case. As ever with a blunt rule, it has its potential disadvantages but it does at least bring with it certainty and clarity (in most cases).
When we leave the EU we will lose this piece of EU law and will fallback on the forum conveniens approach which gives more careful consideration to the facts of the case to determine which is the most appropriate forum. It might produce a fairer result but it also has 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; hence the rush to court signaled in this article.
Similarly, other EU legislation concerning the recognition and enforcement of divorces between member states will also be lost with Brexit, so further increasing the rush to file proceedings before the end of this year.
England’s family courts are 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