Rachael Kelsey: Jurisdiction in the UK in divorce and cohabitation cases post-Brexit



Rachael Kelsey

There are advantages to having a bit of age on you when you’re a family lawyer – quite apart from the fact that you are less likely to be trying to home school your own children. If you are 40 plus you will remember family law pre-Brussels II, which is going to be useful in this post-Brexit landscape. There are significant changes to family law jurisdiction rules and this piece will look at divorce jurisdiction in Scotland and touch on the position in England and Wales. Jurisdiction in maintenance will be a treat for another day…

Pre March 2005

Before Brussels II (as it was then) came into force in March 2005, the Scottish courts had jurisdiction to deal with a divorce:
if either of the parties

(a) was domiciled in Scotland on the date when the action was begun; or
(b) was habitually resident in Scotland throughout the period of one year ending with the date on which the action begun (with an additional residence requirement for Sheriff Court proceedings).

Even after Brussels II, these continued to be the jurisdictional grounds for ‘excluded actions’, which were those actions where there was no other EU member state involved.

Brussels II came into force in 2005 and changed the jurisdictional rules for all, bar ‘excluded’, matters. Brussels II harmonised jurisdiction rules within the EU, but also within the UK – so Scots law and the law of England and Wales was the same.

Post-January 2021

From the end of the transition period, 11pm on 31st December 2020, jurisdiction in divorce matters has changed. In particular, Scotland has now diverged from England and Wales. Brussels IIa (as it became) has been revoked. In Scotland we have gone back to ‘Brussels II ante’ – so the rules set out above now apply again in all, not just ‘excluded’, actions.

In England and Wales, in contrast, they have stayed with the EU framework, with some tweaks. They have retained the familiar Brussels IIa grounds, with the exception of doing away with the ‘joint application’ basis (which is perhaps a bit odd, as they are going to have to put that back in when their ‘no-fault’ divorce provisions are brought into force. But, at the moment, everything is a bit odd, let’s face it) and have added in domicile of either party. Really good guidance from the Ministry of Justice on the position in England and Wales can be found here.

Does it matter if divorce jurisdiction is different north and south of the border?

It will do in some cases, particularly where the parties do not have a UK domicile (or where only one of them does) and where there has been less than 12 months habitual residence in the relevant part of the UK.

The intra-UK rules in competing divorce cases have not changed – so in many cases, things won’t change and where the couple last resided together will remain the determining factor. But, that only applies (i) where there are competing proceedings and (ii) where the couple last resided together within the UK. Now that we have the English courts having wider jurisdictional grounds than the Scottish courts, there will be cases where there can be no competing proceedings for a period of time, in way that was not the case before.

So, take an example: Jane and John both have non-UK domiciles. They last lived together in, say, NYC. They separated on 1st December 2020 when Jane came to Edinburgh and John moved to London. Jane can raise proceedings against John in England and Wales now (because he is habitually resident there, which is within their post-Brexit jurisdictional rules). However, unlike the position under the old rules, John can’t raise against Jane in Scotland until the beginning of December this year (because we no longer have jurisdiction on the basis that the other party is habitually resident here).

So, at the point at which John can raise in Scotland the English action will have been going for almost a year. In that situation, when the couple last lived together outwith the UK, it is the ‘balance of convenience (including fairness)’ test as to whether a case should be stayed. The English action will be nearly a year further advanced, perhaps even with decree nisi having been granted, so persuading the English courts to stay will be an uphill struggle, one would imagine.

And there will be other, less obvious, situations where the changes to divorce jurisdiction will have an impact – like in cohabitation (splitting up) claims. The jurisdiction of the Scottish courts in cohabitation claims follows divorce jurisdiction – the court has jurisdiction if it would have had jurisdiction to hear an action of divorce, had the couple been married.

So, if John and Jane had been unmarried: if John wanted to raise a claim against Jane, he could have done so under the old rules – again because Jane was habitually resident in Scotland. But now, he can’t raise until Jane has been habitually resident here for 12 months. By which time, he is out of time for the cohabitation claim (or on a knife-edge – the niceties of ‘an application shall be made not later than one year after the day on which the cohabitants cease to cohabit’ are for another time).

Unfortunately, there is no imminent prospect of a Keeling Schedule/Update on www.legislation.gov.uk of the acts that are amended by the 15 Brexit UK statutory instruments (some of which ‘fix’ errors and omissions in earlier SIs) and four Scottish statutory instruments that are relevant.

2021 – you are spoiling us already…

Rachael Kelsey is a partner at SKO Family Law Specialists. She is the only Scottish member of a small group of family lawyers working in consultation with the Ministry of Justice considering reforms to legislation required arising from Brexit.