At 11pm on 31 December 2020, the transition period following the UK's departure from the European Union came to an end. Once the transition period ended, the reciprocal application of the EU Regulation n° 2201/2003 (called Brussels II bis) between England and other EU Member States ended. This regulation provided that, where divorce proceedings had been commenced in two separate states, the court seized first in time will rule on the divorce and its financial consequences, historically prompting many jurisdiction races between England and other EU Member States.
As of 1 January, England and Wales will no longer adhere to Brussels II bis Regulation and the other EU countries will no longer treat England and Wales as a Member State. Consequently, the obligation for English courts to defer to French courts if they were seized first and vice versa will no longer be automatic. Timing will no longer be determinative, but rather an examination will be carried out as to which competing jurisdiction the parties have the 'closest connection' with or the 'forum conveniens'.
In France, the general rules of international lis pendens (meaning when the French courts will decline hearing a case if a foreign court was seized first) are set out by the French Civil Procedure Code. These rules apply to non-Member States and give way to more room for interpretation on whether the French courts should defer to a foreign court. For instance, the French courts could question the enforceability in France of an English judgment and decide the matter should be heard through the French legal system. Matters between the English and French courts are likely to be further complicated by changes to the system of divorce in France. Whereas, prior to this year, a spouse could simply submit a unilateral petition, which seized the French court, as of 1 January 2021, spouses will be obliged to seize the courts through an “assignation”, which requires serving the other spouse through a bailiff or equivalent authority and then submitting the served document to court. Determining at which stage during this process the French courts are “seized” has given rise to much debate in France and no clear answer or consensus is currently available.
Melissa Lesson says:
"Whilst Brussels II will apply to all proceedings issued in England prior to the cut off time at the end of last year (even if enforcement or recognition is sought after the transition period ended), for new petitions this will no longer be the case and, as far as the English courts are concerned, it will no longer be a question of who is 'first in time' in any potential race, but rather an examination as to which competing jurisdiction the party(ies) have the 'closest connection' with or 'forum conveniens'. This will clearly be open to debate, argument and interpretation, no doubt leading in contested cases to there being litigation from the outset, with all the costs and aggravation this is likely to cause. Early litigation in England to determine the appropriate forum to commence divorce proceedings is also likely to engender further litigation. Injunctions to prevent one set of competing proceedings continuing (the Hemain injunction of old) may well become the new normal again. A further significant complication of a post Brexit world is that whilst from 1 January 2021, signatories to the 1970 Hague Divorce Convention (France being a notable exception) will continue to automatically recognise an English Order, those EU countries who are not signatories, will apply domestic law and so the practice of dealing with this is likely to vary across the EU.
"The matter is further complicated by the changes to procedure in France, taking effect at the same time, which will make it significantly less clear when the French court is actually seized. Although the question of "first in time" is no longer a crucial one, it may still have some bearing when other factors are finely balanced. Consequently, what was already complex cross-border litigation and was only advised for clients of certain means will most likely become even less attainable for the average client given the litigation costs associated with such uncertainty."