In view of this change, it should be borne in mind that the assessment and interpretation of this connection may vary from country to country and that although many understand domicile as the point of closest connection, not all countries interpret the legal concept of domicile in the same way.

In this respect, both the EU and the UK will respect the choice of court made by couples by means of a prenuptial agreement dated prior to 31 December 2020. However, at this stage, this is not guaranteed for agreements entered into after that date.

Finally, as regards to the recognition of divorce decrees in countries other than the country of origin, those issued in proceedings initiated before 31 December 2020 will continue to be recognised. However, with the end of the transitional period and the Withdrawal Agreement that establishes that the UK is no longer part of the Brussels II bis Regulation, it will be necessary to take into account the rest of the conventions that remain in force in this regard and the bilateral agreements and different national rules of the countries in which recognition is sought.

For instance, the UK and 12 members of the EU, which include Italy, Poland and Portugal, are parties of the Convention on the Recognition of Divorces and Legal Separations of 1 June 1970. However, this is not the case of countries like Spain, France or Greece where in order to seek recognition of a divorce decree issued in the UK, it will be necessary to resort to their existing bilateral agreements or to their national regulations. Thus, in the case of Spain, as there is no agreement on this matter, it will be necessary to resort to the application of its Law 29/2015 on International Legal Cooperation in Civil Matters and initiate a procedure known as exequatur.

Although this is the current scenario, as we find ourselves in a globalized world in which these situations are occurring more often than ever, it would not be surprising to see more changes and an increase in the number of agreements between EU countries and UK.

Written by Eugenia Pagán Sánchez.

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For all those European citizens who had their residence in the UK before January 1st, 2021, they have the option of applying for pre-settle status under the EU Settlement Scheme (EUSS) until June 30rd, 2021, to get the same rights that British nationals have, including the situation discussed here about marrying or registering as civil partners.

Visa for marriage

On the contrary, for those other Europeans who wish to visit the UK for the purposes of getting married or registering as civil partners after December 31st, 2020, they must apply for a marriage visa or the "marriage visitor visa"₂ provided that the following requirements are met:

1. Have reached the age of majority of 18 years,
2. Have sufficient financial availability to meet the expenses of stay and departure from the UK - avoiding the start of any work activity in the country,
3. Demonstrate it is a genuine relationship, that is, true, to avoid possible fraudulent marriages or civil unions within the British territory.

This visa only allows to the parties to obtain a short period of legal stay to get married and take place the ceremony on British territory. Therefore, it does not allow obtaining residence after being married, much less extending it, changing it to a different visa while the party is in the UK, living for a long period through frequent visits or carrying out prohibited activities such as studying or working (except for activities related to the work or business abroad, such as attending meetings, which are allowed).

However, there is the option of applying for other types of visas when the interested parties are outside the UK after having contracted marriage or registered a civil partners, such as the “family visas”₃. For applying, both members of the marriage or couple must be of legal age. In addition, the partner of the member who requests the visa must either: obtain British or Irish nationality, or be already established in the UK, or be from the European Union and have been granted "pre-settle status", or other circumstances such as having a Turkish business visa or having a refugee or humanitarian protection status in the UK.

One of the situations that occurs in a ceremony is the invitation of family and friends. In this sense, the "marriage visitor visa" does not allow any guest or family member to be added in the same visa, even those family members considered dependents; accordingly, all of them must apply another visa individually.

Finally, due to the special regime of Gibraltar after the agreement between Spain and the UK on this British colony, it is not necessary for Spanish nationals - as well as any European national - to apply a visa to marry or register as civil partners₄. The parties will only have to attend to the requirements and provide the required documents necessary of the corresponding body in all the phases to carry out the procedures and formalization of the marriage or as civil partners as well as the measures established for reasons of Covid-19.

Written by Paloma Gómez Pachón.

₁ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/929512/CCS001_CCS1020373376-001_Statement_of_changes_in_Immigration_Rules__HC_813_Web_Accessible__1_.pdf

₂ https://www.gov.uk/marriage-visa/eligibility

₃ https://www.gov.uk/uk-family-visa/partner-spouse

₄ https://www.gibraltar.gov.gi/uploads/files/marriages-civil-partnerships/MARRIAGE-GUIDANCE-NOTES-APRIL-2021.pdf

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Same-sex marriage is already legal in 30 countries around the world, and a dozen states allow same-sex civil unions, with rights equal to or similar to those of marriage, but without that name.

Europe is the continent with the highest number (sixteen) of states that allow same-sex marriage. The EU has been a pioneer in recognition and protection of LGBT+ rights, the EU Charter of Fundamental Rights (EUCFR) prohibits in its 21st article, discrimination on the grounds of sexual orientation. Furthermore the Directive  2000/78 requires EU Member States to promulgate legislation which prohibits discrimination on this ground but only in the area of employment; and Article 10 and 19 TFEU introduce the Unions aim to combat discrimination based, amongst others, on sexual orientation.

The UK officially left the EU on 31 January 2020. However, the UK continues to be treated for many purposes as if it were still an EU member state during the transition period, and most EU law continues to apply to the UK.  But once this period expires and UK’s withdrawal is completed, LGBTQ+ British nationals will lose the rights they enjoyed as Union citizens under EU law. In particular, EU citizenship entitles free movement between EU Member States and to be joined in the host Member State by their close family members. In the recent Coman ruling, the CJEU clarified that EU law requires that (LGBTQ+) Union citizens can be joined in the host Member State by their same-sex spouse, irrespective of whether that State recognises same-sex marriages. Nonetheless, due to the loss of EU citizenship, British nationals who have contracted a same-sex marriage will no longer be covered by the Coman ruling and, thus, they will not be able to rely on EU law in order to require EU Member States that have not opened marriage to same-sex couples to accept their same-sex spouse in their territory.

Furthermore, if there is no change in the EU withdrawal bill, the EU charter will no longer be valid in the UK. Meaning that Brexit will erase the (minimum) EU safeguards applicable to its Member States as these will no longer be binding to the UK.

Therefore, it cannot be excluded that in the future there could be regression in the protection of LGBT+ rights. However, this does not seem likely but as it will be up, solely, to the will of the UK parliament, changes will become bureaucratically easier.

Finally, beyond binding legal instruments, the EU is also a highly-effective soft law actor and by shaping its agenda and creating a policy and normative framework that enhances the position of sexual minorities, it has tangibly improved the social, political and economic position of LGBTQ+ individuals across the Union. As a result of Brexit, LGBTQ+ persons who are resident in the UK are no longer able to benefit from this framework. Moreover, the UK is no longer subject to (soft) supervision through submission of data and UK-based NGOs and academic institutions are no longer eligible to apply for EU funding to support research or other activities which aim to combat discrimination against sexual minorities and/or to raise awareness regarding the matters concerning LGBTQ+ persons.

While the exact consequences of Brexit may be impossible to predict it, can be concluded that there will be no substantial change to LGTBIQ + rights. However, attention will have to be paid to the possible future changes that the British government may make do to its domestic law.

Written by Sara Caselles Gayà

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This type of divorce requires both spouses to agree to divorce, lived separately more than 1 year, non-existence of minor children not emancipated or with judicially determined capacity.

Today is not uncommon to find spouses living separately in different countries, having rebuilt their lives with another person, wishing to divorce so that can re-marriage their current partners.

In this type of situation, it is not easy or convenient, for one or both parties, to move to another country to ratify their decision.

Recently, in Scornik Gerstein Llp, we had a client with such a situation, one of them residing in Spain and the other one abroad and since it is a very recent and interesting topic; we would like to share our vision and experience in this matter.

The divorce deed will contain the spouse will to divorce and will always be accompanied by a Regulatory Agreement by which the existing economic regime will be liquidated.

To get divorce from abroad before two possible options will be considered; either granting a power to act by proxy or giving their personal consent at different times and before different notaries.

We have opted in this case for the second option ... Why?

Because is simpler and cheaper since no proxy is necessary to be appointed. We chose this second option because the only thing that is needed is finding notaries with jurisdiction as per the grantors’ domicile willing to collaborate.

The steps to follow to be able to divorce before two different notaries would be as follows:

1) The parties agree the content of the Regulatory Agreement.

2) One of the parties, from his/her country of residence, grants a Divorce Deed together with the Regulatory Agreement, before a notary of that country and assisted by his/her legal representative.

3) Such deed is legalized so that can be enforced in Spain.    

4) A copy of the Deed is sent to the other party and he/she, assisted by his/her lawyer, signs the same and exact Deed before the second notary public, inducing his/her consent and ratifying the will to divorce by mutual Agreement.

5) The receiving notary will submit both deeds to the civil registry corresponding to annotate the divorce.

The divorce will only take place as from the granting of this second deed, when a notary collects the statements of both spouses and declares the marriage dissolved.

Written by Carmen Garcia.

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