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Same sex marriage and jurisdiction of the courts on divorce

Same sex marriage and jurisdiction of the courts on divorce is an issue individuals entering a marriage should consider according to Cheshire family law solicitors Stonehewer Moss. In England at present the issue of jurisdiction in family law disputes is governed in most instances by EU regulations known as Brussels II Revised. If a couple have the potential for a foreign element within a future divorce, for example as they are nationals of different EU countries, the regulations will apply and solicitors are advised to act quickly to secure jurisdiction in the favoured country. In instances were a couple have decided to address future break up before the marriage by entering a pre nup, it is sometimes best to include a jurisdiction clause in the agreement with a choice of law specified for the preferred country. The clause needs to be legally correct to be effective. The recent changes to law in several jurisdictions permitting same sex marriage has not yet been addressed by the application of BIIR, so the advice needed for a pre nup and on separation about jurisdiction is different for same sex couples. This is no doubt a loophole and should not be a real problem but it should be considered in all cases, particularly if considering entering into a pre nup before the marriage. The Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014 provide the English Courts will recognise overseas orders and reject those that are not consistent with an English order, the existence of which only goes to indicate there is a gap in the EU jurisdiction that seems to be papered over rather than conclusively addressed. A same sex couple may have to confront jurisdictional issues in court at present that others need not address. Provided the overseas issue does favour English law, a same sex couple may be best addressing the jurisdiction issue within a pre nup, though a subsequent contest overseas might run into the difficulty that the pre nup is not recognised.

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Stonehewer Moss Solicitors, Citadel House, Solvay Road, Northwich, Cheshire, CW8 4DP

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