Amid the political soap opera playing out in parliament, it can be easy to forget that Brexit will have real consequences for real families. In particular, the legal landscape for divorcing couples will change significantly in cases where there is a European element. Despite this, few couples seem fully prepared for the turbulence ahead.
At present, where couples have sufficient links to two or more EU countries, divorce and related financial proceedings will take place in the country where legal action is first brought. Critics of this system point to an unseemly “race” between parties to commence proceedings. But the alternative, already used where the second country is outside the EU, is for the courts to have to determine which country is better suited to hear the case. This process usually involves delay and significant legal costs. The outcome is less certain and the reality is that, once outside the EU system, more families will find themselves embroiled in needless and expensive litigation to resolve preliminary disputes.
The changes won’t just affect multinational couples — there will also be difficulties for UK families who hold assets in the EU. Principles of mutual recognition allow decisions of the English court to be easily enforced in other EU countries. While the UK government has indicated an intention to utilise alternative international conventions post-Brexit, these do not provide such strong rights or protections as the present system.
As it stands orders for contact between parents who live in different EU countries and their children can easily be recognised in other EU countries, reducing delay and “red tape”. This may no longer be the case for UK-based families after Brexit, and obtaining enforcement is likely to be slower and more cumbersome. The position is even more serious if one parent is accused of abducting a child. Although the UK will remain bound by international conventions, present EU law provides that there should be a decision on a child’s return within six weeks. Without that provision, there are likely to be additional delays, with potentially devastating consequences for children and their parents.
Despite the serious legal repercussions of Brexit, many families (and, indeed, some lawyers) have adopted a “wait and see” approach — if a deal on Brexit is agreed, the present rules will continue to apply during the transition period (at the time of writing, expected to last until December 2020, with an option to extend). But if there is no deal, parties may face a legal cliff-edge on March 29, 2019. The divorce process can take several months, particularly if the division of assets is not agreed. Even if parties do commence litigation prior to Brexit, to date there has been no agreement from the EU that it would continue to apply the present regime to UK cases that continue afterwards.
Court proceedings tend to be expensive, antagonistic and have negative consequences for any children involved. Avoiding them altogether, if at all possible, is always the best option. But if separating couples don’t at least consider their options at this stage, the risk is that — post Brexit — proceedings will be more drawn out, have less certain outcomes and create even more animosity than they do now.
This article was originally published in The Times (subscription only).