There are only 48 hours before we know whether the UK has decided to come out of the European Union but, if polls are to be believed, there is a real chance that Brexit will become a reality.
What about the effects on those families who plan to separate or divorce in the UK, particularly those who have spouses or family living in another European country or where at least one of them is a foreign national?
We live in a completely different society to the 1970’s when the UK joined the EU. Now, over 25% of children born in the UK have a foreign born mother and in London the percentages are even greater with the top country being Poland. Around 50% of our team’s clients now have substantial international connections and many of them are from other parts of Europe who have been attracted to the opportunities in London and have moved here with their families.
The marked increase in immigration as a result of the expansion of the EU and freedom of movement has become one of the main issues for those considering a ‘leave’ vote. However, when deciding how to vote, people should bear in mind that one can’t turn the clock back and a decision to leave will affect many, many people (English and non-English) who will continue to live in our multi-cultural European society.
While the EU and its enormous bureaucracy is far from perfect, the alternative and its effects on families, particularly children who make up 20% of the EU population, is worrying.
The effect of a Brexit on UK and EU family law
What will happen practically if on Friday 24th June we wake up to a ‘leave’ majority? As we know, under Article 50 of the Treaty of the European Union, the UK government will need to serve a notice of its intention to withdraw, which would give two years to negotiate the terms of the withdrawal. Most commentators consider that, in all likelihood, the time will be extended but, during this transitional period (some say up to ten years), there will be a huge amount of uncertainty about the long term impact, and no doubt much negotiation, rather like a spouse indicating his intention to separate but using a long period of separation to negotiate a financial settlement. But unlike a marital divorce where a decision to reconcile can be made at any time, any decision to withdraw from the EU will be final.
For all families, but particularly the high number of families with substantial foreign connections, the next few years provide huge uncertainty.
EU legislation in terms of family law has had a big impact on the day to day practice of family law. In terms of separating couples we now have:
- The same jurisdiction for divorce throughout the EU - on a positive note it has created certainty, but it has disadvantages with the ‘first to issue’ situation, e.g. if two European, say French nationals, are living in England, both countries have jurisdiction for divorce so that whoever issues divorce first will determine where proceedings can take place . This can lead to injustice and discourage clients from resolving their marriage differences with a counsellor before rushing to issue proceedings. I and other family lawyers have long called for a change to this harsh law (e.g. by bringing in a hierarchy of jurisdictions or enabling a country to transfer divorce proceedings to another)
- Clear rules in relation to where parents or spouses can issue proceedings for maintenance – again giving each EU country the same jurisdiction to issue claims for maintenance and the rules favour the creditor, i.e. the parent (usually the mother or wife) who will be in receipt of the maintenance
- In line with these rules, the maintenance regulation and other EU enforcement measures have meant that the system of enforcing maintenance orders has been simplified and it enables a creditor to enforce orders automatically across borders without having to issue recognition proceedings, all to benefit the financially vulnerable individual
- Clear rules in relation to the removal (abduction) of all children from one European country to another (similar to the Hague Convention)
- The EU provides an important sanction mechanism to ensure EU states comply with certain provisions (e.g. the provision of alternative dispute resolution measures)
With free movement of individuals between states, and with so many children of foreign nationals living across Europe, such rules are essential in today’s Europe. While the system in practice is far from perfect (given the different standards applied by the courts across Europe and some disadvantages as referred to above), it would be a backward step if we come out of the EU and pull out of the current legislation that exists. While supporters of Brexit have pointed to all the other legislation that exists beyond the EU (e.g. the Hague Convention dealing with child abduction) to which the UK is already a signatory, with the high number of EU nationals living across Europe it is absolutely right that we have specific rules for European nationals. And the UK has not been forced to sign up to all EU family law regulations - at the outset it carved out the ability to ‘opt in’ to planned measures which the UK has exercised on a number of occasions (e.g. to opt out of the applicable law provisions to avoid the UK having to apply foreign law in cases going through the British courts). Even if we come out of the EU and free movement is halted, this will not affect the current make up of our populations.
Looking at other implications of coming out of the EU, it is worrying that some Brexit campaigners plan to immediately remove any control of the Court of Justice of the EU (CJEU). For EU individuals, the CJEU provides an important authority to step in when a country’s court or government has got it wrong or to enable the interpretation of legislation. I consider that coming out from the CJEU’s auspices could harm individuals living in the UK, including children who have benefitted directly and indirectly from EU legislation. In her article ‘Not seen, not heard: the implications of Brexit for children’, Professor Helen Stalford highlights all the EU legal provision and initiatives that have protected or assisted children, eg the EU’s directive on combating the sexual abuse and sexual exploitation of children which requires countries to adopt measures to report suspicions and provide information regarding convicted perpetrators available cross nationally. Surely it is right for our children and future generations that we work closely with our neighbours in such cross border initiatives? Coming out of the EU will give a strong isolationist message that is out of step with today’s global society.
On a final note, in cases of marriage breakdown, many studies indicate that children suffer from the on-going conflict arising from a divorce rather than the divorce itself. I have no doubt that, while the EU referendum will happen within only one day, the repercussions of a Brexit win, with its long term uncertainty and conflict (within the UK and internationally), will continue for several years and will affect all UK citizens and residents, including our children and future generations.