Since joining the EU the number of International families has increased as a result of cross-border marriages with children growing up with parents from different nationalities.
As a result of the freedom of movement within Europe the EU has implemented various regulations which apply within the UK and govern family law. These relate to jurisdiction, enforcement, divorce, Parental Responsibility, child abduction and maintenance obligations all of which have had a significant impact on the life of British and other families.
As a result of Brexit the number of EU citizens coming to the UK to look for work has more than halved in the year to June 2017, while the number of EU citizens arriving for a definite job has remained similar. More EU citizens are applying to become British citizens but as EU nationals need to be living in the UK for a minimum period before they can be granted UK citizenship, they are likely to have been longer term residents rather than recent arrivals. Recently the number of EU citizens leaving the UK has almost reached the higher level seen during the 2008 recession.
Apart from the potential loss of talent if EU nationals leave the UK, there will be an impact on those nationals who have formed relationships with an English national and started a family in this jurisdiction.
Following the Brexit-divorce the EU family law provisions may cease to apply in the UK and one of the three possible options below could apply:
- We could adopt the provisions set out in the EU instruments in our own domestic law and maintain the reciprocal arrangement between the UK and other member states.
- We could adopt the provisions set out in the EU instruments in our own domestic law but without retaining full reciprocity with the other EU member states at present.
- We could negotiate our own agreement with the EU making provision for family law co-operation between the UK and the EU.
The legal complexities post- Brexit are causing complications and tensions within otherwise happy families due to the uncertainty and the real impact on families and children. Couples who are from different nationalities are presented with greater challenges as follows:-
- The EU regulations govern where divorce proceedings should be issued and are currently determined in accordance with the EU Regulation Brussels IIa, where the court first seized of the proceedings has jurisdiction, this may no longer be the case unless certain EU laws are retained. Following the breakdown of the marriage there could be lengthy and costly disputes where two courts may have jurisdiction to hear the divorce proceedings.
- Currently cases involving the unlawful retention or removal of a child from the jurisdiction are dealt with as a matter of urgency and in any event there is an obligation to deal with cases in 6 weeks, this may no longer apply following the full implementation of Brexit.
- There could be concerns regarding the permanent residence of children, indefinite leave to remain and Immigration issues affecting parents and children.
A balance will need to be struck between retaining beneficial EU laws and ensuring UK citizens are adequately protected. There is likely to be a period of uncertainly whilst the terms of our exit are negotiated, which will have an impact on International families therefore it will be important to seek legal advice where cross-border relationships come to an end.