Posted on August 30 2016

What does Brexit mean for Divorce? And for International Families?

brexit divorce international families

See February 2019 update, What Does Brexit No Deal Mean For Family Law

International families are those who originate in different member states from where they live now. This applies not only to people living here who were born elsewhere in the EU, but to Brits living in other member states

Important EU Rules that apply to Family Law

There are a handful of EU rules which apply to family law (under a EU regulation often called “Brussels II Revised”). Although not great in number, these rules go deep into our system and have significance for us all. The government will need to decide what to do about these rules.

As I mentioned in my post on Brexit prior to the Referendum, the government will be busy enacting countless laws to fill the vacuum that will be created by leaving the EU. Hopefully they won’t forget about family law.

Later in this post I describe how EU rules affect family law, 
and how these helpful rules might disappear altogether even before we
leave the EU

What are the immediate changes to Family Law?

There are none. Everything carries on as before.

You have to remember that the vast majority of the laws in this country have been made by our own Parliament.

So for example if you are considering divorce you will still need to decide between one of five grounds for divorce as laid down by our very own Matrimonial Causes Act.

And what about disputes over matrimonial finances? Unless you are able to reach an agreement through mediation or collaborative law you might still find your case in the court and that too is determined by the Matrimonial Causes Act.

And if your dispute concerns the children we have our own Children Act which provides that the paramount consideration is the welfare of the children.

Vitally for international families this country is signed up to the Hague Convention and so in the case of child abduction (where a child is removed from England and Wales or is retained after a holiday) an application can be made for an order that the child be returned.

Is our Justice System still fully functioning?

Yes, of course.

There are some issues though. The courts are overwhelmed with people representing themselves now that legal aid is difficult to obtain.

And family law is in need of reform to cut down on the cost and uncertainty of divorce, and to promote equality.

There are those who argue for no fault divorce, clarity on the division of matrimonial finances, binding prenuptial and postnuptial agreements, the extension of civil partnerships to opposite sex couples, rights for cohabitees on the breakdown of relationships or death etc.

With the recent political shakeup we have a new justice secretary
with little experience of the law, and of course the government 
and the civil service will be engrossed in Brexit related issues
for many years to come. You have to wonder whether there will be
much movement on family law reform.

But fundamentally, yes, we have a system that works.

Are you going through Divorce?

If you are already going through divorce then there are no immediate changes.

But if you are contemplating divorce, there are those who say there will be an economic downturn as a result of the Referendum and those who say there will be an improvement. So some couples might decide to delay their divorce to wait and see but it is of course impossible to predict the future.

It may be that couples will delay divorcing if they work in a sector, or have a business in a sector, which is heavily involved in the EU.

I’m beginning to hear stories of families that have experienced strife because they took different sides in the Referendum. Some say it could even cause marriage breakdown.

As I mentioned in my last post, it's sometimes hard to cope with a 
clash of expectations in a relationship. If you can't talk it 
through maybe relationship counselling is the answer

Are International Families in a difficult position?

They have their own set of worries. Will they be able to stay? Will they need to seek citizenship? To what degree will there be freedom of movement in the future? Will they still feel welcome?

At the moment it’s impossible to give a final answer to any of these questions.

In cases where there has been family breakdown the situation 
becomes complicated if one parent wants to remain in the country 
and the other wants to leave. If you aren't in agreement with the 
children's other parent (or other person with parental 
responsibility) about moving them don’t forget you will need the 
permission of the court. Otherwise you could be guilty of 
child abduction, an imprisonable offence

What did the EU ever do for Family Law?

In my earlier blog post I summarised the significance of EU rules in family law. They have narrow but far reaching consequences.

EU rules decide which country you can start your divorce in

Whilst it might be relatively straightforward for you to decide which ground you wish to rely on in your divorce petition, you also have to address an important technical question about “jurisdiction”, in other words what entitles you to start your divorce in the country of your choice.

EU rules determine this question. It depends on for example the country you usually live in. But jurisdiction can be complicated if couples live in different countries and/or were born in different countries. So EU rules ensure that once a divorce has been issued in one EU country, it can’t also proceed in another EU country as well.

This is important because obviously you want your divorce to go ahead in your country of choice, usually the one you live in.

And some people want the case to go ahead in a country which will give them the best outcome.

An example would be wives in high value divorces who are keen 
to issue in London as it tends to give better results. 
For example, the extraordinary and ground breaking case of 
Christina Estrada which I described in a previous post

EU rules decide which country will deal with cases about your children

Similar EU rules about jurisdiction apply to cases regarding children. When you are having a dispute about your children it’s important to know where the case will go ahead.

EU rules streamline child abduction cases

EU rules tighten up the Hague Convention. The court may hear evidence from the child or children concerned if there is a defence to the abduction, and a time limit of six weeks for the judgment to be given is imposed.

EU rules enforce family orders in other EU countries

EU rules also ensure that orders concerning spousal maintenance and children are recognised in member states and are enforceable. That makes everything a lot simpler and faster where, for instance, one of the parties has gone abroad to work.

What will happen without these EU rules for Family Law?

The government will have to decide to what extent it wants to incorporate these EU rules into our national law.

If it doesn’t we will still be able to get divorced, determine our children’s futures, and protect them from abduction. It just means that it may take longer and be a lot more fiddly and expensive. There could be costly court cases about which country should deal with the divorce or the matrimonial finances or the children. Your case could be heard in a country other than your first choice.

Child abduction cases under the Hague Convention might take longer and will not take into account the children’s wishes in appropriate cases.

As for the recognition and enforcement of orders about maintenance and children, we have international agreements with a range of countries but it’s not automatic and hoops have to be jumped through first. It’s costly and time consuming.

The EU is improving these Family Law rules – will we miss out?

Easy to overlook in the avalanche of Brexit related news, but the EU is currently vamping up some of the rules that apply to family law. If the government doesn’t take action soon we could lose these rules altogether.

The proposed amendments include a tighter timetable in both 
child abduction cases and the enforcement of orders in other 
EU countries. If our government wants to adopt these improved 
rules there’s a deadline. We have to “opt in” to the 
negotiations about the rules by the autumn otherwise we might 
not be able to adopt them.

It would be a shame to miss out on these updated rules which are likely to come into force before we exit the EU.

Rather alarmingly if we don’t sign up to the amended EU family rules we will no longer be able to rely on the old ones either. This is because the new rules take over from the old rules and the old rules will no longer exist.

If this were to happen then clients, lawyers, the court system and court forms will have to move from the old EU rules about jurisdiction, child abduction, and the recognition and enforcement of orders to a set of our own national rules on these areas which, of course, have yet to be made by Parliament.

Alternatively we would be left with the potential for costly and lengthy disputes about jurisdiction, and unnecessary delays in child abduction cases and the enforcement of maintenance and children orders abroad.

All of this would cause a significant upheaval in family law and the courts.

Here at Just Family Law we will of course be closely monitoring 
the situation and ensuring that we are up to speed with 
all changes as they occur

SUMMARY

The UK voted to leave the EU on 23 June 2016
The government has yet to give the EU two years notice under Article 50
In the meantime we remain in the EU and there are no immediate changes to family law
It is important to take legal advice if you are considering moving your children from one country to another without the other parent’s consent (or the consent of anyone else with parental responsibility).
When we eventually leave the EU we will lose a number of important family law rules concerning
- “jurisdiction” in family law matters (in which country a case should be heard)
- streamlining of child abduction cases
- enforceability of family law orders in the EU
These rules will shortly be updated. Will the government be able to adopt them, or will these helpful rules disappear altogether?

Do you think Brexit will affect your family? We would love to hear from you so please leave us a comment.

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JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

Visit our website just-family-law.com

The topics covered in this blog post are complex and are provided for general guidance only. If any of the circumstances mentioned in this blog might have application to you, you should seek expert legal advice.

picture credit: Jean-Pierre Dalbéra on wikimedia

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Posted on August 15 2016

How to Survive the Summer and Avoid Divorce

survive the summer avoid divorce You’ve got the childcare sorted. Good start! Perhaps you and your other half are taking turns to work at home, or maybe you’re using up your holiday entitlement. If the worst comes to the worst there’s always the grandparents or a childminder or a local play scheme. So pat yourself on the back. It’s covered. Fingers crossed there’ll be no major tantrums or tummy bugs this year (and that’s just the grandparents).

So it’s time to look forward to the biggest of big treats, the long awaited and eagerly anticipated family holiday. In those weary moments between filling up the dishwasher and collapsing into bed, drink a glass of wine and dream about Bermuda, or the Balearics, or Bognor Regis – whichever charmed spot you’ve chosen this year.

Because wherever it is, it’ll be wonderful, won’t it? The days will be filled with delight for you and the children. Happy memories will be formed that will last a lifetime. The sky will be blue, the sea will be warm. In the long and fragrant evenings you and your other half with sit on the terrace/in the bar/in front of the tent, and share a bottle of wine/jug of sangria/can of lager and reflect happily on the joys of family life. As the sun goes down you will smile lovingly into each other’s eyes.

But was there ever such a perfect holiday?

For starters there’s the weather. Who knows, there might be days when it’s a bit rainy or a bit windy. There could even be a hurricane (although probably not in Bognor Regis). Then there’s the squabbling siblings, the younger one’s ceaseless chatter which provokes the older one into gloomy sulks. And there’s that gut wrenching thought as you pay for yet another expensive activity that the children would probably do just as well with a bucket and spade on the beach.

And don’t forget the querulous and hard to please other half. Last year they spent all of thirty minutes playing with the children and the rest of the holiday learning to scuba dive. How annoying was that! Or maybe they said, Here are the children, it’s your turn now, and spent the rest of the holiday flat on their back on a lilo in the middle of the pool, piña colada in hand.

The fact of the matter is summer holidays aren’t perfect and if you spend the year imagining that everything will be put right by one you will be sorely disappointed.

And sadly there’s a spike in divorces after the holidays, typically in September. But does it have to be like that? Do you have to return from your much anticipated holiday feeling betrayed and angry because your other half didn’t match up?

Of course no one advocates staying in an unhappy marriage because that’s probably no good for anyone, parents and children alike. But maybe there’s another approach. Maybe before going on holiday, maybe even before booking it, you could stand back and ask yourself, What do I want from this holiday? What can I do in advance to help make it work?

It might be an idea to talk frankly to your other half. Tell them just what it is you want. Tell them how you’d like the parenting managed. Ask them what their expectations are. Do they see it as the crowning achievement of the family’s year? They might well agree it’s an opportunity for family joy and togetherness. But they might say what they want more than anything else is relaxation, a break from the routine, some “me time”. Or maybe, deep down, they don’t like holidays at all, they really can’t stand travel, hotels, beach bars, infinity pools. What they really fancy is a fortnight hiking in the hills in a fluorescent cagoule, rounded off by wrestling with a sopping tent in the pouring rain.

It takes all sorts. You love them because they’re an individual? Right? Let’s face it, it could be that you and your other half have completely different expectations.

And to top it all did you know that some people see the summer holiday as the last chance to save a relationship. Put down in black and white that seems crazy doesn’t it? If the magic has gone, if your other half is annoying the hell out of you, maybe a more full proof method of stress testing the relationship would be to talk to them about it, address it full on. Who knows, you might be able to talk it through. Or if that doesn’t work perhaps it’s time to see a relationship counsellor. Maybe the relationship is over, or maybe it’s worth trying to save. Sometimes in the hurly burly of family life it’s easy to lose sight of each other’s needs.

If none of this works and you end the summer thinking, that’s it, I’ve had enough, then perhaps divorce is indeed the answer for you. You will be able to turn the page, find a new, independent life for yourself free of the burden and the unhappiness of your marriage.

But is divorce that easy? Looking on the bright side, it could be that you will reach an agreement about the finances and the children relatively painlessly. The marriage behind you, you embark on your new life. You bloom like a flower in the desert after a rainstorm. It’s the making of you. You’re happier, healthier and more in charge of your life.

If this is the case I’m happy for you. May you continue to prosper.

But sadly life after divorce isn’t always that simple.

You may have realistic and practical ideas about how you’ll live after the divorce but your other half might see things quite, quite differently. You might think the ideal solution would be for you and the children to stay in the family home and for the other half to move out and find a new place. This may indeed be the most sensible solution, both in practical and financial terms, and no doubt in the best interests of the children. But will your other half agree? Not necessarily. It could be they’ve got their head stuck firmly in the sand. So you contact a solicitor. You try collaborative law, or maybe mediation. These are often really excellent ways to reach a happy conclusion. But sadly cases about finances and children do reach the courts – an expensive and stressful business for all concerned.

Divorce does indeed have its downside. It could be that as you turn the page on your marriage you will find yourself starting a new life in a different home, your finances radically altered. The children may, or may not, adjust well to the new arrangements. They may or may not have good quality and regular visits with their absent parent. And you’re now functioning as a lone parent household which can be great but can also be very, very hard.

You might also find your wider relationships affected. Maybe a family member wasn’t as supportive as you’d hoped, maybe a friend tried to stay neutral and this hurt you. Suddenly it seems everything’s changed – your home, your finances, the daily slog of running everything, your relationships with your family and circle of friends.

I can honestly say I’ve never come across a client who wanted to get divorced for trivial reasons. Every client has their own unique and painful story to tell so I’m not advocating that anyone should stay married if they don’t want to and I’m not saying that divorce is a bad thing that should be avoided. I’m just making the point that if you think this summer holiday is make or break time for your relationship, please try to talk it through beforehand, manage your expectations, maybe get professional help with your relationship. Because divorce isn’t a walk in the park, it can be painful and can have long lasting consequences.

So anyway, enjoy the holidays! Let’s face it, if you can sort out the summer childcare, you can sort out anything.

Do you find the holidays stressful? We would love to hear from you so please leave us a comment.