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Analysis

Brexit could make divorces messier

by Joel Baccas | 26.09.2018

The EU’s free movement rules mean EU citizens can move freely to live, work and study anywhere in the bloc. The happy consequence of this is lots of relationships and marriages between UK and EU citizens, and children born with ties to different EU countries. The sad reality, however, is that up to half of these relationships will end in separation or divorce. The last thing a divorcing couple wants is a complicated legal process as they try to thrash things out across borders – especially with kids involved.

Difficulties can arise because each sovereign member of the EU has its own legal system in questions of family law, with different processes applied to separating couples and their children. EU law tries to make this easier.

In particular, there are two different EU regulations that determine which countries’ courts will hear cross-border family disputes: the Brussels II Regulation and the Maintenance Regulation. The law being clear from the start means more certainty and usually less cost.

Brussels II covers things like child abduction between different countries. It’s pretty straightforward: if a parent removes a child from one nation to the another, without authority, the regulations provide an “easy” procedure to return the child to the country from which they were removed. In these situations, the courts of the member state where the child was originally living will retain the jurisdiction and enforce the child’s return.

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These regulations take precedence over the Hague Convention, which allows the abductor to prevent a child from being returned if there is a risk to the child’s well-being. The EU rules say the abductor cannot use this defence if there are arrangements in place to secure the protection of the child.

The Maintenance Regulations, as the name suggests, cover questions concerning maintenance claims, including how to deal with competing maintenance claims between two courts, as well as who enforces maintenance obligations. The idea is to put in place a simpler process and have maintenance decisions enforced in the same way between member states. For instance, it even allows couples to agree which state’s laws will be used if a dispute were to arise, providing greater legal certainty from the start.

After Brexit, a new framework for settling family disputes will have to be agreed by the UK and EU countries. At the moment, all 28 members states agree to follow the EU regulations. The UK might unilaterally choose to keep the rules, but as it will be regarded as a third country, each EU member will get to choose if it reciprocates. Other international agreements like the Hague Convention will still apply, but these are not as comprehensive.

If we crash out of the EU with no deal, we would be wrenched out of the EU framework for civil judicial cooperation immediately. That could have a dramatic impact for cases already under way.

Protecting kids in an acrimonious divorce was not raised in the referendum debate. We now see Brexit has the potential to bring frustration and heartache to many separating families. Being able to rely on a relatively straightforward process after a cross-border breakup is just one more thing we look set to lose after Brexit.

Now we know more, we deserve a People’s Vote on the realities of Brexit.

Edited by Luke Lythgoe

Tags: , Categories: Brexit

2 Responses to “Brexit could make divorces messier”

  • On 17 December 2017 while speaking about access to the EU Single Market Boris Johnson said – failure to ditch EU “law” would make the United Kingdom a vassal state of the EU.

    Differing national standards constitute Technical barriers to trade (TBTs) so that to circulate in the EU Single Market goods must conform to a common framework of regulations. In its programme for creating the single market and removing TBTs the EU adopted the technique of Reference to Standards that are created by the European Standardization Organizations CEN, CENELEC and ETSI which are private bodies whose membership comprises the Standardisation bodies of 33 countries, such as the British Standards Institution (BSI) In addition to the 28 Member States of the EU there are the four members of the European Free Trade Association (EFTA) and since 2012 Turkey.

    The single standard model supports the European Single Market as it means that there is
    only one standard in use across all the countries of the single market on any given issue.
    Industry favours the model because it reduces the number of standards that an
    enterprise may have to consider trading across borders. It also reduces cost and
    increases choice for consumers by making it easier for goods and services to be traded.
    Businesses gain the benefits of market-driven good practice developed by broad communities of experts through robust and open standardization processes.

    More than 60.000 technical experts from industry, associations, public administrations, academia, and societal organizations are involved in the CEN, CENELEC and ETSI network.
    Their stakeholders are: business, industry, and commerce; service providers; consumer, environmental and societal organisations; public authorities and regulators; and other public and private institutions.

    European standards respond to the needs not only of requirements for products but also public policy. There are European standards for products, testing methods, business processes (such as procurement) and increasingly, for services.

    It is a condition of membership of both CEN, CENELEC and ETSI that all European standards are adopted identically by all members such as the British Standards Institution (BSI). BSI’s expectation post-Brexit is to remain a full member of CEN and CENELEC enabling UK experts to continue to influence the content of standards that are tools of the market used voluntarily across Europe. This is on the basis that: –
    • CEN and CENELEC are not agencies of the EU,
    • Their current membership is broader than the EU.
    • BSI’s stakeholders (industry and consumer groups)
    have expressed strong support for UK commitment to
    international and European standards. To achieve this:
    • A technical amendment to the statutes of CEN and
    CENELEC might be required,

    • UK government would need to continue a regulatory approach that supports the single standard model with its commitment to the adoption of internationally agreed standards that maintain the rigour of the standards regime in the UK.

    CEN and CENELEC have dedicated agreements with the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC), promoting the benefits of the international standards to international trade and markets harmonization. The high level of convergence between the European and international standards is facilitated by the ongoing technical cooperation between CEN and ISO (Vienna Agreement) and between CENELEC and IEC (Frankfurt Agreement).
    The main objectives of these agreements are to provide
    • A framework for the optimal use of resources and expertise available for standardization work;
    • A mechanism for information exchange between international and European Standardization Organizations (ESOs) to increase the transparency of ongoing work at international and European levels.
    Not only has Membership of ISO, IEC, CEN and CENELEC has been essential to the UK’s participation in international trade as a member of the World Trade Organisation but UK industries are integrated with those of all these countries around these common standards.

    A refusal to use European standards and to withdraw conflicting national standards would not only create additional barriers to the export of UK products but also hinder cross-border cooperation to the serious detriment of UK industry

    “It is BSI’s ambition, and its confident expectation, on behalf of UK stakeholders, for the UK to continue to participate in the European standards system as a full member of CEN and CENELEC post-Brexit. Given the private status of these bodies, and thus their independence from the political authorities, BSI’s ambition is not affected by the Prime Minister’s announcement on 17 January 2017 that the Brexit process will include the UK leaving the Single Market.

    Our (BSI) membership of the two international standardization organizations, ISO and IEC, will be unaffected by a UK exit from the EU. BSI is committed to representing the UK’s interests in the creation of international standards that support innovation and provide solutions to global challenges.”
    (There are 443 CEN project committees and many of the standards produced have become ISO standards)

  • On the subject of mixed relationships,( UK and EU partners), there is the prospect of EU partners not being allowed into the UK after March 2019 (or transition period).
    There is the prospect of that applying to those in durable relationships and married partners. The Cabinet apparently reached an agreement post Brexit to ‘downgrade’ the status of EU nationals.
    The PM previous stated she wants a “deep and special relationship” with the EU post Brexit. This seems a strange way of reflecting it.