Since joining the EU, the free movement of people throughout Europe has led to an increase in international families in the UK, with more marriages involving people of different nationalities and from different cultures than ever before. The large number of international families in the UK could mean social, economic and legal complexities post-Brexit, with studies already showing that Brexit is causing friction within families.
The charity Relate found that one-fifth of their relationship support counsellors have worked with clients arguing in some way over Brexit. It has been noted that a similar phenomenon has arisen in the US with couples splitting as a result of their opposing views with regard to the 2016 election. Such uncertainty could have very real and serious effects on couples and their children. Therefore, it is vitally important that family law makes a smooth transition through the Brexit process to provide certainty and security for families within the UK.
In order to afford protection to international couples and families, the EU has implemented various regulations which apply within the UK and govern family law. Regulations cover issues such as jurisdiction, enforcement, divorce, parental responsibility, child abduction, maintenance obligations and service of proceedings and help to provide security for families living within the UK. Post-Brexit, the UK will not be directly accountable to these regulations and therefore the government must ensure that adequate protection is put in place for families. In order for the best protection it is vital that international couples seek advice regarding the status of their families post-Brexit. There are likely to be three main considerations for families living within the UK: relationship breakdown, children and the applicability of EU law going forward.
As there is no harmonisation of matrimonial finance laws across Europe, Brexit will not affect the way that the UK courts deal with the division and distribution of assets upon a divorce. However, it is likely that there will be jurisdictional issues as EU regulations governing where proceedings will be issued will not apply. The Brussels II Regulation governing jurisdiction ensures that situations do not arise where courts in different countries accept jurisdiction over a divorce and consequently adjudicate on the same issues. This is problematic for individuals as it wastes costs, valuable time and court resources, which an already stretched legal system cannot endure.
Accordingly, when the Brussels II Regulation no longer applies there may be great difficulties in cases involving couples with dual nationalities. For example, if both German and English courts were to have jurisdiction over an Anglo-German divorce there may be a lengthy and costly forum dispute, whilst separate parties seek to get their favoured country to deal with the issue first. This will only add stress to the individuals involved in an already emotional process.
In terms of children matters, complications are likely to arise with regards to child abduction and international children issues. As a result of Brussels II no longer being directly applicable in the UK, the requirement to deal with abduction cases within six weeks will not apply. Without a requirement in law to deal with cases urgently there are likely to be feelings of concern and insecurity amongst parents who feel that cases involving unlawful removal or retention from one country to another will not be dealt with sufficient urgency. Therefore, this issue must be of prime consideration when dealing with family law post-Brexit to ensure security for international families.
Another issue relating to children is whether or not they will have permanent residence in the UK. Currently children will have permanent residence if they or their parents have been exercising treaty rights for a five-year period. Therefore, some may not be able to remain post-Brexit if the government fails to adopt a regime converting EU permanent resident into indefinite leave to remain. Accordingly, the lack of clarity for the future means there is going to be some very serious immigration concerns for families and specialist immigration advice should be sought.
The UK is currently a signatory of various beneficial family law treaties with non-EU countries as a result of our membership of the EU and treaties such as the Hague Convention. These are beneficial elements of EU family law which we will want to retain.
There are still clear issues within EU countries regarding jurisdictional disparity in laws regarding same-sex couples, and it is likely this could be further exaggerated with same-sex couples wishing to emigrate to EU countries because of Brexit.
The Marriage (Same Sex Couples) Act 2013 made same-sex marriage legal in England and Wales, and couples were offered the opportunity to convert civil partnerships to marriages as well as receive backdated marriage certificates. The date the civil partnership began is listed as the start of the marriage but the certificates also include the date of conversions. However, there have been recent experiences of couples relocating outside of the UK to other European countries, where the same-sex marriage will not be awarded the same rights. In France, officials have recently said that an English same-sex marriage will be invalid under French law if there were no witnesses and owing to the fact the marriage certificate will be backdated. This may be a huge shock to same-sex couples and the status of their marriages must be checked for other important reasons such as immigration, tax and parental responsibility of children.
As lawyers the advice we give to our clients has to be clear and accurate. Disparity in laws in other countries for international same-sex couples creates uncertainty and anxiety for clients.
In order to provide families and couples with the greatest protection for the future we need to ensure that there is a clear approach to family law post-Brexit. The most sensible way to do this would seem to be ensuring that we strike the appropriate balance between retaining beneficial EU laws whilst also ensuring UK citizens are adequately protected by domestic laws. If this is done in a clear and efficient way we can hope that a smooth transition will permit the highest levels of protection for international families residing in the UK.