Brexit it is to all intents and purposes the mother of all divorces. We are trying to unpick decades of legislation and agreements which have been put in place, it was thought, for the benefit of all parties, but much like a personal relationship, it turned sour and now we are trying to put everyone is a position to be able to rebuild their lives, and laws, and move on. If you think that unpicking a 25 year marriage is hard, the memories, the children, the family business, assets, liabilities, just think for a moment what it must be like attempting to put the UK and the EU back on fair and equal footing.
The EU hears cases relating to UK citizens, it recognises and can enforce UK orders. The UK controls the main legislative provisions that affect a family on separation. In relation to divorce itself, as we have seen recently with the move to have a ‘no fault’ divorce, the UK can set its own rules about how we divorce. It also sets the level of maintenance payable for a former spouse and/or children. The UK has its own rules on child arrangement orders, when the local authority will step in to remove children from families that are failing them, and where domestic violence is an issue. The EU currently pulls rank when there is an argument over the jurisdiction of the divorce, i.e. do the parties really live here or do they actually live in another member state who should oversee the divorce? It looks at parental responsibility issues, and most importantly under Brussels II children who are abducted from the UK can be returned with the assistance of the member state the parent has absconded to with the child. Another helpful attribute to the current arrangement is the reciprocal enforcement of orders. If you have a divorce, order for financial relief or child arrangement order from the UK, a member state will recognise it and enforce it where appropriate.
The EU regulations currently have direct effect in the UK meaning these orders do not have to be registered and an order made here is as good as one made in another member state.
Fast forward to exit day or shortly thereafter, whether or not you can sell your timeshare in Lanzarote for a profit, will frankly be the least of your worries if you have a former spouse who moves away and settles in the EU and you want a divorce, you’re in the middle of a divorce or if you have a financial order which may be ignored and will therefore need enforcement.
The government helpfully says that if any of these situations affect you then you ought to contact a specialist family lawyer. However, without any definite answers as to how we will proceed post Brexit, the most we can really say is that post Brexit the REMO (Reciprocal Enforcement of Maintenance Orders) unit will still be contactable. REMO is overworked and underpaid as it is, so goodness knows how it will fare when we actually do have to register our orders in other member states for them to be binding. It is more work for no more gain as far as I can see. The sensible thing to do is not to panic. If there is a European element to your family just be aware there will be more paperwork, but if there is a European element to your family you are probably well aware of this by now.