How Brexit Could Affect Your Divorce if Your Ex Moves Abroad

Author:
Agata Osinska
Associate Solicitor, Family Law Polish Team
Date:
15/01/2019

As it stands, the UK is due to leave the European Union on March 29th. So what impact is Brexit likely to have on your family life if you’re divorced and live or plan to live in separate countries? Well, the effect could be bigger than you imagine.

Currently, we have regulations from Brussels to help us with enforcement and recognition of any child Court Orders made by the UK Courts. This means that when you have a Child Arrangement Order that includes important issues such as where the children are to live and what kind of contact they’re to have with the other parent, it will be easily recognisable and enforceable in other EU member states.

So if you or your ex are planning to move abroad, there shouldn’t be too much hassle with putting arrangements in place.

For initial advice please get in touch with our Family Law Solicitors.

Call us on 08002605010 or request a callback and we will help you.

What Happens After Brexit?

At the moment, we still don’t know if the regulations governing enforcement and recognition will be replaced or reintroduced in UK law and whether all other members will accept what England and Wales introduce instead. If they don’t, there might be huge differences in enforcement depending on the country involved.

Imagine that you went through a difficult, lengthy and emotional process of Court proceedings to decide on your child arrangements. By the end of it, you obviously want to be sure that it wasn’t all for nothing.

But it could be if you don’t consider enforcement and one of you is to live in another EU member country. If not for the current regulations, you could be in a situation when the domestic Court start a completely new set of proceedings and ignores the order made by the English Court for no good reason. Doesn’t sound too good, does it?

We also need to keep in mind that most of the EU countries’ laws are based on each one’s constitution and not on common law as in England. Therefore, there might be significant differences between what types of Order the Court makes here to an Order given by another country in the same scenario. For example, in some EU countries, it’s a lot easier to remove parents’ Parental Responsibility or go to Court to obtain a Child Maintenance Order.

There are certain ways to prevent this or make sure that proper safeguards are put in place - for example, a mirror Order in the other country which is entered into and made binding while the English proceedings are still being finalised, so that in case there are any difficulties, there’s still time to fix it.

Even bigger issues might come to light when it comes to full relocation applications or child abduction issues. Currently, if one wants to relocate with a child and the other parent doesn’t agree, they need to make an application to the Court to ask for the Court’s permission.

But there’s uncertainty about how such a Court Order may be enforced post-Brexit if it also includes some contact provisions. Furthermore, the fact the UK isn’t in the EU anymore could prompt a Court to consider the application differently all together.

Child abduction is another huge concern. The conventions currently in place make sure that if a child is abducted to an EU member country, there are normally quick and straightforward steps to return this child safely and swiftly to their country of residence.

However, as with every other area of law, if the UK leaves the EU and this isn’t addressed in advance, we’ll be faced with chaos in this regard, which might have very serious consequences to parents facing these situations.

It’s best to have legal advice from a Family Solicitor in any matter regarding children if it has any international element. But that could be more important than ever post-Brexit.

For initial advice call our Family Law & Divorce Solicitors

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