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.
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.