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Brexit, children, divorce law, and the unthought-of complexities of disengaging with the union

Feb 09, 2018   ·   4 minute read

When most of us exercised our right to vote on Brexit we thought long and hard about the financial pros and cons of exiting the European Union and made a considered vote on what we thought was best for our families and the country.

At least that is what my friends and family tell me they did. As a specialist children and family lawyer I also speculated on how a vote to leave the European Union would affect family law in England and Wales. I suspect that issue wasn’t high up on other people’s and politician’s agendas when voting on Brexit. As the European Union (Withdrawal) Bill makes its way through parliament and the House of Lords it is only now that some politicians and peers are flagging up the post Brexit intricacies and complexities of Britain fully or partially divorcing itself from European family law and the potential impact on British families if they get divorced, try to enforce UK family Court orders in European countries or attempt to recover children taken abroad to EU countries.

Many will assume that Brexit will only affect a tiny number of separated families but there are said to be 140,000 international divorces and 1,800 cases of abduction of children within EU countries each year. I suspect those statistics don’t reveal the full extent of divorcing families international law connections as so many British couples now own a holiday home in Spain or a gite in France and so need to know that, on divorce, family Court orders made in UK Courts can be implemented quickly and economically in European Union countries.

I have to confess that I don’t often read speeches delivered in the House of Lords but a speech given by Baroness Sherlock on the second reading of the Withdrawal Bill caught my eye:

Her example family of a German man married to a British woman is one that we are all familiar with, all we need to do is change the family names and perhaps the European country where the husband or wife originated from and it could be a member of your family or work colleague or neighbour. It is putting names to the statistics of international divorce that really brings home the uncertainty that all families face in post Brexit changing family law.

What does Brexit mean to my divorce, financial order or ability to recover my child from a European country? That after all is all that people are interested in if you are in the unfortunate position of separating from a husband or wife or have an existing Court order and there are possible European family law consequences.

The short answer is that no one knows for certain but if changes aren’t made to the Withdrawal Bill then the UK would still apply EU family laws in Britain but British families wouldn’t get the current level of protection of EU family law and regulations that currently make Court jurisdiction, enforcement of family financial orders and recovery of children taken to EU countries relatively simple in comparison to a separation or divorce from a husband or wife from a non EU country or the abduction of a child outside of Europe.

What can you do if you are going through a divorce now with an EU member to protect yourself or you have an existing financial or children Court order that you may need to enforce in an EU country? The first thing is to be aware that the law will change and the second thing to do is to get expert advice on what can be done now to protect you and your family or the steps you can take.

Advising families in the changing family law world post Brexit is a challenge as no one knows how family law will be affected by Brexit but the most important aspect of my job, when advising on a divorce with an international aspect or on reviewing exiting family and children Court orders, is to flag up how both future negotiated family Court orders and existing orders could be harder to enforce or implement so that informed decisions can be taken on whether , for example , you want to retain the foreign holiday home and what protective measures can be put in children orders to ensure children are returned from EU countries.

If you need advice on any aspect of family or children law please call me on +44 (0) 1477 464020 or email me at