March 2018

Brexit bad for ‘cross-border’ divorce according to legal experts

Consensus Collaboration Scotland, a network of lawyers, family consultants and financial experts specialising in out of court divorce settlements using a technique known as “Collaborative Practice”, say that Brexit will cause havoc for Scots couples living in separate European countries while undergoing a divorce.

Cath Karlin, founder of Cath Karlin Family Law specialists said: “Roughly 1 in 10 cases involve cross border divorce proceedings in Scotland and there are 140,000 international divorce cases that take place in the EU each year. For these people, Brexit could be a disaster. Since 2000 we have benefited from Brussels II a European Union Regulation designed to promote legal uniformity and consistency of family law between EU countries. Under Brussels II, a person was allowed to raise divorce proceedings if they satisfied a residence requirement in most EU countries, even if they were non nationals, and once proceedings had started, any other EU country with jurisdiction would be compelled to give precedence to the member state in which proceedings were first raised.

As soon the EU Withdrawal Bill is passed, we lose this. For example, if a couple one of whom is German and one is Scottish file for divorce and both decide to do that in their country of birth, then courts in both countries could be dealing with the same case in tandem, and possibly come to conflicting decisions. As Brussels II would no longer be applicable, the Courts in Germany will not have to give precedence to a case in Scotland, even if it was raised first. This has the potential to result in expensive, long drawn out divorces, where a legally recognised settlement may never be reached. There will simply be no clarity as to which divorce ruling stands, throwing the whole process into chaos. This will be particularly detrimental if there are children involved.”

Legal experts say that divorcing couples in Scotland will also suffer from what has been termed as ‘Divergence and Atrophication,’ meaning that as EU law continues to develop, ours will become the old, less good provision, while the rest of the EU27 will enjoy the new, enhanced provision. Post Brexit, Scots family law will return to the 1968 framework, which is the last time the we have engaged in international treaties.

Rachael Kelsey, founding director of SKO Family Law Specialists added: “It has been suggested by some academic commentators that “there is nothing to fear”, because there is other international provision that Scots can rely upon (the Hague Conventions of 1970, 1980, 1996 and 2007). Leaving aside the issue that no guarantees can be made that we will be able to rely on them as we do now, post exit day, the bottom line is that the Hague provision (if available) is less than the provision that Scots currently enjoy. Scots are going to lose valuable rights. They face the prospect of prejudice, uncertainty, delay and expense. We need the Justice Committee to highlight what the impact of Brexit is going to mean to ordinary Scots going through family disputes.”

While Brexit will have a divisive effect on court divorces across Europe, out of court methods such as collaborative divorces are heading in the opposite direction. The European Network of Collaborative Professionals (ENCP) is seeking to promote a ‘harmonisation of collaborative divorce practices across Europe,’ by standardising best practice through training and support for international collaborative divorce practitioners. The aim is to create a Pan-European Gold standard to ensure consistency of practice and encourage cross border collaboration.

Cath Karlin continues: “We believe divorcing couples living abroad will increasingly turn to out of court divorce settlements to avoid the post EU Withdrawal Bill fall out. For example, collaborative divorce methods where couples have access to financial planners and family consultants who, together with collaborative lawyers, help the couple to agree an out of court divorce settlement. This is often a less stressful, less confrontational and a cheaper way to part ways. Importantly, it allows the couple to make the decisions rather than a court of law. I believe this is the future for cross-border divorces.”

If you’re considering an alternative to a court based divorce, contact a local collaborative professional for advice and information.

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