Brexit looks like the world’s worst break-up. But for cross-channel couples currently on the skids, the U.K.’s separation from the European Union may just be the harbinger of another messy split to come: their own.
As the British Parliament grapples with unknowns over when and how its extraction from the EU will happen, divorce lawyers are weighing an “enormously complex” picture for mixed couples who separate post-Brexit.
“There is complete uncertainty,” says Nigel Shepherd, a family lawyer at Mills & Reeve and former chairman of Resolution, an organization for family law reform.
The U.K. is currently facing a Friday deadline to agree to either an exit deal or a long extension to the country’s membership in the bloc.
The confusion of post-Brexit family law could potentially affect hundreds of thousands of people: in mid-2017, there were nearly half a million EU citizens living in the U.K. with a British partner, with more than 130,000 of those couples in London alone, according to estimates from The Migration Observatory at the University of Oxford.
Hundreds of thousands more couples made up of either two Brits living in the EU, or two Europeans living in Britain likely exist. Any of those couples, if married, could divorce in either the U.K. or another EU country.
At the moment, divorcing in England and Wales (Scotland and Northern Ireland are slightly different) can have big advantages for some spouses. English and Welsh judges have reputations for being more generous to the spouse who brought less money to the relationship, earning London the long-running nickname of the ‘Divorce Capital of the World.’ That’s a title that—like so much else—Brexit could threaten.
Right now, taking advantage of London’s friendly divorce environment is rather straightforward for warring couples; the first party to file for divorce simply files there. EU law recognizes the jurisdiction of the first divorce filing, meaning that if a second filing is submitted in another member state, it’s typically thrown out by a judge. The system is known to trigger a ‘race to the court’ between spouses, with the winner getting to determine the divorce venue.
“It’s the person who gets there first, and it can make a really big difference in financial arrangements,” says Shepherd; it can mean getting awarded up to half the assets built up during the relationship if you file in England or Wales, versus a fraction of those assets in other countries. For wealthy couples, millions of pounds or euros are at stake.
While it can get nasty, at least “you know where you stand” in the current system, says Shepherd.
But the arrival of Brexit—whatever that will ultimately look like—could lead to more complex, drawn-out divorces, including lengthy court battles about which country the divorce should be heard in in the first place, already a feature of high-profile London divorces between non-European couples.
That’s because the question of “reciprocity” will be thrown into question—whether a divorce filing made in England, for instance, will be respected by a European judge, and vice versa.
The uncertainty goes further, lawyers say: there is little clarity on whether European family law will be adopted or upheld in the U.K. post-split, and vice-versa, leaving cross-channel couples facing countless questions on financial arrangements, custody, and even whether their divorce arrangements will be enforced in EU countries.
With the ultimate fate of Brexit up in the air, there’s very little certainty coming from either the U.K. or the EU. As a result, the once straightforward race to court could instead become, in effect, a chessboard.
“You can’t say with any confidence what the outcome [of a divorce] is going to be,” says Lisette Dupré, a family lawyer at Dawson Cornwell. “It’s pretty rotten as a client.”
Dupré says she’s advising her clients to be even more strategic about where they file, taking into account what their post-divorce may look like beyond the finances. And she’s still telling them, until we know differently—keep racing to court.
But despite the Brexit-era tone of love-gone-sour between London and Brussels (all involved admit it was never an entirely smooth partnership), Britons themselves are actually setting a better example when it comes to marital harmony.
In 2017, the last year data was available and the first full year after the Brexit referendum, the rate of opposite-sex divorces hit their lowest point since 1973, according to the U.K.’s Office for National Statistics, a trend which they partly attributed to a rise in couples living together without being married. (Same-sex divorces increased in that year.)
Those who did get divorced were mostly splitting after long marriages. The average duration of a British marriage ending in divorce in 2017 was more than 12 years, the longest average seen since 1972.
That said, Brexit is proving that a long marriage doesn’t always equal a courteous split—Britain’s own relationship with the EU is now 46 years old.
The moral of Brexit for any divorcing couple, then, is simple. It’s also among the hardest to follow: whatever you do, try to avoid a “no-deal,” says Andrew Newbury, a family lawyer at Hall Brown, in the Washington Post.
“Political standoffs, like marital showdowns, create their own destructive momentum.”
