Brexit might have an impact on families too!
A number of people will be relocating to Europe as a result of Brexit – some already have regardless of the 31st October outcome. Whether it is seen as an inevitable career move or an exciting adventure for mum, dad and the kids, beware! There could be family implications further down the line.
By residing in another country, you may be subject to the laws of that country with vastly different approaches to inheritance, matrimonial regimes and divorce.
Our Family department is currently dealing with many cases involving families in the process of moving to Europe. An article published in The Times of 24th September* titled ‘Brexit driving rise in custody battles, lawyers claim’ reports that ‘in the two years after the referendum in June 2016, the number of child arrangement orders increased by nearly 20 per cent’.
You need to plan well in advance of any move as a lot needs to be considered to make the transition as smooth as possible, especially when it comes to marriage and children. We have mentioned below some of the areas where you should seek advice.
There is often a misconception that nuptial agreements refer to ‘pre-nuptial’ agreements, entered into before marriage. However, they also include ‘post-nuptial’ agreements, entered into after the marriage has taken place. They are well worth considering as part of your plan to relocate.
Whilst they are not legally binding in England and Wales, the Court will uphold a nuptial agreement that is freely entered into by both parties where there is a full appreciation of its implications, unless it would not be fair to do so at the time of divorce. Entering into a carefully drafted nuptial agreement can provide you with certainty in the unfortunate event that your marriage breaks down.
You need to be aware that if you leave this to chance, then you could end up being subject to laws and concepts with which you are not familiar. But even if you do enter into a nuptial agreement in England and Wales, then you may need to take steps to have the agreement mirrored or perhaps even adapted to accommodate the local laws of the new country in which you are going to reside. In some countries, such as France or Denmark, English nuptial agreements will not necessarily be upheld, but you can also enter into a separate marriage contract in those countries, to comply with local laws. This is complex and it is therefore important that you take advice at a very early stage, as things will differ from country to country.
Couples moving to Europe must be aware that they may be able to issue divorce proceedings in both England and the country of residence. It is important to understand the differences between countries and their approach to divorce. Issuing proceedings in one country may be more advantageous than the other, depending on your circumstances. If you can issue proceedings in both countries, then there may be a jurisdiction race at the time of the divorce. However, as mentioned above, you can avoid this by entering into a nuptial agreement and/or marriage contract, choosing which law you would prefer to apply to you, prior to relocation. Generally speaking, England is one of the more generous countries in which to get divorced. So, it is well worth checking before moving!
For separated or divorced parents, a relocation could mean one parent applying to the court to relocate the children to Europe. If successful, it may cause difficulties, on a practical level, in seeing the children for the parent who is left behind in England.
Parents should be aware that if they relocate children to another country, then on divorce, decisions about the children will typically be heard by the country in which they are habitually resident.
According to the Times, EU nationals in Britain expressed concerns over whether UK court orders will be enforced in EU countries after Brexit, with the situation possibly made worse if there is no deal. Indeed, Britain would then be treated as any other foreign country and it would be more costly and difficult for judgements to be enforced.
It goes without saying that upon moving to another country, you should also seek advice in respect of your estate and how you intend for it to be distributed. You must be aware of the differences between countries in terms of inheritance laws and the various tax implications that might follow. It may be possible for you to choose English law to apply to your estate, depending on the country you move to. If you do not do anything about it, then you may end up with your estate being distributed differently to the way that you intended.
If you are considering a move to Europe – or any other country – then it would be best to take advice and review all the options.
* The Times – 24th September – https://www.thetimes.co.uk/article/brexit-driving-leap-in-custody-battles-lawyers-claim-qsj0mbpfd#