It is well known that process of relationship breakup is one of the most emotionally challenging and stressful times in anyone’s life, and it may just be getting even more challenging.
If you are contemplating divorce or in the process of divorcing and you or your spouse is an EU national, this blog could be very helpful.
The legal bit:
I should start by making it clear that in drafting this blog I am writing from the point of view of mediation. Other than perhaps “beware and take legal advice at the first available opportunity” I am most certainly not purporting to provide legal advice and this blog should not be interpreted as such. At the very least, the relevant legal issues are complex and cannot be satisfactorily addressed in three or so pages of A4.
What is happening?
Like it or not the UK is about to leave the European Union. The attendant negotiations seem to be going down to the wire and at present, UK citizens and indeed their European counterparts have no idea of what the outcomes will be. The chances are that whatever individual views mat be, most people will agree that they are facing a period of considerable uncertainty and that, fail or otherwise, last minute negotiations may well result in a terrible mess that could take years to resolve.
Any agreement that may be reached has to be ratified by a considerable number interested parties, not least a plethora of European nations. Once they have done so, possibly as late as 31/12/2020 civil servants and local authority officers, including many in the UK will have to make sense of it at all and work out how to how to crystallise what has or has not been agreed in the form of guidance and regulations.
Even in the best of circumstances, treaties, international agreements and often outline parliamentary legislation cannot stand alone. Without extensive guidance or regulation, such things are meaningless and cannot be implemented on day-to-day basis by civil servants, court officials and the like. The fact that matters may or may not be agreed until the very last-minute means that the whole process of devising any required legislation and guidance cannot be undertaken until after the cut-off date i.e., 31/12/2020 – perhaps the ultimate governmental example of shutting the stable door after the horse has bolted.
It is distinctly possible that whatever the politicians involved may sanctimoniously declare once some main points of agreement have been agreed, subsidiary negotiations will ensue for many months to come and it will be quite some time before matters that need to be resolved now will be properly addressed.
What has all this got to do with family mediation?
One particular current area of concern to UK family lawyers is the question of nationality. Until now the European doctrine of free movement has meant that EU citizens have been able to move quite freely between the UK and the EU and vice-versa. Now some, particularly those who have not officially registered their UK residential status, may find they cannot.
These concerns particularly impact in the area of divorce where one party to British marriage may be a UK citizen and the other a citizen of an EU country. In practice, in many instances, not all EU spouses living in the UK will have registered their status and if now in the throes of divorce may need to consider their positions very carefully.
If a Decree Nisi or Absolute is pronounced, an individual spouse may find that his or her right to reside in the UK has been abruptly truncated. People who have been resident in this country for some years may find themselves cast out with nowhere to go. The reverse may be true where a divorce is pronounced in an EU country but where some or all of the affected family members are resident in the UK.
A UK based mother with an EU nationality might for instance simply decide to return to her country of origin taking children of the family with her and effectively depriving as her soon to be ex-husband of contact with them. It is distinctly possible that an unscrupulous spouse might seek to exploit this uncertain scenario and the levels of rancour and disagreement that can beset even the best organised of mediated divorces could be raised to new levels. There may be significant financial implications and the last thing that most people want is to find themselves embroiled in protracted disputes with the UK immigration or tax authorities.
What should the family mediator do?
The correct “advice” that is invariably given by a family mediator namely that he or she is not a substitute legal adviser and that as part of the mediation process advice must be sought from an appropriately qualified lawyer or financial adviser assumes a new significance. The mediator may well find that one of the parties to a mediation is in a quandary over UK residential status and will also be firmly urged to take immediate advice from an appropriately qualified immigration lawyer.
Beyond this what can a family mediator such as Austin Chessell and a financial adviser such as Henry Elliston, both ASM Plus associates, offer where there are nationality issues to address?
Given the difficult scenarios that they have to deal with, family mediators such Austin are very adept at helping their clients to achieve mutually and legally acceptable resolutions or their difficulties.
It is possible for instance that with the benefit of the family mediator facilitating discussions and the parties engaging with and listening to one another that they may agree that divorce proceedings should be put on hold. Equally, if one party does have to leave the UK, mediation provides ample opportunity for arrangements to be implemented so that children of the union can maintain regular contact with both parents.
Additionally, there will be some complex financial considerations that Henry is very well placed to address.
Accordingly, aside from the usual very valid advantages of family mediation including timeliness, cost effectiveness, flexibility and the possibility of creative and imaginative outcomes, in cases where there is a nationality element, it will be required even more now than it was before.
One particular family mediation USP is that it brings out the best in people, even in the potentially very difficult circumstances outlined above. In rising to the challenge that such issues raise I have no doubt that this will be amply demonstrated.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.