BREXIT IS CAUSING a great deal of uncertainty in many areas of society and trying to get a divorce is one thing that could become a lot more complicated and expensive once Britain leaves the EU.
If an Irish resident is married to someone who lives in the UK, the legal framework from Brussels clearly sets out the process to be granted a legal separation.
However, once Britain leaves the EU, this legal framework will no longer apply and that will be problematic in family law cases, according to Keith Walsh, a solicitor who chairs the Law Society’s family and child law committee.
He told TheJournal.ie: “There’s no benefit to this [Brexit]. At the minute, we have certainty. It’s a complete disaster.”
The legal provisions in place from the EU, called Brussels II, currently govern issues of divorce, separation, annulment and parental responsibility.
Walsh gave this example of how it works in practice: “So go back a few years. There was a lot of emigration from this country. If I had gone to live in London, married an English woman, had a few kids, we separated and I came back to live in Dublin.
Once I was habitually resident here, and I wanted to seek a divorce, I’d go to my solicitor. Whoever goes to court first decides where the case will be heard. So, if I went and initiated court proceedings before she did, then the case would have to be heard here.
The solicitor said that there are a number of advantages to that system, if you’re the one who takes the matter to court first.
“Where it gets decided is really important,” Walsh said. “Divorce law is very different here for example. And it would cost a fortune to fight a case in London as opposed to here.”
He cited several recent cases where clients seeking to legally separate from a spouse living in England chose to initiate proceedings in Dublin, and this resulted in a positive result for his clients.
Walsh said: “The difficulty and cost for Irish people is once Britain leaves the EU, that [Brussels] convention won’t apply anymore.
Now, we’re going to have to have a fight about where we have the fight.
He said that having this court fight will come at a cost to people even before a potentially costlier future court battle.
“And that’s just a waste of time,” he said. “A person with more money can fight that fight. Most normal people can’t. That’s where Brexit is going to have a big impact.”
In its position papers on Brexit, the UK government expressed a willingness to retain certain legal ties to the EU but the latter’s hard stance in the negotiations could mean that Britain won’t be able to have its cake and eat it when it leaves the bloc.
Walsh said: “And we’ve been talking about Dublin and London. It’ll be worse when it’s Derry and Donegal. The same issues would apply.
Then there’s a fight in Letterkenny or Derry over where we have the fight. There’s a whole range of counties where it wouldn’t be unusual to cross the border for work and things like that. Brexit is going to cause so many issues between the UK and Ireland, and this is just one example.
“The point really just is uncertainty. These are people’s lives. If you don’t solve these problems, your life is being stunted. It impacts everything.”
Handbook
Walsh chaired the Law Society committee which recently launched a new code of conduct for family law solicitors.
The previous code was published in 2008 and, according to Walsh, it’s not only Brexit that has shown the potential to completely change how family law is conducted in Ireland in the past nine years.
“We had the financial crash,” he said. “And anyone who bought a home after 2002 was going to feel the effects of that.”
He also cited a whole host of legislative changes on civil partnership, recognition of people living together outside of marriage and the referendum on the voice of a child as some of the main factors that have changed how family law operates in Ireland.
Walsh said: “Previously, [the laws] were rooted in the 19th century. Now, we’ve skipped the 20th century altogether and gone straight to the 21st.
Our family outside marriage laws are now far more progressive than the UK for example. We have a modern family legal regime.
He added that the most complex cases aren’t ones involving adultery, or difficulties with children. “The ones that take the most court time are those with complicated financial issues,” he said.
This could involve homes in negative equity, or self-employed people who are involved in running businesses.
“These complications would have caused a huge number of people to stay under the same roof where the marriage is over,” he said. “You can’t get on with your life. Living in a house where the relationship is over is not good for children either.
“But then another problem has come up again in recent years, particularly in Dublin. It’s where you rehouse yourself. Clients are worried that they won’t be able to pay rent. The reality is they can’t. Nobody these days can afford to keep two houses. It’s a very difficult position to be in.”
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