The international news has been dominated recently about “Brexit”, namely the outcome of the referendum in the United Kingdom in favour of leaving the European Union by 52% to 48%.

As someone who grew up in England and remains a British citizen, I’ve been paying particularly close attention, not simply because of my background but because the result seems to be a real game-changer on many levels.

To get a few basics out the way:

  • The EU is a political and economic union of 28 member states located in Europe with a population of approximately 500 million.
  • Under a slightly different guise, the EU was formed as a customs union of 6 countries in the aftermath of WW2 in the 1950s and has gradually expanded since then, both in its scope and size. The UK joined in 1973, supported by a national referendum in favour of remaining in 1975.
  • EU policies aim to ensure the free movement of people, goods, services and capital within the internal market and maintain common policies on trade, agriculture and fisheries. A single currency came into force in 2002 and 19 EU member states now use the euro currency.
  • The institutions of the EU include a legislature (the European Parliament and the Council of the European Union), an executive (the European Commission and the European Council), the Court of Justice of the European Union and the European Central Bank.

What does this have to do with a divorce? Well, this is no short-term relationship where you can unfollow, delete and move on. It’s more like a 40-year marriage in which neither spouse ever truly loved each other and where both often tested the boundaries with various acts of defiance.

However, despite those tensions, the relationship generally achieved the shared goals of peaceful co-existence, economic prosperity and improved living standards for its citizens.

However, one party has now asserted they want their “independence” back and so the marriage has run its course. But now comes the difficult part, namely unravelling the terms of their deep-rooted and complex relationship in practical terms.

In other words, the terms of the UK’s exit and their future relationship with all aspects of the European Union is still to be decided. There’s a formal legal process called Article 50 but that’s never been used, and when it was created nobody thought anyone would ever want to quit the European Union so it’s pretty vague.

The UK’s exit will need to be negotiated with the remaining 27 members of the EU and ultimately approved by them. Although the negotiations are meant to be completed within two years many believe it will take much longer for country UK to actually leave the European Union. The most significant issues to be discussed are:

  • The terms of withdrawal from the EU’s infrastructure, including settling any outstanding debts;
  • The nature of the UK’s relationship with single market in future i.e. the trading arrangements between the 2 entities;
  • The nature of the UK’s withdrawal from the freedom of movement of people e.g. the migration arrangements between the UK and the rest of the EU for their respective citizens – including the three million or so EU nationals currently living, working, studying in the UK and the two million or so UK nationals currently living, working, studying in the rest of the EU.

If the Article 50 process operates like a traditional, litigious divorce then we’re likely to see both camps adopt positions that directly conflict with the other side’s position on these issues, leading to a “zero-sum” game i.e. assuming that the more the other party gets, then by definition the less they will receive.

I’ve already noticed that battlegrounds are being drawn along these lines by politicians on both sides. For instance, noises from the EU suggest they will only offer the UK an unfavourable, even punitive, deal to deter other would-be states from agitating to leave the organisation as well. On the British side, some of the early rhetoric sounds unrealistic with the suggestion in some quarters that the country can retain all the benefits of the EU without any of the costs

If this plays out, the negotiations are likely to be lengthy, hostile and may leave both parties quite unhappy by the eventual outcome.

However if the Article 50 process operates like a collaborative law process, it would firstly acknowledge that despite the end of the “marriage”, each party still have much more in common than divides them. For example, they both want economic growth, competitive markets and the ability of their citizens to work and travel overseas. They’re also committed to ongoing cooperation in relation to security and intelligence matters.

The collaborative law process would then encourage the parties to adopt an “interest-based” approach to the negotiations instead of adopting a “rights based” approach. This is a more sophisticated form of bargaining that addresses the underlying values and goals of both parties which can help them to reach more creative and far-reaching solutions in a more amicable manner.

By way of example, the EU might recognise that immigration concerns played a big part of the “leave” side of the referendum in the UK and is a politically sensitive issue for the country. So instead of insisting on more flexible visa laws it might be more fruitful to focus on, say, mutually favourable trading arrangements.

Although the issues will remain complex and difficult, a collaborative approach is more likely to lead to a happier result for both sides and a more workable relationship for both the UK and the EU into the future. Given that the distance from Dover to Calais is going to stay at just 33km (not to mention the Northern Ireland/Republic of Ireland border), whichever deal the politicians come up with this, surely this is important. Time will tell.

For further information about collaborative law or other family law matters please contact Farrar Gesini Dunn.