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Henry Brookman identifies some of the potential pitfalls in a recent European Commission proposal. Published in Times Online.

The European Commission has recently published a proposal relating to EU-wide rules on property rights for married couples. Unfortunately, the proposal appears not to take into consideration the real and practical situations faced by couples in England and Wales.

The proposed regulation aims to create a ‘uniform’ set of rules across EU countries relating to married couples’ property. This more standardised approach may appear a logical approach, but is actually littered with potential pitfalls for UK couples.

To some extent, the proposal seems to be remedying an issue that does not actually affect married transnational couples who live in England or Wales. The proposal states that a large number of transnational couples face difficulties both in the daily management of their property and in the division of that property if the couple separate. But in Brookman’s experience of transnational couples living in England or Wales, this is not the case. Couples in a functioning marriage rarely have problems managing their property. Instead, problems occur in relation to recognising and enforcing divorce settlements.

The European Commission’s proposal goes on to say that the only way to address the issues it raises (however questionable those issue may be in reality), is to have “common rules on matrimonial property regimes” across countries. But in English law there is no such thing as a matrimonial property regime.

‘How do UK marriages differ from those in wider Europe’

In most continental jurisdictions, couples at the time of marriage choose their ‘matrimonial property regime’, i.e. whether they will hold their property as separate property, hold the property jointly or make tailor made arrangements. This is simply not how it works in England and Wales – here a person owns what they own and they can deal with it how they wish.

Under the new regulation, UK couples would have to choose their matrimonial property regime. We would then face the prospect of spouses in England and Wales having to make a conscious decision and enter into written agreements at various points throughout their marital life to state what ‘marital regime’ applies to their property. Then they will be stuck with a very rigid set of rules governing their divorce.

How could the proposal affect divorcing couples in the UK?

Unsurprisingly, these new proposals could have far reaching financial consequences for divorcing parties in England and Wales. The most startling example of the impact would be where the law of the country that a couple first lived in would govern their divorce settlement: conceivably an English couple who first lived in Cyprus but returned to England after some years, may find that Cypriot law would still govern their divorce. One party could end up with nothing.

These proposals reveal a woeful misunderstanding of the marital system in England and Wales. The European Commission has put forward concepts which simply do not make sense in jurisdictions where there is no such thing as a marital regime before a divorce. This is a fundamental mistake.

One hopes that the UK will reject the proposed regulation. Meanwhile though, we would strongly advise that couples with an international element to their property consider whether a nuptial agreement may be useful to protect their property rights.

If you would like to know more about this issue please contact Brookman Solicitors for more information.

EU set to make divorce more complicated for transnational couples

Date: April 28th, 2011 - Written by: Brookman Solicitors

Henry Brookman identifies some of the potential pitfalls in a recent European Commission proposal. Published in Times Online. The European Commission has recently published a proposal relating to EU-wide rules on property rights for married couples. Unfortunately, the proposal appears not to take into consideration the real and practical situations faced by couples in England… Read the full article

Who has the legal right over jewellery purchased as a ‘gift’?

Date: April 9th, 2011 - Written by: Brookman Solicitors

Henry Brookman provides the answer to a Financial Times’ ‘Wealth Question’ regarding who ultimately owns jewellery that has been purchased by a spouse for their partner. A brief history Dating back to before the 1870 Married Women’s Property Act, the presumption was that jewellery purchased by the husband had been lent to the wife “for… Read the full article

International Divorce – What Are The Issues?

Date: March 24th, 2011 - Written by: Brookman Solicitors

Henry Brookman explains how different countries’ rules vary regarding divorce, prenuptial agreements, child custody and financial matters.  Published in The Telegraph Online. When people go to live in another country they are often preoccupied with matters relating to their employment and their living arrangements. However, what they often do not consider is the extent to… Read the full article

Till Death Do Us Part?

Date: February 24th, 2011 - Written by: Brookman Solicitors

What does marriage really mean these days?  Do people always get married for the right reasons and do most people seriously consider that they will be spending the rest of their days with their betrothed? Short marriages seem to be even more common these days, especially in high profile and high net worth cases.  Worryingly… Read the full article

Divorce In England And Wales – Your Questions Answered

Date: February 17th, 2011 - Written by: Brookman Solicitors

Brookman provide answers to some of the frequently asked questions regarding divorce in England and Wales. Published in Independent Practitioner. Q1: Is there such thing as a ‘quickie divorce’ It is possible for the divorce process to take between four-and-a-half and six months if there are no assets to split. However, it is the process… Read the full article

Prenuptial Agreements – Future Changes In The Law?

Date: January 20th, 2011 - Written by: Brookman Solicitors

Henry Brookman contributes to an article about potential future changes in the law for prenuptial agreements. Published in The Lawyer. It is now being reported that 43 percent of first marriages end in divorce in the UK, which is the highest level it has ever been. Even though this issue affects many people, successive governments… Read the full article

Can Social Media Cause Divorce?

Date: January 12th, 2011 - Written by: Brookman Solicitors

Over the last twenty years, communication between people has gone from being relatively private (by letter or phone call) to being very public (such as via Facebook and Twitter).  Depending on the settings of a person’s Twitter or Facebook account, their online comments could be viewed by all their online friends, or very possibly, viewed… Read the full article

Could Hong Kong Be The Next Divorce Hotspot?

Date: November 22nd, 2010 - Written by: Brookman Solicitors

The Times reports on a recent divorce judgement in Hong Kong that could see future financial settlements in the jurisdiction divided equally. Until last week, divorce settlements in Hong Kong were typically decided on the basis that the wealthier partner would keep any surplus after the weaker partner’s financial needs had been met. This meant… Read the full article

Radmacher v Granatino – The Impact On Future Pre-Nups

Date: November 17th, 2010 - Written by: Brookman Solicitors

Talitha Brookman discusses the recent Radmacher v Granatino case and its likely impact on pre-nuptial agreements in the future. Published in Knowyourmoney.co.uk. Historically in England and Wales, pre-nuptial agreements may have been persuasive in helping the Court make a final decision regarding a financial settlement. However, the Court had the discretion to disregard the pre-nuptial… Read the full article

Are grandparents legally entitled to gain contact with their grandchildren?

Date: November 11th, 2010 - Written by: Brookman Solicitors

We live in stressful times where most parents have to work to support their children. Loving grandparents are a great asset to any family under such circumstances, often providing invaluable care, support and guidance for children during working hours. 60% of childcare in the UK is provided by grandparents, according to statistics released last year… Read the full article


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Wim Jansen 24/06/2020

I contacted Brookman to ask for information regarding the validity of an international divorce court ruling. They were very quick in providing me with the right information. When I had another question a few months later around children matters I phoned them again and after taking some background information and contact details they booked me in for a free telephone consultation with 1 of their partners Talitha Brookman. She spent half an hour of her time explaining to me what I could expect and provided legal advice. All was free of charge. I would not hesitate to contact them again should any matter become more formal and have to go through court. The service has been quick, professional and very friendly.

Rebecca Brown 01/06/2020

Highly recommend this firm. Having searched around different firms for advice for some time, I had a free consultation with Henry Brookman. He was incredibly knowledgeable about my complex situation, gave straightforward advice and empowered me to understand exactly how I need to proceed.

Nik Carter 10/05/2020

I recently had a free initial consultation with Henry Brookman via video conference. He was considered and meticulous in his approach and gave me well thought through advice. He followed this up with a letter in writing summarising the advice he gave me. I would thoroughly recommend his services to anyone looking for legal representation in a divorce.

Sarah Jones 02/05/2020

Henry was extremely helpful and pleasant to speak with. He provided comprehensive advice in a matter of hours and responded promptly to any queries I had. I would highly recommend speaking with him.

Shazan Awam 19/04/2020

Very helpful and thorough advice. Highly Recommend!