At the end of 2016, shortly after the UK had voted for Brexit in a referendum, I wrote a blog for the Law Institute of Victoria comparing the forthcoming negotiations between the UK and the European Union to a potentially messy divorce case. As someone who grew up in England and remains a British citizen, I’ve been gripped by the twists and turns of Brexit. Given the latest schmozzle – what you might describe as a “dog’s Brexit” – it’s a perfect moment to reflect back on what I said about 2.5 years ago.
To begin with, what does Brexit have to do with a divorce anyway? Well, it’s no short-term relationship but more like a 40-year marriage in which neither spouse ever truly loved each other and where both tested the boundaries. However, after the separation, came the difficult part – unravelling the terms of their deep-rooted and complex relationship. When I wrote my earlier blog the terms of the UK’s exit and its future relationship with the EU were still to be decided but they were about to enter a formal legal process called Article 50 whereby the UK’s exit would be negotiated with the remaining 27 members of the EU.
I forecast that if the Brexit process operated like a traditional, litigious divorce then we were 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. For example, the EU might offer the UK an unfavourable deal to deter other states from agitating to leave the organisation. On the British side, some believed they could retain the benefits of the EU without any of the costs. I said if that played out the negotiations were likely to be lengthy and hostile. As it turned out, after a torturous 2-year period, Theresa May and the EU were finally able to sign off a divorce settlement in November 2018 AKA a Withdrawal Agreement.
However, that’s when Mrs May’s problems really began. To ratify the treaty she still needs to get it approved by the Westminster Parliament, and it’s her failure to do that, which has led to the current constitutional crisis. If the British PM had read my blog the first time she might have picked up a few pointers…Rather than adopt a “my way or the highway tactic” I warned of the dangers of trying to impose or force solutions on other parties. Negotiations are always more effective when a leader – or a divorcing spouse – puts themselves in the shoes of the other party, focuses on everyone’s underlying interests and not just positional statements or demands, and realises that people usually have more in common than divides them.
Unfortunately, in her dealings with Parliament, Mrs May has taken a winner takes all attitude, shown little flexibility and attempted to gain from bullying and cajoling her colleagues rather than persuading. Whatever the end result, I can guarantee that no side is going to feel happy.
Exactly the same principles apply to a traditional divorce settlement which is why I constantly encourage clients to reach their own agreement in a respectful and dignified manner through processes such as mediation and collaborative law. A more amicable process is not only more pleasant but ultimately means a much better outcome. Whilst the belligerent approach to Brexit will inevitably lead to years of mutual resentment and ongoing disputes, a family law breakdown handled in a sensible way allows parties to achieve both a good result and a clean break, significantly quicker and cheaper than stressful and acrimonious litigation.