How to (successfully) divorce the EU
Like the end of a marriage, leaving the union requires tricky negotiations, deals and a lot of patience, finds Rosa Silverman
Observing Britain’s excruciating efforts to extricate itself from the European Union puts one in mind of a particularly troublesome divorce. The comparison has been made already – they don’t call it the Brexit divorce bill for nothing – but the longer the process drags painfully on, the more tempting it is to call up a good divorce lawyer and ask them to step in to sort out the whole mess. So we did.
Ayesha Vardag, who’s been named as one of Britain’s top divorce lawyers, agrees there are plenty of parallels, and offers some transferable advice for anyone currently negotiating their way out of a marriage – or an alliance of 28 countries. Here are the five stages of the process:
The marriage breakdown
In the case of Britain and the EU, it had been coming for a good 30 years. Still, everyone might have continued to rub along, burying their differences for the sake of the benefits of membership, were it not for the little matter of that pesky referendum.
The result, suggests Vardag, was akin to one person yelling that they wanted a divorce, only to step back once it’s been agreed, with a sense of “my gosh, did I really do that?” British electorate: yes, we really did. And the EU could be forgiven for feeling a little jilted.
“Divorces start out in one of two ways,” says Vardag. “Either you’ve got someone who says, ‘I’m mad as hell, I want to take him to the cleaners. I want to punish him so I’m going to be really bloody-minded about this.’ Or, as Ivana Trump once said, ‘Don’t get mad, get everything.’ And you could say that was the initial stance of the EU towards Britain.”
The other tack, she explains, is the conciliatory one: the one Vardag describes as the “let’s be really lovely and friendly about this because we still have the utmost respect for each other and don’t want to waste lots of money” approach.
Britain seems to have zigzagged between the two. But we still expect the EU to treat us with respect, mind.
The transition period
So you’ve agreed you’re getting divorced – but you’re still living in the same house. Awkward, right? Both parties have lawyered up, the battle lines have been drawn, but you both still eat food from the same fridge.
You might sleep in separate beds now – or, in the case of Theresa May and her EU counterparts, dine separately – but maintaining a polite facade is necessary since you haven’t yet carved up the assets, or your time with your offspring.
This part of a divorce can endure for quite a while, says Vardag, but being patient is crucial while the relationship is in these early stages of flux. Remember, this hinterland is new for all parties, so try to have a little understanding for the fact they may be finding things just as tricky as you are. Keep it cordial and accept that extended transition periods can be frustrating but necessary.
The negotiations
“You’ll only negotiate when people are really ready,” says Vardag. “You hope you won’t have pointless talks before then.
“You have to come with a realistic offer so we know you’re ready to negotiate, but if things aren’t rigorously managed you can end up with endless chat and people posturing and not getting anywhere at all.”
Taking a strong position at the outset is advisable – “it’s the iron fist within the velvet glove; saying, ‘I want to do this nicely but if we can’t, I have it in my power to make things go my way.’”
But equally important is a willingness to cooperate and a positive attitude towards reaching a deal, she stresses.
And the “no deal” option? Not a great idea, but it must be on the table so the other side knows you’re serious. “It’s really worth working hard to strike a deal,” says Vardag. “But you must always set out from a position of strength.” And if it comes to it, “you have to be ready to walk away from the negotiating table and go to court.”
Or, to paraphrase, your ex must be led to believe that no deal can be better than a bad deal.
An added complication often can be that the more hurt people are, the more difficult they are in the process, Vardag notes.
But using things you both care about as pawns – the children, say; or defence and security – is “ultimately very bad for everyone. What actually matters a lot to both sides can be destroyed with that vindictive approach, so it’s very important for both sides to keep the focus on other matters for their future relationship.”
The deal
Everyone wants to get it done so they can move on with their lives, says Vardag. Preventing the nuclear option – the divorce courts – is possible through sensible negotiation and laser-focus on a workable compromise. Shouting “no surrender” and gnashing your teeth seems unlikely to achieve this outcome, however.
In divorce battles, sensible lawyers aim to talk their clients down from extreme positions, says Vardag. (“Looks like you might have to accept your ex’s freedom of movement once she’s no longer, you know, married to you.”)
It’s in everyone’s interests to get a deal done, she suggests, as the two parties in a divorce quite often wish to continue co-parenting their children.
We can extrapolate from this that it’s probably not in Britain’s interests to storm out of Brussels screaming, “Sod off and enjoy your ever-closer union, we never loved you anyway! And we’re not giving you £39billion when we know you’ll just fritter it away on expensive handbags.”
The future relationship
Everyone wants to move on with their lives, but if they have children together – or wish to trade with each other, for instance – it is helpful to remain on speaking terms, and stay willing to work as one.
Second chances – or referendums, meanwhile – are unlikely. “We have had people change their minds but it’s not that common,” says Vardag. “It’s as if the further people go down the path of divorce, the firmer they become in their stance.”
Bad news for Remainers all round. This marriage, it would seem, is done for.
But that doesn’t mean we can’t remain friends. Maybe.
‘It’s worth working hard for a deal, but you must set out from a position of strength’