What Does Habitual Residence Mean?
In this blog, children and child abduction solicitor, Louise Halford, looks at what habitual residence means and why it is important in children law proceedings, and in applications for child arrangement orders and disputes over parental child abduction.
For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form.
Why is your child’s habitual residence important?
For international families the legal concept of habitual residence in children law is important. If your child is classed as habitually resident in England, then the court in England and Wales will have the jurisdiction to decide where your child should live, who they should have contact with and whether they can live overseas.
A child’s habitual residence can be complicated because a child can be habitually resident in the UK even though the child is not a British citizen and nor are their parents. If your family is in the UK on a work visa or family visa or dependant visa, your child may be habitually resident in England.
If you are planning to leave the UK with your child it is best to speak to a children law solicitor to see if your child may be habitually resident in the UK and to understand the steps you need to take to legally take your child out of the UK.
If your child is habitually resident, and you don’t follow the correct steps and procedures before leaving the UK with your child, then you could be committing a child abduction offence. The English court could order that your child is returned to England so the English court can decide on where your child should live.
What does habitual residence mean?
Put simply, habitual residence means where you normally live. A child can be habitually resident in a country even though the child’s parents don’t live in that country.
Habitual residence does not have anything to do with your nationality as you don’t need to be a British citizen or have indefinite leave to remain to be habitually resident in the UK. It is a question of fact.
When assessing if a child is habitually resident in England, a child abduction solicitor or children court will look at how integrated the child is. For example, does the child go to school in the UK? Is the child enrolled at sports or other leisure groups in the UK?
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What happens if my child is habitually resident in England?
If your child is habitually resident in England then the English court has jurisdiction to decide where your child should live if there is a dispute with the other parent.
Under English law you can't take a child to live overseas without the agreement of the other parent and the consent of anyone else who has parental responsibility for the child. If you can't get written permission you can apply to court for a relocation order. If you leave the UK without a relocation order or written consent then you could be accused of parental child abduction and your child could be made the subject of a return order.
The law may seem bizarre to some parents, especially when you are intending to return to a home country or a country where you have strong family or other ties. However, children law solicitors recommend that you get legal advice on the meaning of habitual residence and how the legal concept may affect you and your family and the children law order solutions available to you so you can go ahead with your plans to leave the UK with your child.
For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form.
Louise Halford
Feb 10, 2016
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4 minute read
Should I Sell the Family Home Before or After my Divorce?
Taking the decision to separate may mean you want to ‘hunker down’ and not make any decisions about divorce financial settlements and the family home. Others may want to get the family home on the market and sold so they can make a fresh start, unhampered by the memories associated with the property.
In this article, divorce financial settlement solicitor, Robin Charrot, looks at the options of selling the family home before or after your divorce.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
Selling the family home – getting the timing right
The important thing is to not rush into making decisions about the family home as whilst your instant view may be that you want to move because of the marriage breakdown, or you want to stay because the children’s school is nearby, feelings and circumstances can change over time.
There is no right or wrong answer about whether to sell the family home before or after your divorce. A lot will depend on your circumstances. For example, if you are in a six bed property with grounds and the children have grown up and left home, the separation may be the push to sell the family home and to do it now rather than wait until after the divorce.
Your views on the timing of the sale of the family home may be influenced by whether you think the property boom will end or not. If you are in the camp that thinks the UK is heading into a recession and a housing market crash, you may believe it is better to sell up now, rather than wait. Waiting may not be in your best interests if you will end up downsizing in a property slump.
A divorce financial settlement solicitor can help you look at your options to try and work out which one suits you best.
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Things to consider about the timing of the sale of the family home
There are loads of things to weigh up when you are debating about whether to sell the family home before or after your divorce. Here are just a few:
If you sell up, will you buy another house straight away or rent? Is renting a more expensive option or is it best in your situation as you will then be chain free when you find something else to buy
If you get off the property ladder by selling the family home, do you risk pricing yourself out of buying the house you want if property prices continue to rise?
Is the family home mortgaged? Is a preferential mortgage rate due to expire? Can you transport an existing mortgage to your new property? Will you be able to get another mortgage if you have recently started a new business or because of other changes in circumstances?
Is it too early to sell up until you know the value of all the family assets, such as pensions or the family business? You may prefer to stay in the family home by offsetting the value of other assets
Until you have more information about your partner’s income and your earnings capacity you may not know if you can afford to stay in the family home with your anticipated income and the potential for spousal maintenance payments
If the family home is owned in joint names, or your sole name, your ex-partner could refuse to cooperate with the sale of the family home until a financial court order is made. If the house is owned by you, your ex-partner could place an objection at the land registry to prevent a sale or remortgage. Alternatively, they may only agree to sign the sale paperwork if you both agree that all or a percentage of the net proceeds of sale are retained in a solicitors account until you have reached a full divorce financial settlement when the sale proceeds will be divided in accordance with the financial court order
Sale or delay
Sometimes people are anxious to sell up because they cannot cope with continuing to live with their ex-partner at the family home as the divorce financial settlement process is taking too long. A divorce financial settlement solicitor can:
Advise on whether you have the grounds to apply for an injunction order so you can stay at the family home until the court decides if the family home should be sold. This is known as an occupation order or ouster injunction
Help you understand the range of financial settlement court orders the court could make in financial settlement proceedings to assist you in reaching an agreement in family mediation or by through solicitor negotiations
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form
Robin Charrot
Oct 19, 2015
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5 minute read
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