Once you have decided to divorce your husband or wife the next question you may need to consider is whether to get divorced in the UK or abroad.
If you or your spouse has links to more than one country it may enable you to exercise a choice about the country where divorce proceedings are started. That decision could have a major impact on the amount you either pay or receive as a divorce financial settlement. That’s why it is vital to get specialist help from a divorce law solicitor before your spouse takes the decision away from you and starts their own divorce proceedings in their country of choice.
For expert advice on divorce and family law call our team of specialist divorce lawyers or complete our online enquiry form.
Divorce proceedings and the choice of country
You may be able to get divorced in England even though you got married overseas or even if neither of you is a British citizen or neither of you has indefinite leave to remain.
The law says that to get divorced in either England or Wales either you or your husband, wife, or civil partner need to meet one of these criteria at the time you start divorce proceedings (or dissolution of civil partnership proceedings):
You are both last habitually resident in England or Wales and one of you still lives here or
Your spouse or civil partner is habitually resident in England or Wales or
You are habitually resident and you have lived in England or Wales for at least one year immediately before applying for the divorce or
You are habitually resident and have lived in England or Wales for at least six months before starting the divorce proceedings or
You and your husband, wife, or civil partner are both domiciled in England or Wales
Equally, even though you are a British citizen and you currently live in the UK, you may be able to start divorce proceedings elsewhere if your spouse has international links to another country.
Changing the country of divorce
In some situations (for example, where the competing jurisdictions are EU countries) if you or your spouse start divorce proceedings in one country and the other spouse contests that court’s jurisdiction then the court may decide that another country has a closer connection to hear the divorce proceedings.
That means that although speed can be important it is equally vital to talk to an international family lawyer before you start divorce proceedings in a country where there is a strong risk that the court will rule that there is a closer connection in another country.
Getting your choice of country right
International divorce solicitors recommend that advice is taken rather than assuming that you do not have a choice of country in which to get divorced, assuming that the choice of the country does not matter, or believing that England will always be the best country in which to get divorced. Sometimes people are surprised by the divorce jurisdiction options available to them and how much difference the country in which you get divorced affects the size of the divorce financial settlement.
Is it worth a divorce race to start divorce proceedings in a divorce country of choice?
The decision to start divorce proceedings shouldn’t be rushed but for some spouses delay in starting divorce proceedings can result in their spouse seizing the financial advantage by starting divorce proceedings in their choice of country. The questions to ask are:
Am I sure I want to get divorced? If you are not certain then taking the decision to quickly start divorce proceedings in your preferred country may mean it is harder to reconcile
What are the choice of countries? The choice of countries, such as whether they are all in the EU, may affect the decision on whether the speed is important
Is it likely that my spouse will be honest about his or her finances and want to reach a fair financial settlement? If your spouse probably wants to reach a reasonable financial agreement then starting early divorce proceedings in your choice of country might alienate them and make it harder to reach a financial agreement. However, if your spouse isn’t likely to be honest about the family finances then issuing speedy divorce proceedings in your choice of divorce court, where the court has strong powers to order financial disclosure and enforce financial orders, maybe in your interests
Do I know the financial implications to me of my spouse starting the divorce proceedings in the country of their choice? If you don’t know the answer to this question it is really important to get speedy help from a divorce solicitor on the potential choices of country in which the divorce proceedings could be started as well as the types and range of financial orders that could be made in each country where the divorce proceedings could potentially be issued
Is it financially worth starting divorce proceedings in my choice of country? Sometimes racing to start divorce proceedings in your choice of country isn’t justified in terms of the size of the financial award against any extra legal costs that might arise in arguing over the country where the divorce should be heard. In other situations, it can make a massive difference
International divorce and divorce solicitors
If there is potentially more than one country in which divorce proceedings could be started it is important that you choose your divorce solicitors with care. Why? Not all divorce solicitors have experience with international divorce proceedings and choice of court jurisdictions or always appreciate the need for speed to avoid your husband or wife starting the divorce proceedings in a country that isn’t favourable to you.
Choosing a specialist divorce solicitor for your international divorce
A good starting point is to find a divorce solicitor who is a member of the International Academy of Family Lawyers (IAFL), a worldwide association of family and divorce solicitors who are recognised as experts in their field in their countries of practice. At Evolve Family Law, solicitor Robin Charrot is a member of IAFL.
A divorce solicitor won’t be able to tell you the exact divorce laws and the difference in approach to financial claims on divorce in Australia, South Africa, or the Middle East but they will be able to readily obtain expert opinions and advice from fellow members of the International Academy of Family Lawyers because they know the right questions to ask and are used to obtaining speedy expert divorce advice in international divorces.
For expert advice on divorce and family law call our team of specialist divorce lawyers or complete our online enquiry form.
It is trite to say that the world is getting smaller but when it comes to family law, it is true as there is an increasing number of UK families with connections to more than one country. That has led to a rise in the number of requests for help from families with international family law concerns or requiring advice on an international prenuptial agreement.
For expert family law advice call our team of specialist family lawyers or complete our online enquiry form.
International prenuptial agreements
As specialist family law solicitors with many years of experience in preparing prenups and postnuptial agreements, we have seen an increase in inquiries about nuptial agreements with an international element, not just from couples who are based in Manchester and the North of England, but also from couples who are based in London and the South East of England wanting expert advice at a competitive cost. That increase in inquiries is down to the following trends:
The number of UK residents meeting and marrying partners from other countries
The number of couples who own assets overseas such as a holiday home or a business based abroad
Couples who are UK based but whose families or family assets are based abroad; normally their families are passing some of their wealth to the marrying couple (to give them a financial head-start, or for tax planning reasons) but the families realise that this wealth is vulnerable to divorce without a prenup in place
The number of people who are a beneficiary of an offshore trust
The number of overseas families who have settled in the UK but already have a prenup in their country of origin or in the country where they hold assets
The law on international prenuptial agreements
Although the world is getting smaller divorce law has not been globalised. Divorce laws, practices, and procedures vary widely from country to country. The unwary can therefore falsely assume that having signed a prenup agreement in country A that their agreement will be binding in their spouse’s country of origin B, or if they decide to emigrate to country C.
Whenever the prenuptial agreement solicitors at Evolve Family Law are asked to prepare a prenup it is important to ask the right initial questions. For international prenups the questions should include:
Country of domicile for both parties to the marriage. This can be different from the country the engaged couple lives in as it is a complex legal concept
Countries where any existing assets and property are located
Countries where any future assets and property are likely to be located
The country or countries that one or both of the couple may relocate to in the future, for example, the plan may be to spend a lot of time in the Florida holiday home
To add to the complexities of advising on prenuptial agreements it is important to remember that Scotland, Ireland, the Isle of Man, and the Channel Islands all count as separate countries.
If the answers to any of these questions reveal a foreign connection, it is really important to work out which country the prenup should be based in. For quite a few prenuptial agreements the answer is not England.
Getting international prenuptial agreements right
Family lawyers should not be wedded to their own jurisdiction and assume that a prenuptial agreement should be prepared in England as that is not necessarily the best decision for a client. It can make a massive difference to how assets are divided if a couple split up without having either signed a prenuptial agreement or if they did not get an agreement prepared in the country that best suits their international links and circumstances. That’s because in some countries prenup agreements are treated as legally binding and in others they ‘are not worth the paper they are written on’.
Even if England is the right country for the prenuptial agreement to be prepared in, it is important to think about whether a ‘mirror’ prenup agreement is needed in the other countries the couple are linked to, or at least having a specialist family lawyer in that other country having some input on the wording of the prenup, so that the agreement is executed in accordance with the relevant local law and the agreed country for choice of jurisdiction is recognised.
Is an international prenuptial agreement worth signing?
With or without international aspects, our family law solicitors are asked if it is worth signing a prenuptial agreement. Invariably the answer is that a prenup is a sensible piece of relationship planning: No one who is getting married thinks their marriage will fail, but almost half do. It is also really helpful for the couple to think properly about their future financial security if things do go wrong. Also, the English divorce courts now rarely go against a prenup that has been put together in the right way.
Preparing a prenup includes an element of speculation as who knows what may happen in relation to the couple’s future life together. However, it is normally possible to build in enough flexibility to deal with life changes. If life takes an unexpected course, such as a return to the UK after a marriage abroad with a foreign prenup, it is as well to dust off the document and get some advice on whether it remains fit for purpose.
For expert family law advice call our team of specialist family lawyers or complete our online enquiry form.
We are delighted to highlight that some good news has come out of Europe. New EU regulations have been set out to help protect children and parents involved in cross border child custody and access disputes.
Protecting children in cross border disputes
On the 25 June, the Council of the EU adopted a revision of a regulation setting out rules on the jurisdiction, recognition and enforcement of decisions in:
Parental responsibility matters;
Intra-EU child abduction
The council said that one of the main objectives of the revision to the EU regulation was to improve the current protection that EU directive gives to children in cases of cross-border children disputes, for example:
Custody (nowadays referred to as residence or a child arrangements order in the UK );
Access rights (nowadays referred to as contact or a child arrangements order in the UK );
The focus of the new EU regulations is to ensure when resolving cross border children disputes involving more than one EU country that :
The focus is on what is best for the child;
Judicial co-operation between EU countries is faster and more efficient to make sure the child’s well-being comes first. It is anticipated that speedier court decisions will be made through abolishing the requirement for an exequatur (an intermediate procedure required to obtain cross-border enforcement).
People often assume that EU law will not affect them and their families but statistically there are about 140,000 international divorces per year. It is reported that there are about 1,800 cases of parental child abduction in the EU. The number of international divorce cases rises each year as people become increasingly mobile because of work and travel opportunities.
With the update of the Brussels IIa Regulation, the intention is that a child abducted by one parent from an EU country and taken by the parent to another country within the EU will be returned much faster to the country where he or she is used to living in.
Top Manchester children solicitors have welcomed the new EU regulation but have issued a note of caution. UK families caught up in EU cross border disputes will only get the protection and assistance of the new regulation whilst the UK remains in the EU. Subject to Brexit, the additional protection may be short lived. That will not stop child custody solicitors from fighting to reunite parents and children caught up in cross border child custody and access disputes.
The top tip if you fear child abduction or need to enforce a UK custody or child arrangements order across different border jurisdictions is to take early specialist child custody legal advice on your options and to act quickly.
For legal help with child custody and access or child abduction please contact us
For one mother there was a happy ending, all thanks to the Court of Appeal. The appeal judges decided to reverse an earlier Court’s decision that said two children should be returned to the USA whether or not their mother could get a visa to re-enter the States.
The family Court appeal made all the difference.
The family Court appeal centred on whether two children, age 5 and 3, should return to their country of birth, the USA, at their father’s request under a Hague Convention Court application. The mother had taken the children to England, the country of her birth, without a USA Court order or the father’s agreement, after marriage difficulties made her conclude that she and the children should live in the UK. If the mother had realised the complexity of the immigration issues facing the father and herself she may well have thought twice and not taken the children out of the USA.
For the children immigration wasn’t a problem as they had dual citizenship, having been born in the States and having British citizenship through their mother. The children’s Pakistani father was classified as an illegal over-stayer in the USA and if he decided to come to the UK to challenge Court rulings or to see the children he faced not being able to get back into the States, a country that he had called home from the age of 12. For the mother, as a British citizen who had entered the USA on a temporary visa and married the father in the States, it was unlikely she would be able to get a visa to go back to the States.
The situation of both parents was stark. If the father ‘won’ his Hague Convention application and the Court ordered the return of the children to the States to enable the USA Court to decide on what was in the children’s long term interests, then the mother was unlikely to get a visa to go back with them. The High Court ruled in the father’s favour and the mother felt she had no alternative other than to appeal.
The Court of Appeal then faced the dilemma of deciding if the children would be exposed to a grave risk of harm if returned to the USA under the Hague Convention. The mother ran this argument as there are limited defences available to try and stop a Hague Convention ordered return. The Appeal Court concluded that the children could not be removed from their primary carer despite the fact that the mother had created the situation that the family found itself in and even though the Appeal Court decision made contact between father and children problematic given his precarious immigration status in the USA.
The family circumstances may appear unusual but as a child abduction solicitor I often have to investigate the immigration issues that arise after a child has been taken out of or has entered the UK and present the best possible evidence on immigration status and attachment. It is vital to do so as immigration status can be the key to the Court decision, as it was in this case as the children’s attachment to their mother as their primary carer, meant they would be at risk of harm in returning to the States without her. Would you risk it? The High Court decision, reversed by the Court of Appeal, shows just what a risk was taken. Sadly though there are no winners or losers in this family situation as the father now faces the same immigration dilemmas and difficulties in seeing his children.
For help with child abduction or children law please contact us
In the immediate aftermath of a parental separation it can feel devastating to not be there every night to read a bedtime story to your child or, if they are older, to help them with their homework. Imagine how much more difficult it is to come to terms with a separation if one parent announces their decision to move abroad with a child. It’s highly unlikely that the parent left in the UK will be able to continue to see the child each week, take the child to ballet or football practice or to be there as a taxi service after the first school dance.
I may paint a vivid picture but that is the reality for the parents I represent in child relocation applications. As a specialist children and child abduction lawyer I am in the privileged position of meeting parents and getting a snapshot of their family lives. That’s necessary to help me gain a real appreciation of why a parent is desperate to move abroad with their child or how not only a parent but the child’s extended family will be effected if a child does move abroad.
What happens if a parent objects to a move abroad?
If one parent wants to move abroad and the other parent objects there are a number of alternatives:
The parent can still move abroad – they just can't take their child with them unless they get the other parent’s agreement or Court permission;
The parent could take the child abroad without agreement or Court order – that may amount to a criminal offence under child abduction law and ultimately could lead to the child’s removal from the parent;
The parent could apply to Court for permission to take the child abroad to live or the other parent could apply to Court for an order prohibiting the child’s removal from the UK.
Even after Court proceedings have been started it can sometimes be possible to reach an agreement over whether a child should move abroad. It is my job when representing parents facing an application for a child to live in a foreign country to weigh up the chance that the Court application will be successful, and if the prospects are high, to negotiate the best contact arrangements.
How does a Court decide my child’s future?
Whether the Court is deciding on whether your child should move to France or Bermuda or if the child should live with you or their other parent the Court has to look at what the judge thinks is in the child’s best interests taking into account a set of criteria known as the ‘’welfare checklist’’.
When a judge makes the decision if a child should relocate abroad the child’s interests aren’t paramount as the Court has to consider the effect of granting or refusing the application on both parents. That is why it is so important for a solicitor to know all about family life and not only what the child will gain and lose by a move abroad but how the Court decision will impact on each parent.
A parent refused permission to take their child to their country of origin and where all their extended family still live may find the Court refusal more difficult to accept than a parent who wants to move for lifestyle choices or because they have found a new job based abroad.
No two parents are the same and even if the parents of two children in different families have the same amount of contact with their child each week the emotional effect of a move on the parent left behind can be very different; one parent may quickly adapt to travel abroad to see the child and the other may become depressed and unable to come to terms with the Court decision.
Although the Court is focused on the child’s needs as a lawyer it is my job to not only to look at the Court criteria in relation to the child but also the impact of a decision on the parent I am representing. That’s because if either parent is devastated by the Court decision and can't come to terms with the ruling then it is bound to have a negative impact on the child. That is something that a Court needs to consider when deciding whether it is in a child’s best interests to move out of the UK.
If you are a parent contemplating a move abroad with a child or a parent facing a potential Court application then the best option is to get legal advice. The sooner a parent gets specialist advice on the pros and cons of making or opposing a Court application and what steps they and their lawyer will need to do to successfully get permission or to oppose an application the better. It is like many things in life: tomorrow belongs to those who prepare for it today.
For help with the process of taking a child abroad to live or for help in opposing an application please contact us
The race to start international divorce proceedings
Most people assume, especially as we are currently part of the European Union, that if a couple decide to separate and get divorced it doesn’t matter which country they petition for divorce in as a ‘’divorce is a divorce’’.
Well that response is both right and wrong. My apologies for giving a stereotypical ‘’on the fence’’ lawyer’s answer but whilst a husband or wife may achieve a divorce as a result of the decision to petition for a divorce in country A it may mean the husband or the wife's financial settlement is a lot less compared to if they had started the divorce proceedings in country B.
The Court of Appeal has been hearing a case involving a German financier Oliver Thum and his wife, Catja, to decide whether to stop the divorce proceedings issued by Mrs Thum in London and to allow Mr Thum’s German divorce proceedings to go ahead:
This scenario of a family with more than one divorce country to choose from is surprisingly common however when a husband or wife are separating they often don’t realise at that stage the financial significance of their decision to start Court proceedings in a particular country or they don’t have the means to challenge an estranged husband or wife's decision to commence the divorce in country A rather than B.
In the Thum’s case it is agreed that Catja Thum started her divorce proceedings in London before her husband had issued proceedings in Germany. The question for the Court is whether her delay in sending her divorce petition to her husband should mean that her divorce petition is dismissed? That is an issue that the Court of Appeal judges are considering.
It certainly won't be the last time this scenario comes before the Court for adjudication for whilst London is perceived to be ‘’the divorce capital’’ for large financial awards there will be always be a natural attraction for the economically weaker spouse to start Court proceedings in England. I am often asked to give preliminary advice where there is potentially more than one divorce Court jurisdiction and if advice is needed from an overseas lawyer as to whether it would be preferable to start divorce proceedings overseas then I can easily arrange this as I am a fellow of the International Academy of Family Lawyers, the world’s leading organisation of expert international family lawyers.
Always seek expert advice
If there is the potential to start divorce proceedings in more than one jurisdiction it is vital to get expert legal advice as quickly as possible on your options so that you preserve the ability to start divorce proceedings in the country of your choice. Sometimes people are reluctant to take the step of seeing a lawyer but an initial consultation doesn’t commit you to anything but gives you information to help you chose the right option for you. If that option is a divorce then early advice gives you the opportunity to choose the ‘‘right’’ country to initiate the Court proceedings in.
For help with international divorce proceedings or financial settlements please contact us
The question of whether a mother’s decision to relocate from Australia to England with her two young children amounted to child abduction has been the subject of a Supreme Court ruling called Re C.
The Court decision is of interest as it highlights the fact that often the decision to move from one country to another with children isn’t straightforward and therefore it isn’t easy to say what amounts to ‘’child abduction’’ and when ‘’habitual residence’’ changes from the country of origin to the country of relocation.
In re C, two parents were living in Australia with their two children, the marriage ran into trouble and the father agreed that the British mother and the children (who had Australian citizenship) could take a trip to the UK for 8 weeks. The father then agreed, by email, that the trip could be extended to up to a year. During the year the mother decided that she wanted to remain in the UK with the two children. This decision resulted in the father applying under the Hague Convention for the children’s return to Australia.
The legal question was whether the children remained ‘’habitually resident’’ in Australia as, on the father’s case, their stay in England was only temporary. If the Court ruled that the children remained ‘’habitually resident’’ in Australia the Hague Convention rules would be applied and the children would go back to Australia .The long term decision as to which parent the children should live with and in what country would then be decided by the Australian family Court. The Australian Court would have the option to rule that the children should stay in Australia with their mother or father or grant an application by the mother to return to the UK with the children.
The mother resisted the father’s High Court application that the children should be returned to Australia arguing that the children were now habitually resident in the UK so the UK Court couldn’t apply the Hague Convention rules and summarily return the children to Australia for the Australian family Court to decide on the children’s future. The High Court agreed with the mother, the father appealed and the Court of Appeal agreed with the father ordering the children’s return to Australia. There was a further appeal to the Supreme Court. The Court held that the father’s application under the Hague Convention failed because the children had become ‘’habitually resident’’ in the UK and therefore the English Court could decide where the children’s future lay. Not all of the Supreme Court judges agreed with the leading judgment and a reading of the Court case and the various judge’s views shows just how finely balanced and complicated the decision was.
The decision on whether the children were habitually resident in Australia or England all came down to when the mother formed her intention to remain in the UK with the children. Was it a case of a mother who was struggling to decide what to do and where to live with her two young children or a case of planned child removal by tactically getting the husband to agree to a one year stay in England?
Why does the case matter? If the children had retained their habitual residence in Australia then under the Hague Convention the UK Court would have had to return the children to Australia using a quick summary procedure and without looking at the merits of either parent’s case namely that the children would be better off being brought up in Australia or the UK. Once back in Australia the mother might have found it harder to argue that the children should return to the UK with her.
However as the Court has ruled that the Hague Convention doesn’t apply the UK Court can now carefully decide what is in the children’s best interests: to live in England with their mother or return to Australia with their father and the sort of contact time they should spend with the parent who isn’t going to be caring for them on a day to day basis.
What does this case mean for a parent travelling with children to the UK? For the parent who has come over to the UK with their children it shows the depth of analysis of the legal concept of ‘’habitual residence’’ and the pouring over of detail and, in the case or Re C, the review of correspondence to try to determine when the children lost their habitual residence in Australia. Despite the Re C ruling many parents should be wary of the risks of arguing that their children have become habitually resident in England and thus the Convention doesn’t apply. That is because if the UK Court rules against them on the legal definition of habitual residence or on the facts of their case they start on ‘’the back foot’’ if they have to return to the country they departed from for that country to rule on their children’s long term future. The dilemma remains – do you apply for permission to take a child to live abroad in the country in which the child lives and risk Court failure or risk travelling abroad and the Court ruling that the child’s habitual residence remains the country of origin thus forcing a Hague Convention return and a more challenging Court application in the country of origin.
What does this case mean for a parent agreeing to their children going abroad with one parent for an extended period? It may mean that if the parent receives legal advice they will be less likely to agree to a child going abroad for an extended holiday as if their child is at risk of losing habitual residence the Hague Convention won't apply thus making it a lot harder to recover children from abroad.
The dissenting Supreme Court judge’s views show just how difficult it is to define the concept of ‘’habitual residence’’ and how easy it is to fall foul of child abduction laws and conventions. As a child abduction lawyer the case of Re C shows just how finely balanced Court decisions can be and the importance of parents taking legal advice before they take their children abroad or agree to an extended trip abroad so that they make informed decisions.
For advice on any aspect of children or child abduction law please contact us.
As a divorce solicitor, I often complain about some of the seemingly archaic rules and procedures that have to be complied with to obtain a divorce in the UK. Not only does a petitioner for a UK divorce have to establish that their marriage has irretrievably broken down as a result of adultery, unreasonable behaviour or after a period of separation, but they also have to fill in a divorce petition and sign a supporting statement during the Court process in order to finalise the end of their marriage and get a Decree Absolute of divorce. The divorce process can involve a lot of form filling and normally takes between 4 to 6 months to complete.
Many people in the UK have heard of the Talaq and perhaps think that an instant divorce by a husband repeating the word ‘’Talaq’’ three times would simplify the divorce Court process in the UK. Undoubtedly it would but many Muslim countries are now banning the Talaq on the basis that it is unfair to women as whilst a women can agree to marriage she cannot initiate a Talaq, leaving women vulnerable to being quickly discarded without Court process and without financial protection. .
As reported by the BBC, India’s Supreme Court is one of the latest Courts to rule on the Talaq divorce process and to rule it unconstitutional. https://www.bbc.co.uk/news/world-asia-india-40897519
The Indian Supreme Court reached this opinion after 5 women appealed against the use of the triple Talaq by their respective husband's and the injustice it created for them and their children. The Indian Supreme Court agreed that the Talaq is unfair.
In addition, the European Court of Justice has also recently looked at the Talaq and given an opinion on whether a Talaq is a valid divorce. The Court has ruled that European laws do not cover Sharia divorce. That means a Talaq divorce can't be recognised by the European Court of Justice and needs to be accepted by the individual country as a valid means of divorce. https://www.bbc.com/news/world-europe-42424547
What does this all mean for UK wives who are told about a Talaq divorce or alternatively are threatened with one? ATalaq divorce isn’t recognised in the UK unless the Talaq was not only legal and effective in the country in which it was pronounced but also complied with procedural requirements. That means the UK Court will have jurisdiction to decide on whether the couple can get divorced or not, provided that the marriage is a legally recognised marriage in the UK. If so, not only does the wife get the protection of having to petition or respond to a formal divorce petition but she can also ask the Court to help her financially with an interim or short term maintence award ( known as maintenance pending suit ) and / or long term financial orders sorting out ownership of property and payment of maintenance.
So if you are presented with a Talaq or threatened with one then legal advice should be sought. The Talaq may well not be valid and , as importantly, there are legal UK Court remedies to help sort out child care arrangements and financial matters.
For advice about any aspect of divorce or children law please contact us.