Home or away….

Where do you consider yourself to be habitually resident? Australia? India? Iceland? What determines habitual residence, is it where you were born? Where you currently live? Where you pay your taxes? Given our increasingly globalised lifestyles and ‘suitcase culture’, is it even possible to geographically pin-point ‘where one lives’. Indeed, to stretch this thought experiment is it possible for me to consider myself habitually resident in Barbados even though I have never visited the island. Sure, it’s a social place, a social country, an outdoor culture, and a place where people greet you with a smile but the fact I want to settle there, is that enough?

Habitual residence was considered in the recent child abduction case ZA & PA v NA.

Facts:

The father and mother married in Pakistan in 1999 and moved to the UK soon after. They separated in 2006 after what was an abusive and violent relationship. The three eldest children were born in England.

In 2009, the mother took the three eldest children to Pakistan for a holiday, intending to return to England. She was subsequently pressured into staying by the father and the children were entered into schools in Pakistan. She was effectively kept under house arrest. The youngest child (H) was born in Pakistan in 2010.

Following H’s birth, the mother returned to England without him but obtained an order for the immediate return of all four children on the basis that they were all habitually resident in England. The judge held that H had acquired habitual residence in England at birth.
The father disputed this order and made the point that H had never been to England and therefore it was nonsensical to say that he was habitually resident there.

The decisions:

The Court of Appeal agreed with the lower court that the three eldest children were habitually resident in England. Their habitual residence flowed from that of the mother and she only ceased residing in England under duress.

When considering the position of the youngest child, the Court of Appeal, with, one surmises, some regret, found that without a child ever having been physically present in this county he could not be said to be habitually resident here.

In a dissenting speech, LJ Thorpe strongly argued that H should be deemed to be habitually resident in England because in some very narrow situations a new-born could acquire the habitual residence of its parent without ever having been the country.

Distilling the lessons:

The Court of Appeal found that habitual residence is a matter of fact and while the result may have been deeply unsatisfactory to the conscience of many the ruling does work to simply a previously obscure legal concept into a mere factual analysis.

Family law’s new face(book)

The Telegraph has reported that Facebook is fuelling many modern day divorces. Indeed, one law firm has said that one in five of the divorce petitions they see refer to Facebook, with exchanges of suggestive messages on the site being one of the most commonly cited examples of unreasonable behaviour. Facebook, for those unaware, is a global social networking site allowing members to network with other members by sharing messages, pictures etc. – the site reached 1 billion monthly active users in September 2012.

When the mighty Facebook and likewise Twitter get involved, relationships  can quickly fall apart – as a certain Manchester-based footballer found out not to long ago. Before it was the lipstick on the collar or recordings on the baby monitor that trapped adulterers. Nowadays, life has been made a whole lot easier by Facebook as all you need to do is switch on a computer and you are confronted with your other half’s ‘wall posts’, ‘status updates’ and ‘tagged locations’. Life is easier still for those with mobile enabled phone’s who can ‘follow’ their partner as they go.

Mrs Floodgate was a victim of this, when, as the BBC recently reports, she logged into Facebook to see pictures of her husband marrying another woman in Vegas. As a result, Mr Floodgate has been jailed for 20 weeks for bigamy.

Jurisdiction is an important issue in family law as where you reside can affect which country will accept your divorce case. Different countries of course have different laws and so results will differ. Deciding where to make your case then becomes a very important decision.  The connections that the courts of a country normally require before accepting jurisdiction in a particular case include things like nationality, habitual residence, domicile, or business interests. It is easy to understand why many clients wish to resort to Facebook, Twitter and the like as evidence of the country their spouse has been ‘posting’ or ‘tweeting’ from. Prospective divorcees may therefore wish to tweet or post with care, particularly when they anticipate there being a jurisdiction issue.

Other examples of when social networking could feature in family law include when a partner has seen photographs and videos uploaded to Facebook which show their former partner enjoying a lifestyle way beyond their financial means as disclosed as part of the divorce process i.e. sat atop their new yacht in Monaco. Similarly, in child relocation cases, one parent may post a status update declaring their intention to move aboard prompting the other to seek legal advice.

For better or worse then, Facebook has shaped the way we communicate and function –it has become the platform from which we live our lives. For family lawyers as a result, our status has just been changed to “it’s complicated”.

Pre Nups

Do they put the financially weaker party at a disadvantage from the outset? What do you think?

A little bit of Judicial banging of heads together……………..

Warring parents told to face up, not fall out over contact with children

Parents may be told to turn to counselling or therapy to deal with their attitudes – the Court of Appeal has said responsibility for achieving the best outcome for a child lies with the parents themselves, not with the courts or any other agency of the state.

Lord Justice McFarlane says that the courts will almost always regard it as being in a child’s best interests to have a meaningful relationship with both parents.   The clear message is that parents must set aside their differences and work out ways to achieve this. 

If there are obstacles they must find a way to overcome them……………..

Controlling and managing UK property/assets

When living overseas, while you have property and assets in the UK there is the question of dealing with day-to-day issues arising. These can, for example include, practical maintenance matters for properties, or questions/activity related to investments. Many well advised expats have found that a properly drafted Lasting Power of Attorney can cover the great majority of situations. At MOGERS we are well used to talking through the potential issues and highlighting structural opportunities which may not have occurred to you. You remain “in the driving seat” while having delegated day-to-day concerns. We are always happy to speak to you without any obligation to see whether we have effective responses to your circumstances.

Divorce and the over 60’s …

This has been a hot topic in recent months given the sharp increase in couples divorcing in later life.  Indeed the over 60’s are the only age group where divorce rates are rising.
With my parents both being in their early 60’s, I have to say there isn’t a month that goes by where one doesn’t threaten the other with divorce!  However, I know that for a lot of couples like them this is done in jest.  This time in their life being the most comfortable (financially); the stresses of work and children associated with younger life gone.  Now marks an opportunity to enjoy this new chapter of their lives together.
Unfortunately, for some couples this is just not possible and divorce seems the only way forward.  Research is being undertaken as to why this trend has recently developed. 
Some may say it is because people are living longer and when a person reaches the big 6 – 0 they have a new lease of life their parents or grandparents never had.  Retirement is therefore a time to do things that you couldn’t afford to do when you were younger.  This may lead to couples realising they have little in common – and, cannot face the prospect of spending another 20 years with their other half.
There is also a tendency for couples to have children later in life.  This, coupled with the cost of living means children are living with their parents for much longer than they would have done generations ago.  The ‘empty nest syndrome’ has always been seen as one of the key times in a couples life and can often be a trigger event for separation.  It just so happens that this event seems to be happening later in life than ever before.
I would always suggest couples attend counselling in the first instance if there is a chance of reconciliation and here at Mogers we work with a number of professionals who can assist.  If divorce is the only option then it is important to take legal advice in order to ensure that both parties can move into their retirement as financially secure as possible.

Vikki Strode guesting for ExpatLaw

Elderly Care (or lack of it)

What depressing news that a Home apparently rated excellent can still harbour some disgraceful behaviours. We make unscheduled visits to clients in Homes, not to catch anyone out but to ensure that the promised standards are in fact delivered.

The slightly worn Home can deliver the best care, as indeed can the most expensive and new. But no one should assume that what is written on the tin is what you get.

Having a bespoke service like ours to make sure older clients are treated with the respect and dignity they deserve has never been more important it seems.