Warning across waters

Breaking up may be hard to do, but for married expats it can be fraught with danger. Often there is a choice of where to divorce and where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is crucial.

The Eurostar divorce

England and Wales is perhaps most favourable to the financially weaker spouse. In expat circles this is often the wife for example if she moved abroad when her husband’s work took them there. It is favourable because in England and Wales maintenance is open-ended, meaning it must continue to be paid until the payor dies or their financial circumstances change. In Scotland, in most cases there is a three-year maximum term for maintenance and in most other EU states you have to show the court why you need the ongoing money. Clearly if this is the case the financially stronger party should use a foreign lawyer and the financially weaker party should get on the first plane back to England. The way the system works is that the place where you petition for divorce first gets jurisdiction over the case.

Prenup, we want prenup!

Financially weaker spouses should remember that prenuptial agreements, which are designed to protect pre-martial wealth, are not legally binding in England and Wales. Though they are not binding, a judge may take it on board when making a decision. In a very short marriage, the judge may well allow the prenup to stand, but in a longer marriage where the passage of time means the contents of the prenup are out of date, the chances are the judge will discount it.

Devil’s in the detail

In family cases, disclosure is crucial. English law requires a full and frank disclosure of a person’s financial position. If they lie, they could be convicted of contempt. In the well-publicised case of Young v Young the court’s patience finally snapped and the husband was sentenced to six months’ imprisonment for non-disclosure. In contrast, in Italy individuals give disclosure merely “on their honour”. Assets are much harder to trace without the full force of court orders to oblige disclosure.

Enforcement

English law takes a firm stance on enforcement which is backed up by international agreements with other countries. This allows English-made orders to be enforced abroad. Such countries include Australia, Canada, the USA and the member states of the EU.

Experienced divorce lawyers are all familiar with cross-border cases, and the complexities which make these divorces so difficult. No-one facing the devastating loss of a much-loved and trusting spouse wants to pull-the-plug on the marriage until the end is beyond doubt but by then, when realisation finally and cruelly dawns, it could be much too late. Consult an experienced lawyer, you can always withdraw the divorce petition if you wish.

Clean break via a pre-nuptial agreement

The Financial Times recently reported that professionals in the City and those working abroad are increasingly turning to pre-nuptial agreements in order to protect the savings and investments generated from their labour. These “new money nuptials” are a contradistinction to the “old money nuptials” which typically look to ring-fence assets inherited on the death of parents, grandparents etc.

So are pre-nuptial agreements binding and are they worth the “hassle”? To help breakdown the issues, let’s work with the following common example.

Jeremy is a British citizen who is getting married to Jenny, an Australian national who was schooled in England. They both currently live and work in Qatar taking advantage of the more favourable tax system. Jeremy is a civil engineer and Jenny an English language teacher. They plan to continue living in Qatar after marriage but do intend to return to England to set up a family. There is a significant imbalance in assets. Jeremy has roughly £1,500,000 in assets, including equity in a house in Cheltenham and investments. Jenny has a few thousand pounds in savings. Neither party is likely to inherit any significant sums.

The current position on pre-nuptials in English law is that weight would be given to them in the event of a disagreement provided certain factors are met. Importantly, the agreement must be fair in the prevailing circumstances and accompanied by some important formalities i.e. independent legal advice, absence any duress (pressure) and typically they are signed at least 21 days before the wedding.

Many pre-nuptials seek to ring-fence assets accrued before the marriage, so in Jeremy’s case the properties and investments, with the agreement essentially providing that the couple will, the event of a divorce, share the wealth they have built together – what might be called the “fruits of the marriage”. However, it is highly recommended that the pre-nuptial is periodically reviewed – it is important that neither party will be left without financial provision, and any children will need to be properly provided for. Staying with the above example, if Jeremy and Jenny have daughter, Jessica, the pre-nuptial would need to altered on Jess’ birth to take her into account and make sure she is provided for. So while there may be a clean break between Jeremy and Jenny on divorce, it is not possible for a parent to get a clean break from a child and issues such as child maintenance will need to be considered.

In terms of their benefits, pre-nuptials offer the likes of Jeremy and Jenny the certainty of knowing what will happen in the event of a divorce. The fact they currently live in Qatar is not necessarily a “deal-breaker” – a clause can be entered into the agreement which provides that both parties agree at the outset that any later dispute will be dealt with by English courts applying English law. More than this though, given the cost of a prenuptial is significantly less than court proceedings post divorce it really does pay to discuss and draft a prenuptial.

Traditionally many people like to sit down with their solicitors and discuss matters, nowadays with Skype it is often possible to discuss matters via the web. Papers can be faxed and sent via email.

Please contact Rebecca Silcock if you have any questions relating to pre-nuptials.

The Sky(pe) is blue..

I made a positive attempt to count the number of times I was caught on camera yesterday. I counted 23 occasions though recent reports suggest that the average Briton is caught on camera 70 times a day. We are no longer camera shy. I was ‘snapped’ on my laptop yesterday as I was skyping an old friend who now works in Turkey. Skype is a free form of video calling online. It means families and friends stretched across long distances can stay in good contact better than ever before. How amazing, right? To be half way around the globe and have the ability to see and talk to others not only in real-time, but for free.

Lawyers are not the best at championing new technology; my family still can’t seem to let the VCR go. Skype is an exception. We increasingly see separated parents living in the same vicinity using Skype as a way to reach out to their children. In these circumstances, we see parents wanting traditional face-to-face contact as well as virtual contact via Skype. It is used as a way to get additional contact time. What is perhaps more controversial is that Skype is now proposed as a way of maintaining a relationship with a non-caring parent when the caring parent relocates with the child abroad. Judges allowing a parent to relocate with the children seem to accept Skype is not as desirable as in-person contact, but propose it to be the next best thing. Although Skype allows you to share and connect spontaneous moments with loved one’s across distances, you can’t hug a child through the internet.

The influence of Skype does not stop there, it has also been used during actual court proceedings. One case concerned the adoption of a girl from Nepal. The judge directed that the girl’s biological parents in Nepal should be given an opportunity to consent. Using Skype, the girl’s solicitor was able to witness in real time the parents signing the consent forms and photographs of the events were taken. The process satisfied the judge that the parents had freely consented to the adoption. The second case concerned an application by a parent for permission to relocate to Columbia. The judge accepted evidence can be taken from a witness in Columbia via Skype. The judge thought Skype offered a real alternative in cases involving witnesses in remote locations.

At Mogers we regularly make use of Skype to connect with our expat clients abroad. Do get in touch if you require any advice on legal matters.

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”.

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……………..

Divorce Tourists choose London, but at what cost?

One in six divorce cases going through the British courts at the moment involve a foreign national. With high-profile settlements such as the upholding of Ms Radmacher’s pre-nuptial agreement in the Supreme Court, Frances Gibb has reported in the Times this week that the courts of England & Wales are being clogged up by the involvement of foreign cases or those with an international element.

It reminded me of my blogs in November 2010 http://bit.ly/xVQgcp  where I wondered if Hong Kong may become the new divorce capital, it would appear not.

Wives have for many years chosen the courts of England & Wales because of the generous provision that they can be awarded compared with other foreign destinations, in particular many courts in Europe where laws provide for earlier financial independence for both parties.

This shows huge confidence in the laws of England & Wales but is this causing UK citizens to suffer due to the backlog of cases being dealt with that involve an international element? Is this causing costs to increase with usual applications for consent orders taking months to be returned approved from the Principal Registry as opposed to a couple of weeks in many other courts? I am finding that managing my client’s expectations as to unnecessary delay is a big part of my job.

The fact that the Times also report that there is an increase in other litigation going through the British Courts is further demonstration that despite, many individuals having a lack of confidence in the  UK criminal justice system, it would appear that wealthy foreign individuals are choosing to litigate here.

I have been instructed by many UK expats who have married overseas and or have international relationships and whilst we always discuss the merits of jurisdiction, the vast majority will choose the UK even if it may not be in their best interest financially. They do so because they feel it is a jurisdiction that they think is fair.

Dividing the dog on divorce.

My wife and I were walking the dog yesterday in a rare moment without the children. Given what is happening with our friends and my profession we were talking about people and what happens during a divorce. At this point our 13-year-old Springer Spaniel came running towards us, covered in something unpleasant that she had found to roll in, tongue hanging out, ears flapping. My wife immediately remarked that “if we divorced you get the dog!”

She didn’t mean it of course (I think!) but it did make me think about a couple of cases where my clients have argued about contents. Sure the family heirlooms and certain items of significant sentimental value given their history may be worth it but quite often it will be items of insignificant value that can cause lengthy and costly arguments. The value of the item being far outweighed by the legal costs incurred.

But people can get very sentimental over many things and it is clearly not for me to judge the importance of the item to that individual but to secure the best possible outcome for my client running up unnecessary and out of proportion legal fees. Pets often fall into this category, our dog for example 13 years old, suffering with arthritis, heart murmur, slowly going blind, uninsurable and costing us a fortune in medication each month, is not worth much but is clearly a much-loved pet.

Given that I currently walk the dog, feed the dog, clean the dog and pay for the dog, I have told my wife that she can keep the dog! I would insist that as she is the registered owner and keeper, the judge would no doubt uphold this fact if ever the question came to court.

Mystery benefactors and legal costs

It is with great interest that I read about Michelle Young returning her divorce case to the High Court before Mr Justice Mostyn, not just because of the historical record maintenance package that she was awarded just over five years ago, but the fact that she now has a mystery benefactor who has promised unlimited funds to her to help pursue her former husband.

Scot Young had made a fortune as a deal “fixer” for Russian oligarchs and British billionaires and at the time of the hearing was estimated to have a £400million fortune. At the time of the divorce Ms Young was awarded Britain’s biggest maintenance award of £27,500 a month, in addition to the private school fees for the couples’ two daughters.

Mr Young declared himself bankrupt and Ms Young has had her suspicions that Mr Young has hidden assets around the world and used a number of friends to assist him in this purely to defeat her claims. She has spent what money she has pursuing him through the courts to no avail, but now following the involvement of a mystery benefactor she claims she will get the justice she deserves.

She has indicated the identity of the benefactor would be made clear after the hearing and conclusion of the case, surely the individual will wish to remain anonymous or else face numerous requests for financial support for willing causes. I often have family members stepping in to assist clients with their fees, but for the benefactor to suggest an unlimited fund to find the hidden millions, I would suggest he, or she, has very deep pockets as lawyers don’t come cheap!

 

Conflict of interest in divorce proceedings.

Further to my blog on Friday, our family friend in need has taken the step to move out of the marital home. Whilst I have overheard snippets of the phone calls between her and my wife, I have been very careful not to offer advice.  Why not? I hear you ask. Surely that’s my job as a divorce lawyer.

Isn’t this the ideal time for her to have a friend who is a divorce lawyer? Well it is but I am also very friendly with the husband. It wouldn’t be right for me to start advising her and not him. What would I do if tomorrow he phones me and asks for advice? I am trying to stay clear of advising either of them but naturally given my experience it may be that they may want some general advice which I can help them with. However there is clearly a conflict of interest having known both for many years.

In the office I would do a conflict of interest check for every new client. This is to check the Firm’s database to see if the Firm, not just me, has acted for the new clients partner either currently or in the past, not just in relation to family work but any other transaction. If we have then it could be the case that I cannot advise the client unless I have the permission of the partner.

It is very tricky when two friends want advice. At times like this however it is good to be in the profession and have knowledge of my peers and their characters so that I can match their personalities with that of my friends. I know how a referral reflects upon you as an individual and know that my legal colleagues will each look after my friends at this time and that hopefully they will both be speaking to me in the future.

 

Friend in need of a divorce.

It’s been a tough week. A close family friend has decided to separate from her husband. It has not been nice seeing her in such turmoil and she and my wife have been constantly on the phone to each other or texting. It’s made me think how important friends and family are when you need an emotional crutch.

Divorce or separation can be very traumatic, even if it’s actually what you want. It can be a big step into the unknown. Lawyers should be there to guide and support clients but what happens to those clients who havent got friends or family to talk to aswell?

Some clients will use their lawyers for that support – calling every day and emailing. It is clearly how the client copes but at what expense? As a lawyer we charge for receiving and considering those communications. It is never a problem or inconvenience for me to talk to a client daily, quite often out of normal business hours if that is what they need but for many I genuinely worry that they have no one else they can talk to.

I am more than happy to pay this months phone bill as I am glad our friend is getting the emotional support she needs.