Archive for the 'Family' Category

Father ordered to return his son to the UK after losing case

A UK court has ordered a father who kept his son in Singapore with his parents to return him to the UK.

The couple met and married in Singapore in 2011. The mother originated from Mongolia. The father who worked for a bank, purchased a home in London and the mother joined him there. Their son was born the following year. By all accounts the marriage was strained. Police were called on a number of occasions and Westminster social services were involved when allegations of domestic abuse were made against the father.

In June 2013 the mother was studying at Birkbeck University and it was agreed the father’s parents would take the boy to Singapore to live with them for a few months.

In January this year, the couple flew out to Singapore with a return flight apparently booked for all three of them a few weeks later. Without telling the mother, the father had resigned from his London-based job, lined up a new position in Singapore and withdrawn £18,000 from the joint account. Immediately on his arrival in Singapore, the father commenced custody and divorce proceedings. The mother was served with the papers over lunch with the father.

The mother returned to the UK without her son. She found herself locked out of the family home and her ATM card cancelled. She started court proceedings in England for the return of her son, claiming she had only ever agreed to a temporary stay. The father, meanwhile, insisted that they had agreed to an indefinite stay.

The presiding judge looked at the issue of jurisdiction and the child’s “habitual residence”: was it in England, where he had been born, or had he become Singaporean during his stay in the country, as the father argued?

The judge said that the factual element is important i.e. where the child is physically located but also important is the intent and purpose of the parties and the wider circumstances of how the child came to be where he currently is.

The judge concluded there was no shared intention to relocate back to Singapore. The purpose of the child’s journey to Singapore, as agreed by his parents at the time was for a short period from August to November 2013, while the mother completed her studies. This was extended to January 2014 because the father could not travel owing to work commitments. The child’s habitual residence therefore remained in England and the judge ordered that the child be returned.

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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.

Child abduction prevention

The Office of the Head of International Family Justice has recently said that international child abductions by parents are on the rise.

With news of the rise Mogers has prepared a checklist of practical things parents who suspect their child might be at risk of abduction can do. Some of the information may be required by others, for example your local police or solicitor, so that if your child is removed they can be identified quickly and returned.

Where possible, communication between parents is beneficial in avoiding parental abductions. The Resolution book Separating Together: Your options for separation and divorce helps separating couples to explore non-confrontational ways of resolving disputes on separation and is recommended.

Where communication fails however and suspicions of abduction arise parents should consider the information below.

Actions you must take

For every child in your family you think is at risk of abduction:

1. Create a written description of your child and take photographs (include any distinguishing features such as birth marks, glasses, medication etc.);
2. Take your child’s fingerprints;
3. Complete a written description for the other parent with photographs (include any distinguishing features, bank account details, passport details etc.)
4. Compile a list of addresses, telephone numbers etc. of the other parents relatives, friends, business associates both in the UK and abroad.
5. Take photocopies of all the above so that they can easily be forwarded to others e.g. your solicitor.

If a child is abducted, the above information will be vital in locating them.

Actions you may consider

If you answer yes to either of the following questions then you should consider the actions highlighted below:

1. Do you believe that your child may be abducted within the next 48 hours?

2. Do you think that your child may be taken out of the country?

Action

1. Inform your local police station. Speak to the officer in charge if need be. They may issue an ‘All Ports Warning’ and put the child on the ‘child abduction list’ (lasts for 28 days)

2. Inform your solicitor who can make arrangements to obtain a court order to prevent the removal of a child from England and Wales and/or the surrender of any passport issued

3. If you or your child have one of the following, consider telling them your fears, why and what you would like them to do if they see or hear anything suspicious:

• The family doctor
• The nursery office or nursery nurse
• The headteacher
• The social worker
• The registered child minder
• The cub, scout, brownie or guide leader
• The youth club leader

You may also think of others.

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……………..


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