Archive for the 'international law' 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Without telling the mother, the father had resigned from his London-based job, lined up a new position in Singapore and withdrawn £18,000 from the joint account.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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We’re “consciously uncoupling”, what happens next?

The idea of “conscious uncoupling” has attracted a great deal of attention in the last week following the announcement of Gwyneth Paltrow’s divorce from Chris Martin. In short, they have decided to separate amicably.

The couple have two young children together and have spent married life living in the UK and the USA. Their joint net worth is reportedly $148,000,000 and they have a portfolio of properties in the UK and USA. So what happens next?

Where can they divorce?

Couples who live or had lived in a number of countries may have the option of deciding where they start court proceedings; this does not necessarily have to be the country in which they live or where they married. In Chris Martin and Gwyneth Paltrow’s case, it may be possible for them to divorce in England as they previously lived in London.

The country where couples start court proceedings could have a significant impact on the outcome when it comes to children and assets. For example, the courts in some countries will award bigger divorce settlements to wives than others and will consider a homemaker as equal to a breadwinner; others will not. The enormous differences between countries can sometimes result in divorcing couples ‘forum shopping’; shopping around to see which courts will give them a better deal. There can sometimes be a race between couples to get divorce proceedings started in the country that will get them a better divorce settlement.

What happens if there are properties or assets abroad?

Where there are assets abroad, it is always important to make sure that advice is sought from a qualified advisor from the country in which the assets are located. There may be problems with enforcing divorce settlements obtained in one country, in another.

What about the children?

It would seem that Chris Martin and Gwyneth Paltrow are intending to “co-parent”, which suggests that they will both play a meaningful role in their children’s lives and are intending to be amicable. But what happens if they can’t agree on where the children will live and who they will live with?

In England, if one parent wishes to move abroad with a child, they need the permission of the other parent, failing which, they must apply for court permission. Parents, who have a court order in respect of either residence or contact for their children, may need to get it registered with the court in the country that the child lives so that it can be enforced. In very extreme cases, one parent may remove a child from the country in which they live without the permission of the other parent; this is otherwise known as parental child abduction. It is unlikely to occur in the present case, but is sadly on the rise given the increase in families living international lifestyles.

As it can be beneficial to use the English legal system to process your divorce you should always take advice on whether you are eligible to divorce under English law. Please contact us on 01225 750000.

Hong Kong-based ‘house husband’ wins right to hear case in England

Divorce is never easy, especially when children are involved, and this issue can get even more complicated for expatriate and international couples. Divorce and family law varies from country to country, and can be very complex indeed when dealing with relationships that span national borders.

The first question that needs to be considered is which country’s court will have jurisdiction. England will have jurisdiction if one party is resident here for at least 12 months before starting divorce proceedings. A recent ruling by the Court of Appeal in England demonstrates the significance of jurisdiction.

The case concerned a 15 year marriage between a high-earning investment banker and her stay-at-home husband. They lived an international lifestyle with homes in Hong Kong, Malaysia and London. Their assets include a £1m wine collection and £4.5m unmortgaged apartment in Kensington

The wife wanted a divorce in Malaysia. Among other things, she claimed that the couples’ interests were centred there and that as she is the main breadwinner court proceedings should be located near to her current place of work – Malaysia.

The husband on the contrary claimed that the marriage had been broken down for at least two years and in that time he spent more and more time in England. The husband’s centre of interests ceased to be dictated by the wife’s working life.

As well as the above considerations, it is undoubtedly the case both parties had in mind the financial consequences of divorce in both countries and in particular the fact that English law is perceived to be more favourable to the financially weaker party. The stakes were high.

In the event, the Court of Appeal ruled in the husband’s favour. The Judge decided that England had been the husband’s “permanent and stable home” for at least 12 months before issuing the divorce Petition and as such he was entitled to start proceedings in England.

As it can be beneficial to use the English legal system to process your divorce you should always take advice on whether you are eligible to divorce under English law. Please contact us on 01225 750000.

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.

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”.

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.

Tighter control needed on overseas contracts.

Business must take care when entering agreements with overseas organisations to avoid problems if disputes arise.

A High Court judge in London has been hearing a case (http://bit.ly/zJj6Mw ) that involved Brazilian companies who were in dispute over a contract covering the construction of one of the world’s largest hydro-electric facilities. The contract was for construction work in Brazil, it was governed by Brazilian law and was subject to the jurisdiction of the Brazilian courts.

But the dispute ended up in the English courts because parts of the original agreement were not precise enough, and the message to UK businesses trading overseas is to make sure they don’t fall foul of badly drafted contracts, particularly in emerging markets.

The contract in the Brazilian case said that any dispute had to be mediated and, if that failed, the dispute must be referred to arbitration in London.  When the validity of the arbitration clause was challenged, the issue turned into a dispute as to whether the English courts or the Brazilian courts has jurisdiction to rule on the validity of the clause.

The judge ruled that the parties were obliged to arbitrate their dispute in London, and that English law applied to the arbitration.

The case has been highlighted as a clear lesson for anyone who has dealings with foreign companies.  Whenever there is any foreign element, for example export of goods or foreign nationals as clients, the contract or terms of business must be clear about which country’s law will apply to the contract and which courts have jurisdiction.  Any other details must then be consistent with the basic terms concerning the applicable law and jurisdiction.

My colleague and commercial law expert Tom Webb said: “The devil is in the detail.  It is absolutely essential that the contract states the applicable law, because you need to be certain as to the effect of the terms – both at the time the contract is being drawn up and later if there is a disagreement. Otherwise you may find yourself in a very difficult position where your only option is expensive and difficult action involving foreign courts and procedures.

“If the contract says nothing, quite possibly the laws of another country might apply. And of course those laws might be quite different from ours.  The situation is different for consumer contracts within the EU because consumers are protected by EU regulations.”


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Mogers Solicitors

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