Archive for the 'UK expat' 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Without telling the mother, the father had resigned from his London-based job, lined up a new position in Singapore and withdrawn £18,000 from the joint account.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.

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.

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 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.

Can I divorce in the UK?

One of the first questions I get asked by UK expat clients is “can I divorce in the UK?” In the vast majority of cases the answer will be “yes” but I would have to explore their particular circumstances in more detail before being able to give conclusive advice.

We refer to the United Kingdom for convenience, the jurisdiction to which I refer is the courts of England & Wales. Both Scotland and Ireland have their own legal systems.

The issue of jurisdiction can be complicated particularly if you are living in Europe as legislation brought into place by a European directive known as Brussels II affects English law.

However the English Courts would have jurisdiction if either spouse is:-

a) domiciled in England & Wales when proceedings are commenced or,

b) habitually resident in England & Wales for a period of one year ending on the date when proceedings are begun.

You don’t have to be physically present in England to divorce. I would be able to finalise all of the paperwork and progress matters through the courts on your behalf including if your spouse is also overseas. By way of example, a British couple married in London but now living and working in Hong Kong. Both are almost certainly still domiciled in England and so would be able to issue proceedings here. If both consent to the divorce it is very unlikely that either spouse will have to attend court.

Is it better to issue in England?

I refer to my blog in August 2010 http://bit.ly/pkgU8H (Record divorce payout) and the great debate between lawyers around the world as to where to issue and the divorce tourist that Lord Thorpe refers to but in all honesty it would depend upon your individual circumstances. There are a number of international jurisdictions that do not provide for ongoing periodical payments ie spousal maintenance. In such circumstances a wife could be advised to issue in England where such provision applies. In many countries the Community of property applies where you both own it 50/50.

However through an extensive network of international contacts I am able to help clients decide which would be the best jurisdiction for them if they do have a choice.

As you would expect with the law there are many aspects which complicate matters but if in doubt please ask me immediately as there can be a need to issue quickly as your spouse may not agree and it would be better to issue in another jurisdiction which may also be available.


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