Posts Tagged 'International divorce'

Expat Divorce

Because the Mogers family team have collectively lived in countries such as Hong Kong, The Philippines and Nigeria we know it is hard enough to know where to turn to for a decent plumber, let alone specialist advice on matrimonial and family problems.

For those separating on British shores help is at hand in the form of Resolution – an organisation specifically set up by English family lawyers to help point separating couples in the right direction. However, in the event of a marriage or relationship breakdown between expatriates abroad, it is more difficult to know where to turn to. They will find themselves going through great anxiety facing questions such as “will I be able to stay here”, “who will sponsor the children and provide visas” and “what am I entitled to”. This is in addition to the normal emotions during a separation i.e. guilt, anger, sorrow and vulnerability. The sooner these issues are resolved, the better.

We often deal with enquiries that follow the pattern mentioned above. On a first meeting with a client we give an early consideration to the issue of jurisdiction. What is the appropriate forum for proceedings to be commenced? Jurisdictions to consider would be that of the client’s home country, the partner’s home country, or the jurisdiction of the host country if this is different.

Jurisdiction will largely depend on nationality, domicile and habitual residence of both parties. British expatriates are often unaware that divorce and financial matters can be dealt with swiftly through the English courts, without them even leaving the host country. A divorce is routinely carried out on paper, without attendance. It is not, as often thought, necessary to divorce in the place in which you were married.

Jurisdiction is a complex issue, and requires detailed consideration. Lengthy delays to any proceedings, amicable or otherwise, can take place if matters are commenced in the wrong jurisdiction. It is also important to be aware from the outset of the enforceability of any orders that are obtained. Some orders made by the English Courts may not be enforceable in the host country if they conflict with local laws. If separating couples seek comprehensive advice on all these aspects at an early stage, they can increase the likelihood of an amicable and swift resolution of the issues between them.

As in life, the key to a good marriage is compromise. The same can be applied to separation and divorce. Both parties must compromise with each other and to avoid the entire family becoming embroiled in a lengthy, costly and upsetting period; each party must try and continue to consider the feelings, needs and the rights of the other party.

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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.

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.

Bridge over troubled waters.

If you think your marriage is failing, contact your lawyer now as it can make a huge difference to your settlement.

When a relationship fails or begins to fail, married expats can find themselves in a very difficult position. Where they divorce and how much they will have to pay or receive by way of divorce settlement can be determined by where they issue. Getting this right is crucial particularly for expat wives.

Generally the expat wife will have fewer assets than her husband particularly if it was his employment that took the family abroad. It is therefore generally considered advisable for expat wives to retain a base in the UK to enable a petition to be issued in England and Wales. The English law has been recognised in the media as the wives jurisdiction. This is because in England and Wales spousal maintenance is open-ended meaning it can be paid until the payer dies or their financial circumstances change.

Most EU states require the recipient to demonstrate why ongoing maintenance is required over and above child support and in Europe the courts expect the spouse to get back on their feet and independent as quickly as possible.

In the EU, the Brussels II convention brought together the rules regulating divorce jurisdiction across all EU member countries except Denmark.  This states that wherever divorce proceedings are issued first that is where the divorce takes place.

Therefore expats living abroad may fulfil residence criteria in more than one jurisdiction but by virtue of their domicile they may be able to issue in England and Wales.

The divorce situation is different in the US and other non EU countries which considers the circumstances of the case and requires a hearing to determine the appropriate jurisdiction which is costly for both parties but can be a price worth paying for some spouses where their assets may be better protected by that jurisdiction, Eg a spouse may issue in the US or other EU state where pre-nuptial agreements can be binding but in England and Wales are only evidence that the Judge will consider.

As an experienced lawyer it is necessary to ensure that the client who is often upset and emotional acts decisively to ensure that if the jurisdiction may be in issue that they get in first and secure the position that best protects them.

The courts of England and Wales will insist upon full disclosure being provided so that you can be sure of all the facts and figures before trying to negotiate a settlement, however in Italy or Spain the requirement is not so stringent.

Acting for UK expats seeking advice from Hong Kong, Oman, USA and Europe has enabled me to become experienced in understanding the needs of the expat client and being able to act both quickly and appropriately to enable the right choices to be made at the outset.

A vote for divorce in Malta

The staunchly Catholic island of Malta voted at the weekend to end its status as the only European Nation that does not allow a divorce. A referendum provided a victory for the “Yes” camp who secured 52 per cent of the votes which is now likely to lead to legislation being placed on the statute books possibly as early as the end of the year.

Following months of campaigning The Prime Minister Lawrence Gonzi conceded defeat as the first news of the results trickled in with only three of the 13 electorial districts voting against the proposal to introduce legislation which is likely to be among the most conservative in the world.

According to the terms of the referendum, divorce will only be granted if the marriage is irreparable and the couple have been separated for four of the last five years and arrangements for maintenance and childcare have been agreed.

The bitter dispute which involved mudslinging and hostility culminating in an apology from the Church for the way in which the “No” campaign had been run and its role in exercising it’s influence to secure a No result.

Malta will be the last European nation to legalise divorce. Barring the Vatican the only other country without divorce legislation is the Philippines. With 95 per cent of Malta’s population being Catholics the voting was always going to be close.

We will watch with interest how this develops for UK expats currently living in Malta.

New divorce rules for parts of Europe

Just before Christmas the European Union confirmed that from mid 2012 that couples living in 14 Countries across Europe will be able to choose which countries divorce rules should apply to their separation.

The 14 member states that have signed up to the agreement will mean that the Austrian and Frenchwoman who marry in Belgium but live in Germany can choose where they seek to divorce. In the event that they cannot decide then the Courts will have a common formula for deciding which country’s laws apply.

This goes toward helping those international couples who can encounter arbitrary legal problems that cause massive problems and can lead to financial and emotional disaster as previously blogged in the case of Sara Pell.

At present of the 27 European States, 20 countries determine which country’s laws apply based upon nationality and long-term residence. However 7 still apply their own domestic law.

The 14 countries that will apply these new rules are Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.

We may see in time more countries taking up these rules in an effort to prevent the divorce tourist from seeking the jurisdiction most likely to achieve the best financial outcome for themselves. I would question whether the fact that human nature will always dictate that the client who can afford to manage their affairs in such a way as to choose a jurisdiction will always seek the most advantageous country for them to issue.

But the rules will help simplify matters for us lawyers who often have to advise upon such issues. If you would like further advice upon this subject or your own circumstance then please contact Mark Sage by email marksage@mogers.co.uk or telephone +44 (0) 1225 750072


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