One way to establish jurisdiction is via a form of residence in this country, but a major problem is the time frame involved. This is six months if the applicant is domiciled in this country, or twelve months if not.

Many clients are in no immediate position to assert that they have resided in this country for any recent period of time at all.

But there are two other potential avenues, assuming there ever was a connection with England, which allows you to proceed straight away and that is by asserting domicile, in one of two ways.

How to assert domicile

The first method, for European divorces that involve an applicant from an EU signatory country, is under Article 3(1) of Brussels II revised. The drawback is that both parties must be domiciled in this country. If that can be established, no prior period of residence is required.

The second, also outlined under Article 3(1) of Brussels II revised, is a “catch all” or safety net, for an applicant resident outside those EU countries. This method permits a petition to proceed “if no court of a contracting state has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun, the English court has jurisdiction.”

This means that in those non-EU countries, if either one of the parties is domiciled in England and Wales, it is sufficient to found jurisdiction in accordance with Section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973.

However it is not a free-for-all. There is also a second stage. Even if jurisdiction is established, then the judge must also consider whether the applicant’s connection with England and Wales is sufficient for the court to fully exercise its jurisdiction.

The case we are going to look at later in this post is a good example, because it will help readers to consider their own position and what might be required in terms of evidence, if they wish to go down this route.

But what does “domicile” mean?

Domicile differs from nationality, or residence. Domicile is the strongest connection a person can have to his or her country, and is acquired on birth. When born, a child’s domicile of origin is the domicile of his father if his parents are married, or his mother if they are not.

In Mark v Mark (2005) UKHL 42, Baroness Hale said:

“Domicile…is a concept of the common law.

“A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises.”

She added:

“It governs capacity to marry or to make a will relating to moveable property; it is one of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father’s domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of status or parentage under the Family Law Act 1976; it is the sole basis of jurisdiction to make an ordinary adoption order under the Adoption Act 1976, s 14, or a parental order under the Human Fertilisation and Embryology Act 1990, s 30. This is not an exhaustive list but it shows the particular importance of domicile as a connecting factor in family law.”

A child’s domicile of origin remains with him unless a domicile of choice is established. This arises “when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time”, as Lord Justice Buckley outlined in IRC v Bullock [1976] 1 WLR 1178.

Domicile of choice

So, in English law you are born with a domicile of origin determined by your parents. But you can change your domicile to a domicile of choice. Sometimes people do so intentionally, for example by advising Her Majesty’s Revenue and Customs that they are no longer domiciled in this country. Sometimes they do so by their actions. The taxman is wise to this. So there are a number of tests to determine if a change of domicile has really happened, before HMRC will give up on the tax.

So even though some parties may say that a domicile of origin has been changed one of choice, legally they may be found not to have done so.

The classic definition of domicile of choice is contained in the case Udny v Udny [2001] 1 FLR 921, which was decided in 1869. In that case, it was said:

“Domicile of choice is a conclusion or inference which the Law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time.

“To acquire a domicile of choice, a person must reside in a country with the fixed intention of settling there and making it his or her sole or principal home for an indefinite period. Residence simply means ‘physical presence in a country as an inhabitant of it’.

“Having acquired a domicile of choice, a person retains it until it is abandoned. Once abandoned, it is possible to acquire a new one. But if there is a hiatus, the domicile of origin revives.

“Abandonment only takes place when the person has left the country with no further intention of ever residing there again.”

If it can be established there is an intention to return to this country, for example, this may affect the decision. At Stowe Family Law we once had a case in which the parties had reserved burial plots in England for themselves, although they had moved overseas. When the wife wished to divorce it was a strong factor – if not the only one – to indicate that neither party had lost their domicile of origin.

Domicile and M v M

In the case of M v M [2010] EWHC 982, domicile of choice was considered in some detail. In this case, a wife issued a petition asserting jurisdiction because of her English domicile only. But her husband objected and the two stage process was undertaken by the court. Interestingly it was not the wife who had to prove her domicile, but her husband.

Mrs Justice Baron observed:

“The burden of proving a change of domicile lies on the party who asserts it. The standard of proof is the balance of probabilities. And cogent and clear evidence is required to show that the balance of probabilities has, ‘been tipped’ whether the issue is the acquisition or abandonment of a domicile of choice.”

Although the husband did not dispute that her original domicile of origin was English because her father was English, he argued that the wife had lost her domicile of origin and acquired a Danish domicile of choice.

But had she? This ultimately depends on the facts of each case which have to be considered in meticulous detail.

The family had spent four years in Denmark, which is not a signatory to the EU Council regulation. They had assets there (and none in England) and their children were of Danish nationality. Despite this, the court considered that the wife did not have the intention to remain in Demark indefinitely, and so held that that Denmark was not her domicile of choice.

The judge then went on to consider whether the court should nevertheless exercise its jurisdiction, applying the second stage of the test. Again, she pointed out that “the burden of proving that the balance of fairness requires a stay rests with the husband in this case for it is his application. It is not for him simply to show that England is not the natural or appropriate forum for the trial, but he must establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.”

Mrs Justice Baron then followed Lord Goff of Chieveley in the House of Lords case of De Dampierre v De Dampierre in 1988 when he stated

“It is, desirable to consider the meaning of the expression “the balance of fairness” No doubt there are circumstances when it can plainly be perceived that it is more fair that proceedings should proceed in foreign jurisdiction than in this country. But experience has shown that there are difficulties. First, there are factors which cannot be evenly weighed. For one class of factors may be simply relevant as connecting the dispute with a particular forum whereas another class of factors (which may embrace the former) may point to injustice arising if the dispute is remitted to that forum. It is necessary, therefore, so to structure the inquiry as to differentiate between these two classes of factor, and to decide how each should be approached in relation to the other. Second, a factor may be such that its advantage to one party may be counterbalanced by an equal disadvantage to the other and a decision has to be made how such factors should be taken into account in considering “the balance of fairness” between the parties.”

Mrs Justice Baron, on the balance of fairness test, permitted the applicant wife to proceed in England. The judge stated: “When this case commenced and I read the written material, I thought that Denmark was a distinctly possible venue, but, as the case unfolded and the oral evidence emerged, it became abundantly clear the balance of fairness including convenience between these parties made this jurisdiction the more potent destination”.

So, if you are overseas and feeling despondent, what about asserting yours or your spouse’s English domicile, and letting your spouse argue the balance of fairness test against you… in England?

Postscript.

Professor Rebecca Bailey Harris has today given the firm a talk entitled “The New EU Maintenance Regulation” ( Council Regulation (EC)no4/2009) which came into force on 18th June 2011 and which deals with jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

In so far as it relates to jurisdiction by virtue of the sole domicile of one party, as referred to above, there may be a problem obtaining a financial settlement if it also includes a maintenance element pursuant to the brand new Article 3 (d) (and the reference to nationality should be read as domicile for England) but as it is a new provision, there is no case law on the subject. The safer option might be to apply for a capital only type settlement with no element of maintenance contained within it.

This is a highly specialist area. I am alerting readers to it, but always, please, take legal advice.

In other words: can you demonstrate a sufficiently strong connection to this country? It isn’t always easy and the answer isn’t always obvious.

Sometimes there is no connection to England at all. Sometimes there is. Sometimes there are connections to other countries, which appear to be as strong or stronger. But there is still the potential to establish jurisdiction.

Because we belong to the European Union, jurisdictional grounds are governed by European law. The relevant law is Art 3(1) of Brussels II revised, which is reproduced below:

1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a) in whose territory:

— the spouses are habitually resident, or

— the spouses were last habitually resident, insofar as one of them still resides there, or

— the respondent is habitually resident, or

— in the event of a joint application, either of the spouses is habitually resident, or

— the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

— the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.

2. For the purpose of this Regulation, ‘domicile’ shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

If you take a look at the new petition form for divorce or dissolution of a civil partnership, you will note that Part 3 (right) is named Jurisdiction – and to a non-lawyer, I’m afraid that much of the content does seem like gobbledygook.

Here you are being asked to demonstrate why the court has jurisdiction to deal with your divorce.

Your answers in Part 3 are often of critical importance, particularly from a financial perspective. I have discussed this at length in a number of previous international family law posts; as has Frank Arndt, the head of our International Family Law department, who is dual-qualified in this country and in Germany.

You will note that the excerpt from Art 3(1) of Brussels II revised includes a reference to domicile, which is a peculiarly English/Irish concept. I have written about domicile before, and will be posting an update next. So don’t worry about what that means until next time!

In this post, I am considering the meaning of habitual residence, within the context of a divorce or dissolution of a civil partnership and also residence within the same context.

V v V and habitual residence

So how do you demonstrate habitual residence, particularly if you live a cosmopolitan life style and flit between several countries?

A recent case called V v V (2011) EWHC 1190 provides a great example. It involved a couple with connections to a number of different countries. The wife wished to proceed with a divorce in England. She claimed jurisdiction because, she said, she had been habitually resident in England, residing here for at least a year before the petition was issued. Could she proceed?

This was a hard-fought case before the parties even got to court to argue about jurisdiction. They had been many times before. As the judge said “These parties have not hesitated to litigate about every conceivable issue”. By the time the jurisdiction issue was heard (the first consideration of the court, you might think), the overall costs amounted to £925,000! Mr V and Mrs V had already litigated about interim funding, the children, contents, occupation and non-molestation orders, freezing orders and interim financial orders. The judge remarked that all these costs had been incurred “without a basis for jurisdiction being established or a page being filed in relation to the ultimate financial orders that will be required”.

Quite a fiery case, wasn’t it?

The husband was a member of a Greek shipping family. He spent considerable time in Greece, Switzerland, the USA and England. The wife had been brought up in Brazil, but had also spent considerable time in Switzerland, the USA, England and France.  The couple lived in England for three years, then left to “reset the clock” of the husband’s non domiciled tax status.

After the birth of their two children, they travelled more generally in Europe and then returned to occupy their London home. They lived there for about a year, but in 2009 the husband, anxious to avoid UK tax liability in relation to a substantial business transaction, moved to Switzerland. The wife and children continued to be based in London. In December 2009, the wife began to spend about two-thirds of her time in Switzerland, and both children were based there. Arrangements were made to sell the London home, but the wife was actively seeking rental property instead. In March 2010 she applied for a UK residence permit, which was granted a few days later, and in that month the children returned to London. Mrs V issued her divorce petition in April 2010.

The husband argued that the English court did not have jurisdiction because his wife was not habitually resident between December 2009 and March 2010.

This period of three or four months between December 2009 and March 2010 was clearly critical for both parties. The facts were minutely dissected. So was the law in which the distinction between habitual residence and mere residence was made clear.

Habitual residence is a concept under European law. Its meaning, as per the accepted interpretation of Dr Alegria Borras, is as follows: “A person’s habitual residence is the place where the person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors being taken into account”.

When considering a party’s “centre of interests”, the party’s intention also forms part of the court’s overall assessment – despite the argument of Tim Scott QC, who represented the husband in V v V, that “this introduces an undesirable element of uncertainty”. (Incidentally, a couple of weekends ago on that course in Bloomsbury, I discovered for myself that Tim Scott is a man of formidable brilliance. You can imagine my feelings about having to “represent” him in a role play against two lawyers on the other side, one also pretending to be the client…..!)

Z v Z and the test of intention

This test of intention, originally set out in the case of Z v Z (2009) EWHC 2626, enables a court to assess the mental element in concepts such as permanent, habitual, residence and home.

In Z v Z, Mr Justice Ryder held that the emphasis for establishing a place of habitual residence was to focus upon the centre of a family’s interests. He found that a “centre of interest” may be established quickly or slowly depending on the circumstances, and that it might not be lost in one country despite a lengthy period spent in another.

In that case, a French husband divided his time between the family home in Paris and his workplace in London. The family then relocated to London, where the children attended school. They kept a house in Paris, but within a month of relocating to London, the couple entered a trial separation. This led to divorce. The wife immediately petitioned in England and, a few weeks later, the husband issued divorce proceedings in France. The French court stayed (suspended) its process. Although the husband then found that his employers required him to return to France, the wife successfully argued that at the time she presented her petition, both husband and wife were habitually resident in England.

Mr Justice Ryder found that at the time of the family’s move to England, the couple intended to change their centre of interests and, even though the husband’s intention had since changed, he had not communicated this to his wife.

Back to V v V where, applying the objective test in Z v Z to the facts, the judge in V v V found that the wife had demonstrated the requisite intention to habitually base herself in England. It was indeed the centre of her interests. The judge conceded that in some cases, moving to another country could well amount to a change of residence.

The court will take into account the links the parties have maintained, as a family and individually, with the country of origin. It will consider where the children were educated, whether or not the children have become fully involved in their new community, and if they speak the language. The court will also consider whether the parties pay local taxes and have transferred assets to the new country.

But in V v V, even though the wife had moved and spent most of her time in Switzerland, during the period in question, she had not stopped residing in England.

The judge then turned to the distinction between habitual residence and residence. This was because Art 3 (1) requires the Petitioner to have been habitually resident at the date of presentation of the petition and to have been resident (not necessarily habitually resident) for one year prior to the issue of the petition.

There is a distinction between the two concepts, and the definition changes in different areas of the law. In children law for example, a distinction is made between habitual residence and mere temporary presence.

In V v V, Tim Scott argued that it is not possible to be resident in more than one country simultaneously – and on the face of it, he has a point. However the judge disagreed, noting: “I have no difficulty with the concept of a person being resident in more than one place at a time…a family with more than one main home, the person who spends extended periods away at an established place of work”.

He added: “Since simple residence is not a basis for jurisdiction, simultaneous residence in more than one member state cannot lead to jurisdictional conflict”.

Marinos v Marinos and the quality of residence

There is thus a clear distinction to be drawn by reference to the quality of residence, and it follows a decision in the case of Marinos v Marinos (2007) EWHC 2047. This was another case involving a Greek husband and an English wife. The wife was an air stewardess who maintained a residence with her parents in England. She became habitually resident when she undertook a planned relocation to England, issued her divorce petition the following day and thus could present her petition.

In both V v V and Marinos v Marinos, the court found that it is possible to be habitually resident in one country and resident in another. It is also possible to be resident in more than one country. Wealthy people will often maintain different homes around the globe and be resident in them. But it is not possible to be habitually resident in more than one country.

Confused? I’m trying my best to keep it simple!

If you are thinking of proceeding in England, then you must give jurisdiction some close scrutiny and thought. Do take legal advice about how these complicated rules might apply to you.

But here’s a final word of warning… Please don’t follow the example set by Mr V and Mrs V, who spent almost £1 millon on other issues before the main case even began. If you do, you may litigate away in costs the financial advantage you were trying to secure in the first place.

Frank Arndt has a particular interest in the outcome. He is the head of Stowe Family Law’s busy International Department, which specialises in cross-border divorce and expat cases. Frank has been discussing the events in Malta with Lorraine Schembri Orland, one of Malta’s top family lawyers (and a member of the International Academy of Matrimonial Lawyers, to boot). Their conversation, copied below, raises some interesting points about the way forward in Malta, not least of which is the speed with which prospective divorce legislation is proceeding.

___________________________________________________________________

Frank Arndt: Were many people in Malta surprised by the result of the divorce referendum?

Lorraine Schembri Orland: Polls leading up to the referendum showed that the “Yes” vote would win. However the voter turnout was at 73%, which is far inferior to the voter turnout in a general election. Many stayed at home because of issues of “conscience”.

FA: How have people responded to the result of the divorce referendum? Have you had many calls from prospective clients who are seeking to get divorced?

LSO: Yes. Clients have expressed interest both before, and obviously after the referendum result. The first reading has passed through Parliament but many  MPs are stating they will not respect the results of the consultative referendum and will vote according to their conscience.

FA: Previously, what were the options for unhappily married couples in Malta? Did they stay together? Was it considered socially acceptable to separate? Could Malta-based couples divorce overseas?

LSO: Maltese Law previously gave couples a choice between personal separation – amicable by contract, or judicial – and annulments, both civil and Church. A foreign divorce judgment would only have legal effect in Malta if one of the spouses was a national or domiciled in the country where the divorce was pronounced, so it was not easy for two Maltese to divorce abroad unless one of them changed their domicile. Married couples would not stay together and personal separations have been on the increase for several years.

FA: Why, in your opinion, has the Irish Family Law Act been used as a starting point?

LSO: Well, I think it was the perception that Ireland is a Catholic country, like Malta. For example, Irish law was used as a model in domestic violence legislation. It seems strange to me that we do not look to countries with a civil law tradition based on the Code Napoléon.

A bit of background will explain matters. This Bill was a single Member’s Bill, introduced by the MP who holds the one vote in the Prime Minister’s Party that can topple the Government. So it was introduced against a political backdrop. There was no prior consultation, contrary to previous family law reforms, which were introduced amidst widely conducted information campaigns.

We are now faced with an important law, which will go to the core of family law in Malta, passed in a rush without consultation or contribution on substantive issues by the legal profession, constituted bodies and the public in general. It is also incomplete as the Bill stopped short of pension issues.

FA: On what grounds will a court in Malta grant a divorce?

LSO: The Bill provides that divorce will be a “no fault divorce” and the parties must have been “living apart” for four out of the last five years. Also there must be proof that a reconciliation is not possible.

FA: How many people in Malta are likely to be affected if and when the Divorce Bill becomes law?

LSO: No statistics are available. However if divorce requires a five-year de facto separation period, it may well cover all of those who are already in the process of separating.

FA: That’s a potentially lengthy separation period. Does the Divorce Bill make it possible for people to apply to the court for interim maintenance or final settlements during that period? If not, how is the vulnerable party to be supported and protected?

LSO: I would suggest we wait until the Bill is enacted, when I will be in a better position to answer these questions. I don’t think that a divorce settlement will depart from a separation settlement, for the time being. On the contrary: we are used to inserting a clause in a separation agreement, which states that the agreement cannot be varied in the eventuality of a divorce .

FA: Have any requirements been put into place to ensure that in Malta, divorcing couples are aware of alternative methods of dispute resolution, such as mediation and collaborative divorce?

LSO: Mediation in separation proceedings is compulsory in Malta. Mediation is also compulsory in proceedings concerning child custody and maintenance, so we do have a mediation culture already.

FA: Do prenuptial agreements, signed in Malta or elsewhere, have any legal standing in Malta? If so, do you expect prenuptial agreements and postnuptial agreements to become increasingly popular?

LSO: Prenups and postnups are valid in Malta if drawn up by a Notary Public. A postnuptial deed will require prior court authorisation. The agreements are limited to a choice of regime and maintenance. Contracts published abroad will have to satisfy private international law rules for validity and recognition.

FA: England has a reputation as “the divorce capital of the world”, because there is a perception that wives receive relatively generous financial settlements here. Do you think that Malta will become an attractive option for certain types of people who are looking to get divorced?

LSO: Maltese courts traditionally favour custody to the wife and maintenance for her as the carer of the children. However if a wife works, she would generally not receive maintenance. Her maintenance rights would be suspended until such time as she would be without employment.

As to financial settlements, a couple living in Malta would be subject to the rules of the community of acquests. If one spouse has substantial personal property derived from inheritance or gifts, the other party would not be entitled to a share of that property, independent of the number of years of the marriage. Malta is participating in the enhanced cooperation procedure within the EU and it will impact on the Maltese courts’ mindset. A spouse may also request the right to live in the matrimonial home, but this is not automatically granted.

FA: What is the likely impact on Malta’s expat community? Do you expect to see many expat clients?

LSO: I already have a number of foreign clients. Malta’s accession to the EU already left this sort of impact on our legal scene. Until now, divorcing in Malta was not an option for foreigners living in Malta but yes, I expect it to become an option especially in view of EU jurisdictional rules. I also expect to see a surge in Maltese divorces and consequent downturn in civil annulments.

FA: What financial orders or ancillary relief orders can a Maltese court make? For example, what about maintenance pending suit orders, property adjustment orders, pension sharing orders and financial compensation orders?

LSO: Maintenance orders pending suit are requested in every case, so these are not new. The courts will dissolve the property regime on a judgment being pronounced.

As to pension sharing orders, these are consequential on maintenance orders, but the big issue now is how pensions will be regulated in Malta upon divorce. The Bill has not reproduced the Irish provisions on pensions, but we have asked for specific provisions as such a matter cannot be left unregulated.

As to financial compensation, again this depends on the division of property. Maintenance can be converted to a lump sum payment or capital transfer upon separation, so I expect that this will be the case on divorce.

FA: Who pays for divorce costs? Can one party be held liable for another party’s costs?

LSO: The party at fault bears costs in the Maltese courts. However divorce will be “no fault”, so I would expect that each party will bear his or her costs.

FA: What does the future hold? Do you think that divorce is likely to become even easier in Malta, as time goes by? Will it lose its social stigma? What are your predictions?

LSO: I think that several years would have to pass before the grounds for divorce were touched.  Couples are also cohabiting, and many people who have separated have declared they will not remarry. Going through a contentious separation makes people wary of making the same mistake! In this respect, I think Malta will reflect the mix found in neighbouring societies.

Importance is still given to the traditional marriage as the basis of a stable society. The lesson that has been learned is that people should only marry if they have a mature understanding of what marriage is all about  and wish to commit to one another.

FA: Thank you, Lorraine.

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Frank Arndt heads the International Law Department at Stowe Family Law. He is a qualified lawyer in two European countries, a qualified judge in Germany and a registered European lawyer with the Law Society in England.

An expert in cross-border family law, Frank regularly advises on cases involving families and assets scattered across continents.

Lorraine Schembri Orland runs her own boutique firm, FSO Legal in Valletta, Malta. A specialist in matrimonial and family law before the courts of civil and criminal competence, her expertise includes cases with a significant international element, from child abduction, divorce and annulment, to succession and estate law.

The first female member of Malta’s Chamber of Advocates, and a recognised practitioner before the Maltese Tribunal on the nullity of Catholic Marriage, Lorraine speaks English, Italian and French.

Browse expat forums, and you will discover that there are many “stuck parents”. It is sad to read that so many people now feel that they are “trapped” in a country where they do not wish to live. The alternative – moving back to the UK and leaving a child or children behind – is unthinkable for most parents. As a result, a parent can be left to grapple with life in a strange country, with no family to support them other than their former partner. The parent is left feeling lonely and isolated, which can in turn have a detrimental effect on the child.

When the court denies an application to leave, this is usually because the court believes that it would not be in the child’s best interest to relocate. The child’s welfare is of paramount consideration. However it seems nonsensical to think that it is in the child’s best interest to force a parent to leave the child behind or stay in a country to which the parent has no real attachment.

A note on emigration

When a couple decides to emigrate from the UK, little thought is given to what will happen if the relationship breaks down while they are living in another country. Many parents think that if their children were born in the UK that they will simply be able to return with them from Australia, New Zealand, USA and so on, but this is simply not the case. Sadly, a lot of parents find this out the hard way.

Many parents have new wills drafted before they emigrate, to state what will happen to the children if the parents die while the family is living in another country. So why do so few parents ask a family lawyer to draft an agreement about what should happen to the children if they split up? It is advisable to have, at the very least, a discussion about will would happen to the children in the event that the parents split up and one parent wants to return to the UK.

Obtaining the court’s permission

If a relationship breaks down and one parent wishes to return to the UK, that parent needs to have the other parent’s consent to take the child with them. If they do not have consent, they need the foreign court’s permission.

Obtaining the court’s permission is often a long and expensive process, with much emotional turmoil. Some parents spend tens of thousands of pounds in legal fees, fighting to be allowed to take children back to the UK with them. Having an agreement in place could, at the very least, minimise some of this. The parent who wishes to stay could still try and fight it, but if there was an agreement in place the relocating parent could have a stronger case.

The Hague Convention on Child Abduction

Many parents are tempted to return to the UK and “see what happens”. I can understand why parents might want to do this, but it is not a good idea. If the country from which the child has been removed is signed up to the Hague Convention, the parent left behind can make an application for the child to be returned.

Many of the countries to which Britons emigrate to are signed up to the Hague Convention, and a full list can be found here.

In these circumstances, the parent who has taken the child back to the UK will be treated as having abducted their child, because they have removed the child from the country in which the child is habitually resident. If a return is ordered though, it does not necessarily mean that the court is saying it is in the child’s best interest to live in that country. It means that the foreign country’s court has jurisdiction, and that the parent must secure permission to relocate from that court.

Under the Hague Convention, there are certain instances when the court does not need to order that the child is returned. These are as follows:

• If more than one year has passed since the child was removed from the country of habitual residence, and the child is settled in his or her new environment.
• If the other parent consented to the relocation or the court granted permission beforehand or afterwards.
• If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
• If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.

Should a parent be faced with a Solomonic choice?

Certain countries are notoriously hard to relocate from. Take the recent case of B v K [2010] NZCA 96. The court decided that the mother could not relocate from New Zealand to Australia because, due to the length of the litigation, shared parenting had been put in place and appeared to be working. The “risks associated with parental conflict or the risk that the mother might become isolated to the extent that it affects her ability to be a good parent” were not sufficient to justify what had become a “good working solution for the children”.

My thoughts on this are that if the mother becomes so isolated and unhappy that it affects her ability to be a good parent, the court’s decision would not be in the children’s best interests.

In the UK, the rules regarding relocation take into account the effect that not allowing the move will have on the parent, and the subsequent effect that upon the child’s wellbeing. To me, this is much more logical than simply ignoring the parent’s state of mind. If a parent is isolated, unhappy and has no support system in terms of family, the parent’s distress is likely to have an adverse effect on the child. Surely it cannot be in the child’s best interest if, in these circumstances, the court forbids the child and parent from returning to the UK.

The reader who contacted this blog and shared her story told of the Solomonic choice that she was forced to make:

In this country, the parent who wishes to relocate is first asked by the judge and also the court psychologist whether he/she will stay with the child if denied relocation, even when the reasons for wanting to return are good. An answer of “no” is often taken to be proof of a lack of care for the child, resulting in the child being handed over to the non-relocating parent.

This seems wholly unfair. The parent is faced with the terrible choice of being stuck in a country where they are unhappy, or returning to the UK without their child. It could also be argued that if the parent answered “yes” to this question, the court could infer that it would not be so terrible if they denied the parent permission to relocate. This puts the parent in a terrible position, pitched against a system against which they may feel that they cannot win.

The American case of re Marriage of Burgess (1996) 13 Cal.4th 25, which concerns the relocation of children, states that neither parent “should be confronted with Solomonic choices over custody of minor children”, and this is entirely correct in my view.

Coming next: what rules are applied to cases in which one parent wishes to move, with the child, to another country?

Laura Guillon is a trainee solicitor at Stowe Family Law. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

On the blog this week, we are going to look at the fraught subject of relocation in more detail. We will be examining external relocation (leave to remove from England and Wales) and internal relocation (within England and Wales). When one parent wishes to move away with the children, there are no easy answers. In different countries, different rules and priorities apply. Compare this reader’s experience with that of a father in a case recently heard by the Court of Appeal. It is often impossible to reach a solution that satisfies all parties.

“I’m a stuck mum”

I am, I believe, one of a great number of women who have been trapped by family court decisions. My relationship with an overseas national fell apart, and now I live in a remote area of the world (let’s call it “Faraway Land”) where I have no family or support system.

I have two children from a previous marriage, who have always lived with me.  I met a new partner, a native of Faraway Land, and we had a baby. My partner informed me that in his home country, life was safer, healthier and more family-friendly. He also persuaded me that if we moved there, it would be to our financial advantage.

In retrospect, the relationship already had a few cracks in it. I also believe that he may have wanted to improve his prospects of winning custody of his own child, a toddler at the time, by being able to draw upon his own legal and financial system, which he knew well.

We moved to Faraway Land, to a rural area, and for a couple of years we shuttled the older two children back and forth between their biological father and their new stepfamily. However we soon ran into debt as it was simply not an affordable scheme. The cost of living was much higher than at home. My older children and I found it difficult to settle in, and my relationship with my partner deteriorated. It was a clear flop. We just wanted to go home.

My partner dug his heels in. He refused to take any actions to sell up and return, then informed me that Faraway Land had jurisdiction because our child had lived there nominally longer than in the child’s country of birth. He demanded that the arrangement continue as it was. I tried to find local accommodation, but ended up in a women’s refuge, having left him the house and car so that he could find a job.

I consulted a few lawyers, one of whom told me that despite the circumstances, I had a four per cent chance of being permitted to relocate. This was due to my older children being of an age to make a decision, and the youngest too young to do so. In this country, the parent who wishes to relocate is first asked by the judge and also the court psychologist whether he/she will stay with the child if denied relocation, even when the reasons for wanting to return are good. An answer of “no” is often taken to be proof of a lack of care for the child, resulting in the child being handed over to the non-relocating parent.

The lawyer who took my case was not the one I should have picked, as he never had much time and he was not clear in his communication with me, but he was recommended by someone I liked and trusted and all the other lawyers in town were busy.

I was panicking at this point. None of us wanted to live here, but seemingly we would be forced to do so anyway. The ladies at the women’s refuge told me to “do a runner”,  so that I would at least have a few years left to enjoy my children’s youth before I was dragged back to Faraway Land by the Hague [Convention]. I thought this would be illegal and decided to play with a straight bat, as my lawyer recommended.  I encouraged my child’s relationship with his father and tried to keep things as civil as possible despite our pain and panic. Ultimately my good behaviour didn’t matter in court, but I know women who did do runners and who were pulled back to Faraway Land by the Hague [Convention].

It took almost three years just to obtain a decision, such was the bureaucracy.  My child’s father’s lawyer regurgitated all manner of concocted and irrelevant assertions, in an effort to cast aspersions on my parenting. No evidence of anything was offered.  Only accusations and mud.  All my evidence remained in stacks and files in my lawyer’s office, never introduced either in affidavits or in court.

The half-siblings did not matter to the court.  I was blamed for the financial problems, for being “disorganised in my finances”. This, despite the fact that I had managed my own business at home for 30 years without a hitch. Their dislike of living here and their stepfather’s treatment of them were dismissed as no longer relevant.  So while the mother (myself) and other children did not want to stay in Faraway Land, the father played his home advantage. I was denied leave to remove my youngest child. I found I could not convey the tragedy and causality of our situation in court.  I was of the impression that they wanted to rush the case through because of their backlog and the amount of time it had already dragged on.

My child’s father made a big deal out of my son’s grandparents being very available to him, one of the benefits of our child staying in Faraway Land. Yet he barely saw them at all, and rarely mentions them.  They have since moved out of the area.

The proceeding felt like an anti-relocation farce to me. This didn’t seem to be about “families” at all – it was a simple belief that all one child needs in order to be happy is the isolation of two parents in a status quo situation.  It is a very simplistic formula, being applied to one complex case after another, just to move them through an inefficient court system.

My child’s father won shared parenting, and we don’t know when we will be able to go home. Ever? Soon? Next year? When my youngest child turns 16 and the others are all grown up? This process itself is abusive of families. We can’t make any longer-term decisions about any of our lives while pinned down to a place where no one actually wants to be, and the provisional misery being generated cannot be good for this child.  The courts are pinning us down like butterflies on corkboards and saying, “this is how we will create stability for this child”.

I have struggled with the debt left by the marriage, the loneliness and the high cost of living. The recession is awful here, and citizens of Faraway Land have been fleeing to healthier economies. We don’t even have the freedom they have to do this! One of my older children lives with his biological father in our home country, and homesickness is the overweening flavour of our household.  This is not good for anyone, including my youngest child who is the object of the case.

I have held it together, working like a maniac to stay afloat. I co-parent, am pulling myself out of debt, studying, caring for my children.  But genuine emotional cracks started to develop after the court permitted us to return home for a visit.  This visit was made after years of being prevented from leaving Faraway Land. Home was everything I remembered it to be. Family, friends, natural beauty, emotional warmth, comfort, ease, stimulating activities, inexpensive living… It was glorious. My youngest child loved it there as well, and he has uncles, an older brother, similarly-aged cousins to play with and no lack of male role models and relatives, unlike here.  We could own our own home and not be bumped from rental to rental.

It was terrible returning to Faraway Land after this visit. Now I am living day to day, unwilling to jeopardise my professional work by going on anti-depressants.  I was told by local doctors that anti-depressants are a “solution” to which many unhappy expats resort, whether they are stuck due to children or some other reason.

I have spoken to so many other women in the same situation. In one case the mother had to “import” her own mother from the UK on a humanitarian visa just to have family nearby, she was in so many bits due to the decision.

My youngest child deserves to experience the culture he was born into, for at least part of his childhood, so he can make an informed decision as a teen about which society he prefers to live in as an adult. His remaining sibling and mother both want to be home. It is all the harder for me to have two other children affected by this case as the years drag and drag. It is not about just the youngest. It is harming my mother, my other kids, other people back home who want to be a part of our life, to help and be helped by us – and cannot because we can’t make any long-term plans!

I perceive that the vision of families in the courts these days is not an organic one, and the judges are not weighing enough factors in making their decisions.  They are focusing on the child-made-happy-with-status-quo-and-two-parents formula and decreeing unnatural, stressful situations to try and bring a dead fairytale to life for that child, whose world has already irrevocably changed with the splitting-up of his parents.

Image credit: Orin Zebest.

We are going to examine the interaction of three recently published cases:

• Schofield v Schofield
• Traversa v Freddi
• Chandler v Chandler

We will also be looking at the Supreme Court’s decision in Agbaje v Agbaje. And if that isn’t enough, we’ll throw in CG v IF, a High Court case involving a divorce in Switzerland, for good measure!

Overseas courts and English pensions: Schofield v Schofield

From little acorns, big oak trees grow. Thus it happened in Schofield v Schofield, which recently made it to the Court of Appeal and was reported at the weekend. I do not doubt that this relatively small money case will have a substantial impact on the outcome of many transnational cases, which will probably involve assets of far greater value. I also believe that it has set out fundamental principles for lawyers to consider when dealing with English pensions, all over the world.

Schofield v Schofield has been reported at the same time as two other Court of Appeal cases, Traversa v Freddi and Chandler v Chandler, and I think it is fair to say that those two cases have contributed to its impact.

On the face of it, Schofield v Schofield involved relatively little in terms of assets or principles. A British Army soldier, serving in Germany, divorced in Germany. He had been married to a German woman, and the couple had three teenage children. The only capital the parties had, some £87,000, was divided equally in Germany. The German court had power only to order an equal capital split.

The wife worked in a chemist shop, earning a modest income. The husband was left with his own income, his share of the capital plus… his Army pension. This had a fund value of £280,000, but the German court acknowledged that it had no legal power to deal with it.

Overseas courts do not generally have jurisdiction over English pensions. This is a big problem for anyone divorcing abroad, where one of the assets is an English pension and potentially the most valuable asset of all, as in this case. It is one of the considerations to take into account when deciding whether to divorce abroad or in England or Wales. Equally it is a problem when the divorce is taking place in England and the pension is elsewhere, so it needs considering very carefully.

In Germany, the husband had thus managed to hold onto his pension. The wife didn’t give up – as the German court clearly intended she should not. However she had to come here to England for her remedy.

At first instance in this country, when the wife applied for leave to proceed for a pension share, her application was unsuccessful.

In another case, CG v IF (2010), Mr Justice Mostyn had already stated that in order for leave to be granted, an application had to be shown likely to succeed:

“In my opinion a solid/substantial ground will be shown where the court can confidently say that the probability is greater than or equal to 50 per cent that the applicant will achieve a substantive order were the matter to be tried.”

In Schofield v Schofield, Mr Justice Mostyn took the view that the income produced if a pension share occurred would be “paltry” and  was unlikely to have affected the original overall settlement in Germany. Accordingly he dismissed the wife’s application for leave to proceed in England, under Part III of the Matrimonial and Family Proceedings Act 1984.

Was Mr Justice Mostyn right? Er… no!

It is worth reading the law in Part III because it sets out, in chronological order, who can apply for a “second bite of the cherry” in England following foreign matrimonial proceedings.

Here is the procedure. Leave of the court is first required and is given ex parte without the other side knowing or being present. In giving leave, the judge must be satisfied that there is a substantial ground for the making of the application for the order. Let’s take a look at how it works in practice.

More than a “good arguable case”: Agbaje v Agbaje

Agbaje v Agbaje is a case about which I have written previously. Heard in the Supreme Court in 2010, it involved a husband and wife who were married for 38 years. They both had British and Nigerian citizenship, and the wife had lived in London since 1999. The couple divorced in Nigeria in 2005 and, out of assets of about £700,000 the wife was awarded about £21,000 and a property in Lagos.  She sought a “second bite of the cherry” in England, and the Supreme Court ruled in her favour.

When Agbaje v Agbaje was heard in the Supreme Court, Lord Justice Collins set out the threshold to be crossed before leave to proceed is granted:

“The principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a partner. The threshold is not high, but is higher than ‘serious issue to be tried’ or ‘good arguable case’ found in other contexts. It is perhaps best expressed by saying that in this context ‘substantial’ means ‘solid’.

Note that he made no reference to a “50 per cent” probability of success.

Assuming there is a “solid” claim, the Statute then sets out jurisdictional requirements to be considered, which means that the proposed applicant needs to satisfy the court that the court has jurisdiction based on domicile, or habitual residence or because there is a former matrimonial home in the jurisdiction. Then there is the duty of the court to consider whether England and Wales is indeed the appropriate venue. Section 16 (2) of the Matrimonial and Family Proceedings Act 1984 sets out the considerations for the court to take into account.

If all is well, leave is granted, the case goes to a hearing and the available remedies are those available to divorcing parties in this country.

Once granted, it is very difficult to set aside unless, in the words of Lord Justice Collins, a “knockout blow can be delivered”. In all other cases, an application to set aside will be heard at the same time as the full hearing.

(NB. Important warning to any would-be applicants: don’t remarry before you proceed or you won’t be able to do so!)

Part III is brief and isn’t difficult to understand. If you read it, however, you will not find Mr Justice Mostyn’s approach there. This omission was noted by their eagle-eyed Lordships in the Court of Appeal, led by Lord Justice Thorpe, who cross-compared Mr Justice Mostyn’s approach with the higher authority of Lord Justice Collins and declared it a no contest. So in the case of Schofield v Schofield, leave was granted.

Leave refused, then granted: Traversa v Freddi

The Court of Appeal, again led by Lord Justice Thorpe but sitting with Lord Justice Munby, was coincidentally giving judgement in another, very similar case at the time. Traversa v Freddi was a case involving a wealthy woman and a restaurateur from a relatively modest background who signed a prenuptial agreement in Italy, married there and divided their time between Italy and England. The marriage ended after 20 years and the couple divorced in Italy.  After the husband was ordered by an Italian court to pay his former wife maintenance and vacate the family home in London, he applied to the court in England for leave to vary the settlement.

When the case came before Mr Justice Bodey, he refused leave to the Italian husband to proceed in this country after the Italian case had been decided, even though it involved the husband’s home in England. Mr Justice Bodey did so because the Supreme Court had not yet handed down its judgement in Agbaye v Agbaje. He therefore applied the law as it was, not as it now is.

The Court of Appeal allowed the appeal in Traversa v Freddi and spent a good deal of time rebuking Mr Justice Mostyn for his approach in CG v IF. Lord Justice Munby described that approach as “doubly wrong”.

The Court of Appeal does not mince its words! Instead, in proper English fashion, it delivers caustic rebukes in elegant style! In Schofield v Schofield the Court of Appeal referred to Mr Justice Mostyn’s “gloss” and “trenchantly rejected” his interpretation of the requirements of the law.

Schofield v Schofield: a return and reversal

The Court of Appeal’s reversal of the decision in Traversa v Freddi provided one immediate reason to reverse the decision in Schofield v Schofield. The Court of Appeal also took the view that when compared with the £87,000 capital, the pension was in fact very significant.

So despite Mr Justice Mostyn’s conclusion, Schofield v Schofield eventually passed Lord Justice Collins’ test of “solidity”.

Perhaps more importantly for lawyers who followed the case with interest, Lord Justice Thorpe also made it clear that the case raises an important policy point:

“It does seem to me very important that, where a pension is rooted and funded within jurisdiction A and where the divorce is to be pronounced in jurisdiction B, with all ancillary issues decided according to the law of state B, it is very important that there should be judicial collaboration to ensure that the applicant in state B is not deprived of her entitlement to share in the pension rooted and funded in state A.  This case is a good example of one in which the German court has sought international collaboration and has implicitly called upon the English court to determine any issue of pension equalisation.”

This, it seems to me, is exactly what Lord Justice Thorpe has done throughout his career, particularly as head of the Family Justice Council. He has worked extremely hard to forge relations across the world with other judges and courts so that seemingly barred doors have been opened to obtain swift and, where appropriate, reciprocal justice for litigants.

The limits of cooperation: Chandler v Chandler

In Schofield v Schofield the German courts were looking to the English court for assistance, and we cooperated and provided that assistance. But let’s not get carried away. Cooperation has judicial limits. It does not mean we will ever go so far as to apply another country’s own law and perhaps save everyone the (extremely expensive) need to have two sets of court proceedings in two countries. In England and Wales we are committed to applying only the lex fori: the law of the country in which the case is heard.

The third of our recently published cases is Chandler v Chandler. In this case Lord Justice Thorpe, sitting alone, upheld the decision of Mrs Justice Baron and firmly declined to apply the law of Gibraltar to a divorce case:

“It is a very important feature of our relationship with the developing family law of Europe that we tenaciously uphold our principle that only the lex fori applies in the courts of England and Wales.  We have exercised our right to abstain from developing European family law that would require us to apply the law of some other jurisdiction.”

So Germany applies its law and we will apply ours. England and Wales will cooperate and we expect other courts to cooperate with us. That is as good as it gets. Unlike certain other countries, we do not routinely apply others’ laws to cases heard here. But is this right? That is a question for another post…

This post was selected for the 20^th March 2011 edition of Carnival of Wealth, hosted by Value Stock Guide and Carnival of Money Stories #98 – St Patrick’s Day Edition, hosted by Money Thinking.

From the Law section of The Times website, 19/10/2010.

Prenuptial agreements are great – for the rich

By Marilyn Stowe

After nearly seven months of deliberation, it is ironic timing that as the Government announces swingeing cuts to the justice system, no fewer than nine Supreme Court judges are to finally hand down their decision in the glamorous case of multi-millionairess Katrin Radmacher and her former husband, Nicolas Granatino. The hard fought case concerns the validity of a prenuptial agreement made in Germany between a German and French national living in this country. The agreement was not upheld in the High Court, although it was later upheld by the Court of Appeal. Both courts used the same law, applying their judicial discretion – only to arrive at different conclusions. The judges of the Supreme Court will express their own views, and the majority opinion will prevail until there is statutory change of the law in Parliament. So what is all the fuss about?

Prenuptial agreements are not automatically binding in law in England and Wales. Such an agreement is only one factor for the courts to take into account when considering the principles set out in section 25 of the Matrimonial Causes Act 1973. The overall aim is to achieve fairness which, for most parties, means meeting the parties’ “reasonable needs” as there are no other assets to share. If a prenup is considered fair by a court, given the circumstances of the parties on their divorce, it will be upheld. If it is not, and needs take precedence, then it may still be taken into account in determining the final outcome even if the arrangement is not fully applied. In England, unlike some other European states, only English law is ever applied. A couple lives within the jurisdiction of the English court and the court applies English law; not the law of the country in which the agreement was made, nor the law of the parties’ nationalities.

As the Supreme Court decision in the case of Radmacher v Granatino is handed down, the Law Commission – which recommends potential changes in the law to government – is currently considering this area of the law. Some key questions are being asked:  should prenuptial agreements be automatically binding? If so, to what extent should they be binding? Should new legislation be enacted, or should there simply be amendments to the Matrimonial Causes Act 1973?

Earlier this year I was invited to speak to the Law Commission about my views on this subject, and I spent an intriguing and highly erudite session at their offices with two of their lawyers, discussing principles and possibilities. I was asked to keep the content of the conversation confidential and I have done so.

However I believe it would no longer be off limits to report I was told “there is a general appetite for change”, given that the Law Commission has confirmed that various options will be put forward to Government. These include recognition of prenuptial and postnuptial agreements and a draft bill for consideration by Parliament. The challenge will be to balance the needs of rich individuals who wish to protect their wealth, whether earned or inherited, with the needs of the average couple who may have little, or nothing, to divide if they separate. We don’t have strict division of assets in this country. Thus legislation in this somewhat “niche” area would be aiming to protect the haves against the have nots.  Would legislation that conflicts with the law’s overall aim of fairness and meeting both parties’ reasonable needs be desirable – or even necessary?

As a practising family lawyer for more than 25 years, I have become a believer in the maxim that if the law ain’t broke, it doesn’t need fixing. District judges apply discretion daily, using their own knowledge and experience when applying law to couples who come before them, and I don’t believe that the law is “broken” higher up the scale either. Our judges have previously spent many years working in practice; judicial discretion is hard-earned and a valuable tool of our law. It should not be lightly abandoned in favour of rigidity and even codification, which may bring about injustice rather than the intended effect.

Some of those who favour new legislation have argued that because the current legal status of prenups is uncertain, some men and women have been deterred from marriage because they are so fearful of potential divorce payouts. However modern family life renders such arguments utterly unconvincing.  Consider Ed Miliband, the determinedly unwed leader of the Labour Party and his partner Justine Thornton.  It is likely that Mr Miliband and Miss Thornton benefit financially from their status as an unmarried couple: after all, they retain separate incomes, assets and capital tax advantages. No social stigma attaches to them or their children and any words of commitment they may have made privately to each other require no public repetition. If couples are deliberately choosing not to marry, it is not because of the law, or any change to the law as envisaged. It is because society has irreparably changed. People are nowadays permitted to be cautious, some deciding not to marry at all or if they choose to do so, not marrying before they have had time to test the fundamental basis of the relationship and started a family.

As a direct result of a more tolerant society we are now seeing a reduction in the number of couples getting divorced. We are also seeing an increase in the number of unmarried couples breaking up for which there is no legal regulation in England and Wales (although there is in Scotland).

Two years ago a Law Commission report recommended a cost-effective measure of legal protection for cohabiting couples in the case of family breakdown. It respected marriage, but proposed financial support where economic imbalance had resulted from a broken cohabitation. Sadly that report, which proposed a useful form of modern justice for the fast growing number of unmarried families throughout the country, has been left to gather dust.

Instead, all eyes are upon heiress Katrin Radmacher and the glitzy case that will help decide the future of prenuptial agreements in England and Wales. Forget the hype and the clamour: when that much-anticipated ruling is handed down and when the Government spends its valuable time considering the Law Commission’s forthcoming options for prenuptial agreements, it is worth remembering that for all but a select number of wealthy families, new legislation on prenuptial agreements can bring no demonstrable financial or social benefits.

When the second wife of Russian oligarch Boris Berezovsky was granted a “quickie divorce” at the High Court last week, Frank was contacted by a number of journalists for expert comment and analysis. His comments, about the Berezovsky case and also about the UK’s much vaunted reputation as the “divorce capital of the world”, have since appeared as far afield as Russia and Australia!

Divorce tourists face judicial rethink

Frank Arndt, head of international practice at Stowe Family Law, said: “There is a perception that wives can achieve a fairer settlement in England and importantly there are obligations here for full and frank disclosure of assets belonging to one party, which there may not be in some countries. Often husbands see divorce as a business deal and look at which jurisdiction is best.” Continue reading»

Boris Berezovsky’s wife granted “quickie divorce”

Frank Arndt, a lawyer at Stowe Family Law, which specialises in big money divorces, said: ”The Berezovskys were married for 18 years, have two teenage children and, although estimates of the couple’s fortune vary, it is indeed likely that any settlement eventually awarded to Mrs Berezovsky will dwarf the £48 million awarded to Beverley Charman in 2008.” Continue reading»

London seals reputation as divorce capital as oligarch faces £100 million payout to ex-wife

[Frank] Arndt said Berezovsky may use what is known in the legal profession as the “stellar or genius” argument used by Charman, in which he said his wife had made no financial contribution to the fortune he had built up in the insurance market during their marriage. His case resulted in a discount from the 50:50 position: a high court judge ruled Charman should have 63.5% of the couple’s wealth rather than half because of his special contribution to building it up and because the assets he was keeping were riskier than those which went to his wife.” Continue reading»

SPOUSES WHO GO FORUM SHOPPING FOR DIVORCE

By Liz Parry

If you think your marriage may be on the rocks, think twice about moving to another country, says Frank Arndt

It is well known that two of the most stressful things in life are getting divorced, and moving house.

When the move is to a different country to start a new life in the sun with your partner, though, it seems reasonable to think that at least it is only the stress of moving you are going to face, and divorce is unlikely to be on the cards in the near future. But is this so? According to Frank Arndt, who was in Malaga last week for a meeting of Spanish and British lawyers, all may not be as it seems.

Frank, who works for the Stowe Family Law firm in the UK, specialises in transnational family litigation. Because laws and procedures vary so much from one country to another, some of the more wily would-be litigants, including those who are intent on getting divorced, are going “forum shopping” – filing the case in the jurisdiction most likely to find in their favour and getting a head start on the unsuspecting party. By way of illustration he describes the case of a wealthy man who lured his wife and children to live in South Africa and then divorced her and returned to the UK leaving her stranded thousands of miles away, with children who could not be moved.

Other women have had similar experiences after planning a family move to Spain, where unlike in England, the divorce courts do not insist on “full and frank disclosure” of all the couple’s assets. By the time the second partner in the case gets wind of the impending divorce, it is usually too late: the case will be heard in the jurisdiction where it is first filed. According to Frank, this situation has led in the past to scenes worthy of being filmed. One wife who had moved with her husband to France found out that he was intending to file for divorce in Paris, and immediately flew back to the UK. She rushed to file her own petition in London, but her husband got there first, by ten minutes, and the case was heard in France.

“Cases like these are not isolated,” says Frank. “It is a real problem, and in my opinion both parties should be on an equal footing”. This and other similar issues were being thrashed out by lawyers last week in Malaga, where because of the exceptionally large foreign resident population, there is a high incidence of transnational litigation.

Custody

The problem of being unexpectedly confronted with a divorce case in which the unaware party will probably be financially disadvantaged is obviously compounded when there is child custody to be taken into account. Frank describes European family law as “like a dog’s dinner” and tells the sad story of a case he recently undertook on a pro bono basis to help a woman, Carly Jones, who had returned from Germany to the UK for cancer treatment and was having to fight the German courts for her right to her children. Frank represented Carly in Germany, obtaining an order that they should travel to the UK to see their mother. The German social services refused to comply, and then appealed against a decision to enforce the ruling, and tragically, Carly died just before the appeal was due to be heard.

SUR in English asked Frank if the notorious slowness of the law in Spain was a factor to be taken into account, but he thinks that family law in Spain does not share this reputation. Delays in court procedures cause stress everywhere though, he says, and in Germany a proposal has been put forward to compensate people financially if their cases are held up.

Frank has some advice for those who are involved, or who suspect they are going to be involved, in a family law case. “Get legal advice fast”, he says, “and get the right advice, from a lawyer who will consult with lawyers in the other country, not just go with their own national procedures”.

You can find the latest digital edition of Sur in English here.

Had the case been heard in England, Mrs Agbaje would have received at least half of the couple’s assets. As it was a Nigerian court left her virtually penniless, with her former husband retaining assets worth £616,000. The case has been in and out of our courts for years now, with Mrs Agbaje seeking a fairer settlement here in England.

Today the Supreme Court ruled in her favour – and I was delighted. So when journalists contacted me for comment, I didn’t exactly mince my words (below). UPDATE: Mrs Agbaje’s peerless Queen’s Counsel, Nigel Dyer QC, tells me that the Supreme Court ruled 5-0 in her favour.

I don’t necessarily share the same opinions about matrimonial jurisprudence as Frank Arndt, Head of our International Law department, who was quoted in The Lawyer. We hail from differing backgrounds: mine is rooted in the common law with discretion as its key, whereas German family law is strict and codified. And the difference in our approach actually works well in the office, where we can advise clients from differing perspectives.

Incidentally, I have never been keen on the description of London as the “world’s divorce capital”. Even though Stowe Family Law is opening a new London office, I feel obliged to point out that good settlements aren’t curtailed by the M25!

Nigeria divorce judgment attracts attention

By Jane Croft

Law Courts Correspondent

The Supreme Court reinforced London’s reputation as “divorce capital of the world” after it found in favour of a Nigerian woman who took her case to the UK courts after disputing the divorce settlement she was awarded by a Nigerian court .

Family lawyers said the keenly watched judgment could open the floodgates for wealthy spouses in “big money” divorce cases who are unhappy with divorce awards made by overseas courts to seek a bigger payout in the UK.

London has been dubbed ”divorce capital of the world” because recent changes in the law meant wives are now favoured in big money break-ups.

The Supreme Court ruled that Sikirat Agbaje had not received an adequate financial settlement from her barrister husband when the couple divorced in Lagos in 2003 after 38 years of marriage. Continue reading»