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.

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.

Within the European Union, transnational family law does not operate as smoothly as one might reasonably expect, despite the determination to create a genuine area of freedom, security and justice whereby decisions taken in one member state are recognised and enforced throughout the EU.  Member states operate different divorce laws for its citizens, which may vary dramatically in other member countries. When litigants in member states look – understandably – for the smoothest way out of their domestic tangles, they can come a cropper.

It was a stylish and memorable evening (pictured above: with CBBC partner Alexandre Boiche and others). When I arrived at CBBC there were more than 100 people drinking champagne and attacking the buffet. The firm is located in the heart of Paris on Boulevard de Sébastapol, across three floors in a beautiful building just across from the courts on the Île de la Cité, next to Notre Dame Cathedral. I plunged straight in with my terrible French, which fortunately didn’t last too long, because most people took pity on me and spoke English!

I chatted to German lawyers from Stuttgart and Saarbrucken. I had a conversation with a French professor of law about French divorce law; there were diplomats present with an interest in child abduction cases.

Talking, it became clear that we continue to be divided and exercised by the laws that appear, vanish or change whenever a border is crossed. For example, Paris isn’t London. We don’t have a Civil Code; we have statute law and conventions of judge-made law.  La Manche divides us geographically (even if there is a tunnel underneath) but there is an economic, cultural and social divide that is reflected in our different law, practice and procedure.

Now that citizens of EU member states can travel freely, live in the EU country of their choice and trade anywhere within the EU, the legal challenges are being highlighted with increasing frequency. Thousands of nationals from different member states, who have decided to move elsewhere, have later found themselves caught up in family breakdowns in alien jurisdictions and cultures. I have described these challenges, along with some of the advice that we offer Stowe Family Law’s expat clients, in a previous post about international divorce.

There are ongoing attempts to make life easier for litigants across Europe: the recognition of foreign divorce decrees and foreign judgments, the enforcement of foreign judgments (in relation to maintenance and particularly in family law, dealing with children who are moved by their parents from country to country within the EU).

Even so, family law matters remain subject to unanimous agreement by every member State. Any plan to remove the national veto in relation to family law must be approved by our Parliament and every other national parliament in the EU. To obtain consensus across the board is a logistical nightmare. The surface is being scratched but the wheels grind very slowly, despite the best intentions.

To get some idea of the size and scale of the problems that are increasingly being faced, take a look at the website of the European Judicial Network, paying particular attention to civil and commercial matters

The website provides fascinating reading, setting out details for all its member states, community law and international law to boot. But don’t you get the impression that whatever they may say, however many conferences, committees, programmes, meetings, discussions, and resulting papers are produced, it isn’t working as well as it might?

Will it ever be possible for EU citizens, who can travel so freely, to no longer need to go forum shopping to take advantage of the “best” jurisdiction? For EU citizens to no longer fear moving to a different member state with “unsuitable” domestic law?

If you are planning to move to another country, think ahead. Consider signing a postnuptial agreement before you go, for example, so that if the worst does happen you do not find yourself stuck.

The will to succeed is there. I noted that in Paris, although the attendees had come from different countries and spoke different languages, our aims, concerns and enthusiasm for the practice of family law in Europe were shared.

However the challenges loom large, appear to be insurmountable and are soaked in European politics. In truth I will be surprised to see real harmonisation in family law, particularly in relation to matrimonial property. For the foreseeable future and beyond, I fear that we are limited to what we have now.

“Plus ca change – plus c’est la meme chose.”

If worst comes to worst, make sure you have back-up.

If your intended spouse is a foreign national and you are going to move overseas to be with them, are you aware that if your marriage breaks down, you may be unable to return home to your family with your children?

You could, for example, be held to a pre-nuptial agreement in a foreign language that you did not understand when you trustingly signed it. What if it makes no proper financial provision for you or your children?

You may be submitted to the mercy of a foreign court – a religious court, even. What if it enforces a decision weighted against you, a decision that a court in your home country would not contemplate? At best, your departure would be authorised and you would then have to uproot your children and change their entire way of life.

At worst, that court’s decision could leave you in a terrible situation: legally unable to leave that country with your children. 

As for fleeing your spouse’s country without permission: I have been involved in child abduction cases all over the world. The outcomes can be heartbreaking, with parents permanently separated from their children until adulthood. Would you wish that to happen to you?

As the head of an English family law firm specialising in international cases, I have litigated many such cases and encountered the scenarios outlined above. I know that when you are in love and your heart is ruling your head, such possibilities seem distant.

However, if you are about to marry and move abroad to be with a foreign national, I recommend that you do what you can to ensure that if worst comes to worst, you can extract yourself with minimum difficulty.

If you are English, do not under any circumstances sever your links. I strongly recommend that you maintain a place of residence in England – even if it is your parents’ home. Visit as frequently as possible. If you can do some work in England, do so.  Maintain an English bank account and save as much as you can, in case of a rainy day. If you must hand money or property over to your spouse, take every step you can to ensure that it is protected. Do maintain a doctor, dentist and other links with England. Make sure your children visit England frequently and stay there as long as possible during their frequent visits. Make sure they speak and understand English and are comfortable and confident in an English environment. When they are in England encourage them to make friends, attend activities and feel settled, just in case they ever move there – as a result of divorce or otherwise.

But first, dare I say it: draw up a prenuptial agreement that will also be recognised in the country in which you intend to live, agreeing that in consideration of the forthcoming marriage:

1. Both parties irrevocably submit to the exclusive jurisdiction of the English court in relation to any matter arising out of the agreement, including any challenge to its validity.
2. Both parties irrevocably consent to the English courts exclusively making orders in relation to the marriage including orders in relation to finances, residence and contact with the children.
3. Both parties irrevocably consent to fully comply with and fully execute any order made by the English court, and irrevocably authorise the foreign court to enforce any such order in the event of default.
4. Both parties irrevocably undertake not to institute marital or family proceedings against each other in any other country, notwithstanding any entitlement or connection the parties may have with that country.

(Please note: this checklist is intended as a preliminary guideline only, and is not comprehensive. You must not rely on it and you may need advice from lawyers in both jurisdictions, but I believe it will be worth the expense.)

The provisions of such an agreement should also include full disclosure of the parties’ finances and a financial settlement (and how it is to be paid and even security for payment). Proposed arrangements for any children should include their main country of residence post-divorce, where they are intended to be educated and how their time is intended to be divided between their parents. In cases of serious risk there may be security provisions; for example, governing the obtaining and deposit of the children’s passports.

Provisions may also include a review after a certain passage of time. Any agreement should be negotiated at arm’s length, with both parties being fully and independently advised by the lawyers in a language they understand.

For me, the most important consideration is one that I have dwelt upon in another recent post: how prenuptial agreements affect the balance of power in a marriage. In the case of marriage and a move overseas, the bride is taking all that risk upon herself and her unborn children. It seems to me that by signing a prenuptial agreement, the future husband would be acknowledging and safeguarding his future wife against the unfair consequences of that risk.

‘A last desperate hope’ from far flung shores

A few weeks ago I attended my niece’s wedding at Ronit Farm near Tel Aviv, Israel. Although the bride, groom and all their respective families were born and brought up in Leeds, Yorkshire, they chose to celebrate their marriage under a canopy (called a ‘Chuppah‘ pictured) in the traditional Jewish way rather than in a local Synagogue or hotel back home.

The turn out was tremendous. Guests comprised the young and not so young and the golden couple were supported by over 100 of their glamorous ‘twenty-something’ friends. It was undoubtedly one of the most beautiful ceremonies I have ever seen. The setting was stunning and truly romantic, with the bride and groom tying the knot at sunset in the open air against the glorious backdrop of a lake lit by torches. The fragrant and spectacular flowers including rose petals were strewn along the aisle and the music was magical.

The cosmopolitan nature of the guests enhanced the enjoyment with independent and confident like-minded world travellers jetting in to the Middle East to party hard and celebrate the wedding. Dancing almost to dawn, the ladies jettisoned their stilettos for flip flops that my sister as a perfect Mother of the Bride, had thoughtfully provided for everyone!

Career-wise, the bride and groom and many of their friends hail from the medical profession. It also appeared that most of the famous London and US firms were unknowingly well-represented at the wedding and there was an eclectic mix of cultural backgrounds. I noticed one impossibly handsome French accountant (who could have missed him?!) who is currently training with KPMG in Paris. His English girlfriend lives and works in London and they commute to see each other – they make a stunning couple. Many of the Greek, English and Israeli guests are temporarily based in London. Most spoke excitedly about their jobs, which they regard as firmly transnational – because their careers are giving them golden opportunities to travel, work abroad, and, if necessary, to live abroad. All the guests, including a British Airways pilot who had jetted in with his wife, an optometrist, acknowledged that they are privileged to be maximising such wonderful opportunities.

However a stark contrast to the idyll I had been lucky to attend came in an email last week via my contact page, from an English woman who has started a new life and family in her husband’s country in the Far East.

She had trustingly handed her husband the proceeds of her previous divorce settlement, a six figure sum, when they married, and everything is now in his name. The children have always lived in his country, and all the finances and assets are in that country. The marriage had broken down due to his infidelity and cruelty to her, and she has spent the last 12 months searching in vain for a lawyer to represent her. She has found no-one and although I am a Fellow of the International Academy of Matrimonial Lawyers and I have checked the register of members, there is no family lawyer who is a member of the IAML in that country.

This woman wrote to me as a “last desperate hope” of help but even if I could help her, (and I could bring her within the jurisdiction of an English court) it would be a lengthy, expensive and ultimately pyrrhic victory. There would be no way she could hope to enforce an English judgment against her husband in his country, if as I expect, he simply chose to ignore it. And the financial aspect ignores the problem of the children, and where they will live and with whom. She wrote that “I thought I could just take them with me if I left him” when in fact she can’t, not least without starting a battle which could end up with the children being returned from wherever she took them, and her possibly never seeing them again.

What this woman needs, and what perhaps may be almost impossible, is a negotiated settlement in his country, with her fully understanding that she cannot expect to obtain an order on the same terms as an English court would give her. It is a situation to which she freely admits she gave little thought when she first met and fell in love with her future husband, then married him, then had his children and gave him all her money – retaining nothing for herself.

This is a very extreme case, but it is an indicator that the decision to leave English shores for love may be fraught with real difficulty. Had I been advising her before her marriage, as a lawyer, I would have warned her of the pitfalls. I will warn of those pitfalls and how to protect against them in my next post.

Happy New Year – I hope your holiday was relatively stress-free. For some it was not, people wrote to me from abroad for advice about issuing divorce proceedings in England given their respective links with England, such as British nationality, education, owning a property in England etc. It is a growing problem and highlights the increase in the trend of ‘forum shopping’ where globe trotting couples seek a divorce in the most financially advantageous country.

I think it is a problem that should be legally resolved between the parties before the marriage is permitted to take place. Leaving the decision until a divorce is about to happen with the parties living anywhere in the world can create enormous legal headaches for both of them – and enormous legal costs alongside.

In most cases wives have very good reason to file in England because financial settlements may be better for wives than elsewhere. Maintenance payments for example, may not be available elsewhere. It is also possible to search more extensively into the spouse’s finances in England compared to other countries.

But, before you can issue proceedings you need to qualify. If both spouses are domiciled in England, there will be no problem, except that domicile is highly complex: in English law, a domicile “of origin” is acquired on birth and remember, Great Britain is not just England! If a person is born in Scotland, it means their legal domicile is Scotland and a different legal system applies. If a person leaves the country which is their domicile of origin, they may acquire a new domicile of choice. When and how that happens depends on the facts of the case. Domicile is not the same as simply ‘living’ in a country. It means adopting the country in every way and effectively giving up their “motherland.” It is also harder to lose a domicile of origin than a domicile of choice. So deciding whether both parties are domiciled in England is not as easy as it might seem at first sight.

Domicile does not apply in the rest of Europe where the nationality of both parties is the alternative and far more straightforward test. But nationality is more rigid.

An alternative is whether the proposed Petitioner is habitually resident in England and Wales and has resided there for (at least) six months immediately prior to the presentation of the Petition. It used to be the case that “habitual residence” could mean habitually residing in two different countries, thus allowing a Petitioner to argue she was habitually resident in England even if she spent more time in another country, but in one recent case in which the court appeared to standardise this particular meaning of habitual residence to the rest of the EU, it no longer applies.

Habitual residence can only apply to residence in one country where the person’s interests are effectively centred and have to be fully established and demonstrable for at least six months before divorce proceedings are issued. For wives wishing to “up sticks”, return quickly to England and issue a divorce petition, this could be no longer the easy option it once was. However, the good news is that habitual residence can be regained in a day and those who can demonstrate a form of residency in England remains (even though the family have moved elsewhere) can still succeed. In a recent case, a woman who left with her family for Greece retained a room at her parent’s house in London. She took a part time law course in England, worked in England part time and kept returning, maintaining strong links with home. Her ‘residency’ in England (such as it was) transformed to habitual residency once she finally left Greece for good to return to England and she was successful.

But suppose you haven’t retained your English links and you are sitting reading this in despair because the sticky answer to both these questions is “No”;- what else may be available?

s5(2)(b) of Domicile and Matrimonial Proceedings Act 1973, provides that if ‘no court of a Contracting State has jurisdiction under Council Regulations and either of the parties to the marriage is domiciled in England and Wales on the date when proceedings are begun’ then an English court shall have jurisdiction to entertain proceedings for divorce or judicial separation.

This is a useful catch-all, for spouses living in a third, Non-EU country where they wouldn’t necessarily wish to institute divorce proceedings.

The complexities of establishing jurisdiction stretch lawyers’ minds every time the question arises. However, because jurisdiction is critical in cases where the EU holds sway, delay can fatally affect a financial settlement – something which places an unfair pressure on the client when he or she is not yet ready to formally end the marriage.

My advice as a solicitor is to be first out of the starting blocks. If you don’t issue first, you may regret it. However, a warning! If the court finds it has no jurisdiction, you could end up paying all the legal costs.

Compare and contrast however with the fairer situation involving non-EU countries – there the English Court can effect a balancing act between the parties to decide which country is the most closely connected.