International Relocation & Consent

When parents separate and one parent asks for permission to move to a different country with the children various issues and difficulties arise. The other parent may be prepared to consent to the move, but it is often conditional upon various factors. One of the usual conditions for consent to move to another country is that the arrangements for the children to spend time with the parent staying behind (also referred to as visitation rights) need to be agreed and formalised into a binding order.

If the parent remaining in the first country agrees to the children being moved to a second country subject to sensible contact arrangements being put in place with the leaving parent, what happens if the negotiations break down? If no agreement is reached before the move, then the leaving parent may be prevented from taking the children to live in another country as he or she will need the consent of the other parent. If the children are taken without the other parents’ consent then, assuming the move is to a country within the EU or which is a signatory to the Hague Convention on the Civil Aspects of International Abduction, the parent staying behind can apply for the children to be returned to the country where they were last resident.

If the move goes ahead whilst the negotiations about visitation are ongoing, the parent staying behind may still be able to demonstrate that the move was undertaken without his or her consent. In a recent case a mother took the children from Canada (where they had been living with both parents) to England without the father’s consent. The father indicated that he would apply to the court for a return of the children to Canada, but subsequently agreed with the mother that provided the arrangements for the children could be agreed, then he would consent to the children living in England. Two months later, the arrangements had not been agreed and the father applied for the children to be returned to Canada. The mother objected to the return and argued that the father had consented to the children living in England.

The Court held that the mother could not rely on the father’s consent. The father had been very clear that his consent was contingent upon the parties reaching an agreement on contact, which had not happened. The mother had known this was the case, and at no time had she been told that the children could remain in England if no agreement was reached.

This decision demonstrates that it may be possible for one party to consent to a move, but to make that consent conditional upon suitable arrangements for the children being put in place. The intention and conditions should be clearly recorded in any documents or communications relating to the move. The wording would need to be carefully considered and drafted to ensure that the conditional nature of the consent is clearly stated and that no concessions are inadvertently given. In every case there may also be other factors which could result in a different outcome and these may also need to be addressed with the benefit of expert advice. It is therefore important for any parent facing a request for their children to be moved to a different country to seek professional legal advice from an international family law specialist at an early stage.

International Relocation of children – the importance of mirror orders

One of the most emotionally fraught situations for separated parents arises if one parent wants to move abroad with the children, perhaps due to a divorce, to pursue a career opportunity, new relationship or to return to a country of birth or upbringing. It is necessary for the parent wishing to move away from the country where the child has been living to apply to the Court for permission to move with the children outside the jurisdiction.

The Court needs to consider every such application for international relocation very carefully, and it needs to take into account a number of factors. One of the most important considerations is how the child’s relationship with the parent left behind will be maintained. A parent may consent to their child moving abroad on the condition that certain arrangements in terms of residence/ custody and contact/ visitation, are put in place and a Court Order made approving those arrangements. A parent wishing to remove their child is likely to agree to the terms sought in order to secure the necessary permission for the move, but what happens if the agreement for contact or visitation breaks down after the move has taken place?

Many countries in Europe and elsewhere have signed up to agreements which require them to enforce orders made in other countries, but for those which have not signed up to the agreement, there may be no automatic recognition or enforcement of the original order. The court therefore needs to consider various safeguards at the outset to prevent the contact or visitation arrangements breaking down. One such safeguard is a ‘mirror order’ which is an order in the country the child is moving to, which reflects the Order made in the country the child has just left. A mirror order lets the court in another country know that a court order has been made in relation to the relocation and the conditions on which the consent was given. However, mirror orders are not without their difficulties, including differences between foreign laws in relation to recognition and enforcement, so careful and considered advice is needed from a specialist lawyer, both in the country being left and the country to which the party is relocating to avoid the pitfalls.

The position after Brexit and whether the UK’s departure from the EU will result in any changes to the law in this area is not clear at present, so advice will need to be sought to ensure the maximum protection is put in place to cover a variety of different scenarios. The legal uncertainty over the UK’s future relationship with the EU makes mirror orders even more important than ever.

Given the specialist nature of this area of law it is essential that anyone contemplating an international relocation with their children, or anyone facing such a move, seeks advice from an international family law specialist at an early stage in the process.

Brexit – An International Divorce?

The triggering of article 50 by the UK (whereby Britain will leave the EU) is going to lead to chaos in international divorce cases. At the moment, there is automatic recognition of divorce and custody orders, certainty in terms of jurisdiction and EU wide enforcement of maintenance orders. In the absence of new conventions / international agreements this will no longer be the case, and the government’s Repeal Bill does not in any way address these issues.

I gave evidence to the House of Commons setting out issues that those dealing with an international divorce will face http://parliamentlive.tv/event/index/23aa4308-29e8-4878-aae6-3f3e9a8c70cc?in=10:31:35 and many of those views were endorsed in the subsequent House of Commons justice report https://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/750/75002.htm

There may be some improvements to the current system, for example, the removal of ‘race to issue’ may lead to more reconciliations and/or the greater use of out of court dispute resolution, such as mediation. However, this will be at the cost of certainty as instead there will be the possibility of divorce proceedings in more than one EU state, with neither taking priority. This may of course may suit a party who can afford to litigate but it will be hugely detrimental to others.

In the field of asset protection, the lack of certainty may work against the wealthier party. At the moment, it is possible for parties to agree in a marriage contract, prenuptial or postnuptial agreement which EU state will deal with maintenance. In the absence of new international arrangements, this will no longer be possible where the UK and an EU state is involved.

At the moment if there is a divorce in the UK between 2 British expats living outside of the EU, the UK court cannot award maintenance (nor, importantly, which is often overlooked, can it dismiss someone’s maintenance claims). Therefore it is currently a major advantage to the wealthy party if they issue a divorce in the UK, as the weaker financial party cannot claim maintenance. This may no longer apply if the UK leaves the EU. Another issue for expats is that in the past one of the parties had to be domiciled in the UK for a order to be made sharing a UK pension. The introduction of the EU maintenance regulation in June 2011 meant that if there is no other way of splitting the pension then the UK court could do this even if both parties were domiciled outside the UK. Again, this possibility is likely to be lost if the UK leaves the EU.

After Brexit, there is no guarantee that a UK divorce or child custody order will be recognised in the EU, particularly if, in the case of a divorce, there have been competing proceedings elsewhere in the EU. There are also likely to be more financial claims in England after a divorce in an EU state.

Provided the UK signs up in its own right to the Hague Maintenance Convention and its accession is recognised by the EU, it will still be possible to enforce UK maintenance orders on the same basis but EU orders will have to be recognised before they can be enforced.

The main concern though is that there could be a long period where no clear rules are in place which will lead to huge uncertainty for those going through an international divorce. The UK will need to be put in place transitional agreements and there is no guarantee that this will happen in time. The fact that any changes are unlikely to come into effect until April 2019 does not mean that those dealing with cases now can ignore Brexit as even if their case finishes before April 2019 they may still have the issues with recognition highlighted above. It is therefore important to take advice now from an international divorce specialist whether you are contemplating or going through an internaitional divorce.

Brexit – what does this mean for international divorces?

No-one knows for certain what will happen in international divorce cases when the UK leaves the EU – Theresa May has suggested in the last few days that all EU laws will be incorporated into UK domestic legislation but this is unlikely to benefit UK citizens in international divorce cases unless there are reciprocal rights, so this will need further thought.

There are a number of EU regulations and international conventions‎ which may no longer apply to divorce cases in England (and Wales) and which may have to be re-negotiated over time, leaving a very uncertain situation in the meantime. However, anyone currently involved in (or contemplating) an international divorce case cannot ignore the difficulties this may cause them in the future.

A number of issues / considerations apply:

– at the moment, a divorce obtained in an EU state (other than Denmark) is currently recognised throughout the EU. If the current EU regulation ceases to apply to the UK, recognition of an English (Welsh) divorce will be a question of national law. If you are a foreign national currently divorcing in England, it would be prudent to check whether an English divorce will still be recognised in your state of origin if England is no longer a member of the EU;

– if it is likely that you will obtain an English maintenance (periodical payments) order against your partner or former partner for you or your children and the payer is living in another country within the EU, will this still be enforceable?

– sim‎ilarly if there is an order that a property located in mainland Europe is transferred to you for the purpose of providing you with a home, will that be enforced in another EU state once the UK leaves the EU? In this and the above example, can you obtain a mirror order (i.e. an order in the other country in the same terms as the original order) in the country of enforcement (i.e. the country where the property or person paying maintenance is living)? If not, obtaining a more favourable financial award in England may be a futile exercise. It is certainly imperative that your case is dealt with in England as quickly as possible while the current rules apply;

– British expats or foreign nationals living in the EU may also have difficulties in enforcing foreign maintenance or property orders in England once England is no longer a member of the EU;

– if you agree to your child(ren) moving to or from England as part of a divorce or separation and obtain an order for contact (access), will this be recognised? Again, a mirror order should be considered;

– for those negotiating a prenuptial agreement in England involving one or more EU nationals, consideration needs to be given to jurisdiction clauses. Currently, a clause providing that a divorce be dealt with exclusively in one EU state would not be effective. Going forward, these clauses should be considered as they may assist in ensuring that a divorce is dealt with in one particular EU state. On the other hand, it is possible at the moment to agree in advance which EU state may deal with maintenance and that a particular law (other than English law) will apply to maintenance. This may not be effective in the future.

‎Therefore, even though no-one can tell you yet what will happen when the UK leaves the EU, it is important that you take advice now from an international divorce specialist if you are currently involved with (or contemplating) an international divorce.

Expat Divorce

A recent case involving a British Expat and an Ethiopian national has underlined the risks of dealing with an international case without having expert support.

The British husband who was based in Indonesia issued divorce proceedings in England on the basis of his sole domicile, (presumably) believing that this would be straightforward and not expose him to a maintenance claim by his Ethiopian wife.

Ordinarily, it is not possible to claim maintenance in England where jurisdiction for the divorce is based solely on the domicile of one party. However, due to a number of procedural errors by the husband (his legal team), he was deemed to have consented to the English Court having jurisdiction to deal with maintenance and, therefore, exposed himself to some of the most generous maintenance provisions in the world. This was particularly unfortunate when “maintenance” can include capital payments, pension sharing and property orders to meet needs, including for housing and retirement.

This is clearly a case where the husband would have been better off dealing with matters in Indonesia and highlight the perils of not taking advice from an international divorce specialist.