International Surrogacy

The highly sensitive and topical issue of international surrogacy has become headline news again following the stark warning of a top High Court Judge. At a recent meeting of international family lawyers in London, Dame Lucy Theis warned that the failure of parents to apply for the appropriate court orders in relation to children born through surrogacy arrangements is causing ‘a ticking legal timebomb’. The number of parents commissioning a child through commercial surrogacy arrangements, usually overseas, is increasing year on year, so the potential risks are becoming of even greater concern.

There are various risks to parents who fail to apply to the Court for a ‘parental order’ to regulate their legal status as parents to the child or children born to a surrogate mother. If the commissioning parents do not have the benefit of a parental order, they have no legal status in the eyes of the English court. The birth mother (and her husband if she is married) are the legal parents, regardless of the terms of the surrogacy arrangement. A parental order extinguishes the surrogate mother’s status as a parent and transfers it to the commissioning parents.
If the appropriate legal application is not made, there can be huge difficulties in relation to immigration and nationality and children could be left ‘stateless’. Equally, there are problems in relation to inheritance and what will happen to the child if the commissioning parents were to separate or otherwise need the assistance of the court in determining the arrangements for the child.

It is estimated that there are over 2,000 babies born to surrogate mothers and commissioned by parents living in the UK. However, only 241 applications were made to the court for parental orders last year (figure from Cafcass). That means a huge number of parent-child relationships are at risk of the sort of difficulties mentioned above. To date, every application for a parental order has been granted, although there are strict requirements which need to be adhered to which is why specialist legal advice needs to be obtained.

This area of law undoubtedly needs to be reformed to reduce the risks to the child of the sort of difficulty mentioned above, particularly give the increasing numbers of babies born through a surrogacy arrangement. The have been repeated calls to modernise both English law and to introduce some form of international instrument to provide minimum standards to protect the children involved. The public health minister, Jane Ellison, has confirmed that she will consider requests to change the law, so it is hoped that with the new government some progress in this regard will be made. However, any reform is likely to be some years in the future. Until that time, it is crucial that those considering having children through a surrogate arrangement do their research and seek advice from an international specialist to assist them in navigating their way through a potential legal minefield.

Divorce in Italy now possible in 6 months

Italy’s House of Representatives has given final approval to its “fast-track divorce law”, cutting the time it takes to get divorced in the country from three years to just six months in an uncontested case (or to one year if the divorce is defended). The change in the law, amending Article 3 of the Divorce Law, has had overwhelming support and has been widely seen as a loosening of the influence of the Catholic Church.

The new law states that a divorce can be requested 6 or 12 months from the date of the first hearing for separation. If the separation is informal and not registered, these time periods will not start to run. If there is any reconciliation or other interruption during the separation period, the time accrued up to the day of the interruption does not count and the parties must restart the period of separation.

Divorce first became legal in Italy in 1970, at which time there was a mandatory separation period of 5 years. This period intended to make couples carefully consider their decision before a divorce could be granted. In 1987, this period was reduced to 3 years.

The country operates a “no fault” system of divorce but imposes a period during which couples consider reconciliation. This period has forced many couples in the past, unwilling to wait, to set up false residencies in other EU countries offering quicker divorces and then divorcing there. The parties then had the divorce recognised in Italy via EU regulations. The change in the law, which will apply to ongoing cases as well as new ones, will make divorce in Italy easier, faster and prevent couples from looking elsewhere for a quicker divorce.

The amendment to the law also altered the point at which spouses’ common property ownership ends. It now ceases when spouses are allowed to live apart by the court, rather than when the separation order becomes final.

It should be noted that Italian law already provides for immediate divorce, on grounds such as incestuous relationships, total incapacity of a spouse, change of sex, non-consummation, life imprisonment or aggravated assault but these grounds are seldom used.

If you are considering divorcing either in England or abroad, it is important to take advice from an international divorce specialist who can advise you of where best to bring proceedings, both in relation to a divorce and any connected financial claims. If you think your spouse is considering starting proceedings, it is vital that you take this advice as a matter of urgency in order that your divorce is dealt with in the most appropriate forum and to protect your position.

Expat Divorce and English pensions

The English Court will not automatically enforce orders made by foreign courts on divorce in relation to English pensions. It is, therefore, important to take advice from an international family law expert before a final order is made in a foreign jurisdiction.

Ordinarily, the English Court can only make an order in respect of English pensions if, after a foreign divorce, one of the parties is either habitually resident or domiciled in England and Wales at the time of the English application. Domicile is not the same as nationality, and someone may have retained the latter but not the former. This is particularly important where only one of the parties has a UK connection and they are the party with the English pension as that party could argue they are not domiciled in England to prevent enforcement.

If the order in respect of the English pension is made somewhere else in the British Isles on divorce (for example, Scotland, Jersey, Guernsey or Isle of Man) that order cannot be enforced in England.

If you are a beneficiary of a foreign order in relation to English pensions, you should not remarry before enforcing the order in England as you cannot apply to the English Court if you have re-married.

Other practicalities:

  • Think about the tax implications of receiving an English pension if you are non UK resident.
  • The pension company may require an English address before you transfer your pension to them or they accept you as a member of their scheme. There are potential ways around this, including transferring the pension to a non UK pension, but these issues should be explored before seeking a final order in a foreign jurisdiction.
  • What are the costs of the Pension Sharing Order?
  • When can you take the pension? Different scheme rules mean this could vary between 50 and 65.
  • A 50% share of the pension fund does not necessarily equate to a 50% share of the income.

If it is not possible or practical to receive a share of your ex-spouse’s pension, then consideration should be given to obtaining an alternative order in the foreign jurisdiction. All of this is easy to do if it is addressed before a final order is made; otherwise, in some cases, you may be left with no remedy at all.

International Surrogacy

The previous posts on the issue of international surrogacy http://www.internationaldivorcespecialist.com/?p=436   http://www.internationaldivorcespecialist.com/?p=361 have highlighted the complexities of this subject and the potential pitfalls of which prospective parents need to be aware before entering into a commercial surrogacy agreement overseas. In an attempt to provide guidance and assistance to British Nationals, the foreign and commonwealth office has published a formal information leaflet, which is essential reading to anyone considering entering into an overseas surrogacy arrangement.

The guidance is available on the foreign and commonwealth office website, and highlights the potential problems prospective parents face when bringing their new child (or children) back home, and the formalities which need to be complied with once they have returned to legalise the arrangement in the eyes of the English Court. The guidance stresses the need for any British National considering an overseas surrogacy agreement to seek independent legal advice from an international family law specialist.

The official guidance also emphasises the fact that commercial surrogacy is only legal in a small number of foreign countries, and those considering such an arrangement need to familiarise themselves with those countries and their relevant laws and conditions. This last fact was highlighted by the changes to the law on surrogacy in Thailand in 2014 which made international headlines. In February 2014, Thailand passed a law outlawing commercial surrogacy for foreigners altogether.   This highlights the vital importance of proper and careful research by prospective parents before entering into international surrogacy arrangements.

In England and Wales, 2014 also saw an extremely important decision in the area of domestic surrogacy law. As noted in previous posts http://www.internationaldivorcespecialist.com/?p=436   http://www.internationaldivorcespecialist.com/?p=361, in this country the parents of a child born to a surrogate need to regularise their legal relationship with the child, through an application for a parental order. The case known as Re X involved an application for a parental order outside the strict time limit of 6 months of the child’s birth. Whilst this ‘six month rule’ has been regarded as an essential prerequisite to any application, the court did make the parental order despite the application being made out of time. In the circumstances of that case it was found that the consequences for the child and the parents of not making the order would be extremely serious, and not in the child’s best interests.   A further case has followed this reasoning, and again a parental order was made after the six month time limit.

Despite these recent cases, parents cannot expect to ignore the six month rule, as every case will involve a different set of facts, and the court’s decision will need to be informed by the particular circumstances of each child. There are important public policy reasons for the ‘six month rule’ and it does remain the law, but these cases must give some hope to parents who have ‘missed’ making an application within six months of the child’s birth.

Whilst changes to the law on commercial surrogacy to bring it more in line with the modern world are welcome, prospective or existing parents need to remain wary of the continuing complexities of this area of law and seek specialist legal advice at an early stage.

Property rights and international divorce

The recent Anglo-French case of Y v Y highlights the importance of seeking legal advice before moving countries – particularly from a country where a marriage contract is determinative. The English Court continues to grapple with the extent to which such marriage contracts should be binding on it. Whilst it seems clear that the Court will not limit someone’s needs (for example for maintenance or a home) as a result of an agreement, there are also contrasting decisions about whether an agreement about rights to property is binding.

Each case is fact specific and it cannot be assumed that because 1) a marriage contract is between two nationals of the same country and 2) the agreement was made in their home country, it is therefore binding on the English Court.

Where possible, it is important to consider entering into a further English law agreement before moving here which (a) confirms the party’s property rights and (b) fixes jurisdiction and the applicable law for maintenance (needs) with the country of their nationality. It is important to seek advice from an international divorce specialist on such an agreement. Alternatively, seek urgent advice as to whether any divorce can be dealt with outside of England.