Our international family lawyers regularly advise on cases involving complex international aspects
International DivorceOutcomes vary geographically It is crucial to obtain timely advice on international family law issues
Divorce often involves complex international issues. For example, if one or both parties is a foreign national or is living in another country, there may be options in terms of the country in which the divorce or separation process is started. It is crucial to get advice on international family law issues as soon as possible not least because the outcomes in different countries can vary significantly.
We regularly advise on complex issues arising from international divorce including:
- Pre and post-nuptial agreements and cohabitation agreements
- Jurisdiction disputes including advice on the most appropriate jurisdiction for divorce
- Recognition of foreign marriages and divorces
- Recognition of foreign/domestic civil partnerships and same-sex marriages
- Financial provision following a foreign divorce
- Enforcement of court orders abroad and foreign court orders in England & Wales
- International relocation of children
- Surrogacy, assisted reproduction and international adoption
- Offshore corporate and trust arrangements
Our lawyers draw on their specialist knowledge, language skills and worldwide contacts to advise a range of clients including:
- UK nationals living or working abroad
- Foreign nationals living or working in England & Wales or contemplating moving to England & Wales
- Foreign nationals living abroad who want to divorce in England & Wales
- Parents who want to relocate abroad or who want to create or enforce arrangements affecting their children
- Parents seeking parental orders to deal with surrogacy or assisted reproduction
- Foreign trustees, settlors, beneficiaries and family offices
- Same sex couples seeking advice on their foreign marriage or civil partnership
- Foreign lawyers
We work closely with other family law specialists around the world to provide a truly international service and are members of numerous international family law associations including the International Academy of Family Lawyers and the American Bar Association, International Section.
The international family law issues that our clients face vary tremendously. We have provided guidance on some the issues that we come across to give you a flavour of our work:
A. Can foreign nationals living abroad divorce in England & Wales?
- Can I divorce in England even if I’m not from here? Yes. One of you requires a link to the jurisdiction through habitual residence or domicile. If you hold assets in this jurisdiction, it can be advantageous to divorce in England too.
- Do I have to divorce in the jurisdiction I got married in? No. Where you live today, or where you hold your assets today, is relevant. The location of the marriage ceremony is not relevant.
- What are the advantages of divorcing in England? The English Courts, particularly in London, are very experienced at dealing with cases with international aspects. Clients who live in very small jurisdictions may also feel that the larger London courts provide a greater degree of anonymity than their own jurisdiction where the client may already know the lawyers, judges, and those involved with their businesses. They may use the English courts because they want to keep their divorce private.
Jurisdiction for divorce in England & Wales (and indeed throughout the UK) is presently based on a European convention, Brussels II. This may change following the UK leaving the European Union but we do not yet know what will replace it. Brussels II provides that an EU state will have jurisdiction if:
- Both spouses are habitually resident;
- Both spouses were last habitually resident and one remains;
- The respondent is habitually resident;
- The petitioner has been habitually resident for at least 12 months (or 6 months if returning to a home jurisdiction); or
- Both spouses are (in the case of UK & Ireland) domiciled here.
Once a valid divorce petition has been issued in one EU state, another EU state cannot entertain proceedings – this is the first in time rule. If none of the above criteria are met and no other EU state has jurisdiction under these criteria, proceedings may be started in England & Wales if one of the couple is domiciled here. The first in time rule does not apply if no EU state has jurisdiction and instead any jurisdiction dispute will be determined on the balance of convenience. The EU states covered by Brussels II as at May 2017 are found here.
- I am a foreign lawyer acting for a foreign national who is divorcing. Would my client be better off issuing proceedings in England rather than my country? This very much depends. There are various claims that may be available for both capital and income (spousal maintenance and/or child maintenance). The English court has a large discretion when making orders for financial remedy upon divorce and each case will turn on its facts. This said, England & Wales has a reputation for being a favourable jurisdiction for the financially weaker spouse as it does not discriminate between financial and non-financial contributions. It can also make long term spousal maintenance orders which may be less common in other jurisdictions.B. International relocation of children:
- I want to move abroad with my children/my job is taking me abroad. Do I need the consent of the other parent? If the other parent has Parental Responsibility for your children then yes, you will need their consent – or the permission of the court. The mother always has Parental Responsibility for her children. Broadly speaking, the father will also have Parental Responsibility if the parents were married when the children were born or if the father is named on the birth certificate (providing the child was born after 1 December 2003).
- If the other parent does not agree to my moving abroad with children, how long will it take to get the court’s permission? The process can take quite a long time (because of the relatively slow speeds that the courts operate at) – usually a minimum of six months, and sometimes quite a bit longer. However, the process can occasionally be completed more quickly if it is an emergency.
- Can I take my children in the interim, while I get the formal consent or court permission? No, you cannot take the children abroad without the consent of the other parent or the permission of the court, even if you have applied to the court for permission or are intending to. Doing so could severely undermine your chances of succeeding in a formal application to court for permission. Further, just taking the children could constitute child abduction.
- How much notice do I need to give? There is no minimum notice period required but, as explained above, if consent is not forthcoming and a court application is necessary, the process usually takes quite a long time.
- What do I need to show to get the court’s permission? These types of application are not straightforward – the ramifications for the children are significant. The intended move needs to be thoroughly and carefully prepared. It is much better to have considered planned a lot before you actually apply to the court. Broadly, you will need to show that the intended relocation is well thought through and is in the child’s best interests. You will need to be able to demonstrate a properly thought-through plan for how the children will maintain a meaningful relationship with the parent being left behind, to include spending time with them.
- How do we manage school holidays? I still want a holiday with the children and don’t want all of their holiday time to be taken up with them visiting their other parent. This is the sort of thing that would need to be considered and addressed as part of the process of obtaining the court’s permission to relocate. The court is likely to want to ensure that the children get to spend material holiday time with their other parent. However, you too should be entitled to take holidays with the children.
- How much will it cost? It is difficult to say how much it might cost to secure permission to relocate abroad with the children – each case is different. If your plans are well thought through and meet the needs of the children (to including spending time with the other parent), the other parent’s consent might be secured more easily than you may think. If the consent is not forthcoming and a formal court application is required, costs can be quite significant – so it essential that matters are prepared and planned well and efficiently.
C. International surrogacy & adoption:
- My partner and I are both UK citizens living in London. We are thinking of using a surrogate mother based abroad. Can we do this? Yes you can but complex rules apply if the baby is born outside the UK. You need to carefully select the country in which the surrogacy is to take place and fully understand the legal implications of your choice of jurisdiction. Some countries (eg. certain US states and the Ukraine) recognise commercial surrogacy (where a fee is paid to the surrogate mother). Some countries recognise surrogacy but not commercial surrogacy (eg. the UK and Australia). Some countries, like Portugal and Italy, don’t recognise surrogacy at all. The status of surrogacy within your chosen country will have a significant impact on the legal challenges that you may face.
- If our baby is born abroad to a surrogate mother, what legal implications might this have for our baby? You will need to consider both the family law and the immigration law issues. Does the baby automatically become a citizen of the country in which it is born (as is the case in the US)? Will the baby need a visa to allow it to come back with you to the UK? In some cases the baby is effectively stateless if it cannot take on the citizenship of the country in which it is born and if its parents are citizens of a country which does not recognise surrogacy.
- Do we automatically become the legal parents of the baby once it is born? Not necessarily. In some countries the intended parents become the legal parents as soon as the baby is born. Legal orders may be made in that country in favour of the intended parents straightaway. These orders are unlikely to be valid in the UK. Therefore, it is important that you make an application to become the legal parents of the child under UK law too by applying for a parental order or adoption under UK law (see below). There is a time limit of six months from the date of the baby’s birth after which the UK court will not generally issue a parental order. Thereafter the only option would be to adopt the child. While waiting for the parental order to be processed, the child will require a visa in order to enter the UK.
- What happens if our marriage breaks down and we don’t have a parental order and we haven’t adopted the baby under UK law? First and foremost you should ensure that the surrogate mother has waived her rights to the baby. If one or both of you are the child’s biological parent, you can apply for a parental order within six months of the baby’s birth. This will give you both equal rights in relation to the baby. If more than six months have elapsed since the birth of the baby, or if neither of you have a biological connection to the child, save in exceptional circumstances, you will need to apply to adopt the baby. This will require the involvement of a registered adoption agency. There may also be significant immigration issues for the baby.
- What is a parental order? Under UK law, a parental order transfers the rights and obligations of parentage to the intended parents, providing certain conditions are met. Applications for a parental order must generally be made to the court within six months of the birth of the child. To obtain a parental order, at least one of the couple making the application must be genetically related to the baby i.e. be the egg or sperm provider. Couples must be husband and wife, civil partners or two persons who are living as partners. A parental order reassigns parenthood, extinguishing the parental status of the surrogate parents, and confers full parental status and parental responsibility on both intended parents. If the child is born abroad, the intended parents can apply for a parental order only if they are living (or domiciled) in the UK.
- Why would I use adoption rather than a parental order? If you cannot apply for a parental order because neither of you are genetically related to the child (donor egg and donor sperm or donor embryos were used) or if more than six months have elapsed since the birth of the child, then (save in exceptional circumstances) adoption of the child is the only available option. This means that a registered adoption agency must be involved in the surrogacy process.
D. Recognition of foreign same sex relationships:
- I registered a civil/domestic partnership in another country. Is that recognised in the UK? Almost certainly your registered partnership will be recognised throughout the UK as a Civil Partnership. The Civil Partnership Act 2004 (which applies throughout the UK) recognises ‘overseas relationships’ which are either set out in a schedule to the Act or which meet general criteria which would be met by the vast majority of overseas partnerships.
- Is same-sex marriage now possible in the UK? In England & Wales marriage between same-sex couples is now possible under the Marriage (Same Sex Couples) Act 2013. It is also possible for a same-sex couple to marry in Scotland under the Marriage and Civil Partnership (Scotland) Act 2014. Same-sex marriage is not available in Northern Ireland.
- I married my same-sex partner in another country. Will that marriage be recognised in the UK? In England & Wales a foreign same-sex marriages will be recognised provided that the marriage has been properly performed in the country it took place and the couple had capacity to marry each other under their personal law. This can be quite complex but most foreign same-sex marriages will be recognised. Scotland makes similar provisions. In Northern Ireland foreign same-sex marriages will be recognised as Civil Partnerships.
- Can I convert my Civil/Domestic Partnership into marriage? The Marriage (Same Sex Couples) Act 2013 allows for conversion of Civil Partnerships registered in England & Wales into marriage. The Marriage and Civil Partnership (Scotland) Act 2014 makes similar provisions for Scottish Civil Partnerships. However, foreign domestic civil partnerships cannot be converted to marriage. It would be necessary to dissolve the foreign domestic civil partnership and then marry in England & Wales or Scotland.
E. Recognition of foreign pre-marriage contracts:
- My client is entering into a prenuptial agreement in my country. Will the agreement be binding in England & Wales too? Will a reciprocal agreement be necessary? Provided certain criteria have been met in the drafting and circumstances surrounding the entering into of such an agreement, then it is likely that the English court will implement, or at least be highly influenced by, a pre-nuptial or post-nuptial agreement. However this is not definitive as the court retains a wide discretion to make an order on other terms. It is therefore imperative that, if the parties plan on moving to England for a period of time or if divorce proceedings could be issued in England, your client speaks to a lawyer at Family Law in Partnership about pre-nuptial agreements in England and your client may want to consider a mirror English agreement.
- Is my client’s marital property regime recognised in England? The short answer is to assume no, although the English courts may be highly influenced by a foreign marital property regime.
F. Treatment of offshore trusts & corporate entities:
- As a non – UK trustee of a settlement in which a beneficiary is embroiled in English divorce/dissolution proceedings, do I need English family law advice? Does it make any difference if the trust was settled during the marriage? Yes, it is highly advisable. You may have trust assets located in this jurisdiction which will be under attack by the spouse or civil partner. It is crucial that the English court has the correct advice about the trust assets and liabilities so does not make orders based on faulty information that you can then do little about later. Additionally, it is likely that you already have advice from lawyers in your own jurisdiction, including with regards to requests by the English court for disclosure of trust accounts and information. Consideration must also be given to the issue of potential joinder of the trustees as parties to the proceedings. Where a trust was created during a marriage, and benefits either or both of the spouses, in their character as a spouse to this marriage, with or without benefit for any child or children, then such settlement may be regarded by the English court as a nuptial one, and can be directly varied by the court on divorce, primarily to provide benefit to the other spouse. This is subject to considerations of the type of asset/interest within the trust, where it is located, tax, and the enforceability of the English order against the foreign trust. By contrast, the trust might not be a “nuptial settlement”, but given the track record of loans and distributions made by the trustees, it might be regarded as a resource available to the beneficiary on divorce, from which he/she can pay the other spouse. This is known as judicious encouragement by the court.
- I want to undertake some wealth planning and settle part of my wealth into trusts for each of my children. I am worried that if they get married and then divorced, the trusts might be emptied out by one of their spouses. How do I avoid this? As the settlor, you are able to determine the terms of the trusts and the group of beneficiaries. You must give consideration as to whether your grandchildren and spouses are included in the class of beneficiaries. Further, whether you require each child to enter into a prenuptial contract with their fiancé/ee or civil partner to set rules in respect of the trust interests – such as to say such interests are “off limits” on divorce, subject to meeting the other spouse’s needs on divorce.
- I am an adviser within a Family Office and we are restructuring various settlements and investments for fiscal planning. Should the planning also be run past a divorce lawyer? Yes, saving tax for a family is often at odds with the optimal structuring in the event of a divorce – for example maximising a spouse’s tax allowances by placing wealth in the other spouse or civil partner’s name, and then seeking to take back those assets/income on a divorce/dissolution. A balance has to be struck, and given that a divorce court is bound to consider the “yardstick of equality” when dividing the family wealth, even if a 50:50 split is not the ultimate order made, it demonstrates that a spouse as a creditor is just as relevant as the tax man.
Our reported cases include:
- Divall v Divall – a complex case concerning a jurisdiction dispute.
- Solovyev v Solovyeva – a case concerning the recognition of overseas divorces by the English courts.
- B v S (Financial Remedy: Marital Property Regime) – a case concerning the effect of a separate property regime and a post-nuptial agreement.
- Golubovich v Golubovich – a case regarding the recognition of foreign divorce decrees by the English Courts.
- Re X and Y (Leave to remove from jurisdiction: no order principle) – a case concerning the relocation of children abroad against the wishes of the other parent.
- Al Habtoor v Fotheringham – a case concerning the issue of habitual residence of a child and the recognition by the English court of foreign court orders.
Our recent blogs on international family law matters include:
Offshore trusts: Piercing the matrimonial veil (from our colleagues at Carey Olsen, Jersey)
How (and why) to bring up a prenup (from our colleagues at Moses & Singer, New York)
What to do in Paris with young children – advice for non- resident parents (from our colleagues at CBBC Avocats, Paris)