We live in an increasingly international world. As a result, as lawyers we regularly face questions relating to family life which have an international aspect.
Before the Court can be engaged to resolve any family issue, it is essential to establish that the Court has jurisdiction to deal with it. The basis of that jurisdiction can differ according to the nature of the issue to be determined, and can be a complex and confusing area of law.
Unlike may other jurisdictions, the Courts of England and Wales do not recognise nationality as a ground for jurisdiction. Rather we have developed the concept of domicile. This is often described as the status of having an enduring connection with a particular area or State. Everybody has a domicile, even if a refugee. A persons domicile is often the country of ones birth, or else where they are permanently resident. A person can remain domiciled in a State even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently.
Legal domicile should not be confused with the concept of domicile for tax purposes, to which different rules apply.
When asked by a family lawyer if you are domiciled in England and Wales (even if you do not live here), you might be asked to consider: whether you consider this country to be your home; what links – family, financial, social, cultural – you maintain here; whether you intend to return one day (no matter how long distant); whether you expect to spend your final days here. You might be asked if this is the country where you expect to be buried. A positive answer to any or all of these questions might indicate an English / Welsh domicile.
Another common test of jurisdiction is habitual residence. Habitual residence can usually be ascertained pretty easily. Most people will be habitually resident in the country where they ordinarily live, work, vote and so on.
You can be habitually resident in a country without being domiciled there, and without being a national of that country. It is also possible to be habitually resident in more than one country at the same time.
A persons habitual residence can change easily and quickly.
In order to issue divorce / dissolution proceedings, it is necessary to first be satisfied the English court has jurisdiction because of your domicile and / or habitual residence.
Habitual residence is the usual basis for deciding which countrys courts or agencies ought to take responsibility for making decisions affecting children.
When dealing with an application for a financial remedy, the English Family Court can make a number of orders the effects of which will be felt internationally. For example, the Court can order how assets that are held offshore are to be shared. It can restrict the ability of a party to deal with or use foreign assets so that they are not dissipated before a final Order is made. The English Court cannot, however, make a pension sharing order in relation to a foreign pension.
Sometimes, it is possible for a person who has been through divorce / dissolution proceedings overseas to make an application in England for financial provision. This may be possible even if the foreign court has already made its own financial order. To make such an application, it is necessary to have a connection to England and Wales through habitual residence, domicile or because the family home is here. It is necessary to get the English Courts permission to bring such an application. If that permission is given, the English Court is able to make any from the menu of orders available to it in financial remedy applications. Applications of this type are primarily a way to ensure a just outcome and to avoid hardship, such as if the financial provision by the foreign court is considered to be inadequate.
As a general rule, if a marriage has been conducted in accordance with the law of the land where it was celebrated, then it will be recognised in the UK as a valid marriage, capable of being dissolved here.
It is very common in some other countries – and sometimes here amongst certain faith groups – for parties to undergo a religious ceremony that does not actually result in a legally recognised marriage. It is only a subsequent act, such as registration of the religious marriage with the secular authorities, which gives rise to the legal relationship. If only the religious element of the process has taken place, then the marriage may not be legally valid. Similarly, some countries require a period of residence therefore before a marriage can be validly contracted there.
The same is true of civil partnerships, although the CPA has particular rules on whether and when a foreign civil partnerships will be recognised.
Likewise, as a general rule if a decree of divorce / dissolution has been obtained legitimately and in accordance with local law from a foreign court or authority, it is likely to be recognised here.
Expert and early advice is essential for those:
In 2010, the Ministry of Justice estimated that 65% of children born in London had at least one foreign parent. With the majority of families having international ties, it is increasingly common on relationship breakdown for a parent to wish to return to their country of origin. Similarly, a separated parent might seek to leave the UK to make a fresh start abroad, either with a new partner or in pursuit of a career.
These situations almost always result in a dispute about residence and contact: agreements reached about residence where everybody lives in England might be unworkable with a transnational overlay.
Relocation cases are always fraught. Parents might be able to compromise on whether contact should be for two or three days a fortnight by splitting the difference. This is impossible where the decision is a binary one: should the children live in England or (for example) New Zealand. There is little room for compromise.
This is an area of law where early legal advice and preparation really can swing the outcome. This holds true whether representing the parent wishing to go, or the parent seeking to prevent the children emigrating.
Another area where we are often asked to advise is regarding what a parent can do to have an existing residence or contact order respected in another country. Without some legal apparatus in place to deal with these situations, families would be faced with the prospect of litigation over residence / contact following any international relocation.
There are systems in place concerned with cross-border recognition and enforcement questions. However, the approach is not a unified one. Because of political, historical, geographical and / or social contexts, England participates in an assortment of arrangements relevant to this issue, each with particular rules and conventions.
We are able to advise how these arrangements work practically. We are able to identify cross-border cases early, and work to ensure that the advice given and the approach taken is the most effective and efficient for our clients.
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