Here we discuss some common questions concerning divorce and financial separation where there is an overseas element to the proceedings.
Q: Can my spouse’s overseas assets be considered as part of a financial settlement?
A: Yes. Anything capable of being valued can be considered as part of a couple’s financial position.
Q: What if my financial order applies to overseas assets, but my spouse will not comply?
A: The UK has several agreements in place which mean that Court Orders from England or Wales are capable of being enforced overseas. There are conventions in place to allow just this, including countries that are or have been British territories, and countries which have signed and ratified the Hague Convention.
Difficulties can arise when another country’s legal structure is very different to that of England & Wales. For example, enforcing an English Court order in the USA could be more onerous due to the system of federal / state laws.
Q: What if we got married outside the UK?
A: Don’t worry! In the vast majority of cases, you can initiate divorce proceedings in the UK, even if you married abroad. You will need a certified translation of your wedding certificate (if it is not in English), certainty that your marriage was valid in the country in which it took place and the right to reside in the UK.
Q: What if my spouse lives overseas?
A: s5 of the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) provides several scenarios in which a person who is domiciled or habitually resident in England or Wales could divorce their spouse living overseas.
Q: But what if I don’t know how to contact them?
A: This scenario makes things difficult, but not impossible. It is very unlikely that a Court will grant a divorce if they aren’t convinced you’ve done everything you can to find them, which potentially means a lot of research. Documenting conversations with family and friends and even instructing investigators could help your case. In recent years, service of proceedings via email or even social media, has been successfully applied for and at an extra cost, you can eventually apply for the Court to dispense with service of an application.
Q: My ex won’t let me take the children abroad on holiday. What are my rights?
A: Unless you have a Child Arrangements Order / Residence Order stating that a child lives with you, taking a child abroad without the consent of a person with parental responsibility is child abduction. Parental responsibility is given to mothers automatically, and fathers if they are on the birth certificate or married to the child’s mother at birth. It can also be applied for at Court. If you do not have one of these Orders, you can apply to Court to request that they allow you to take the children abroad. They will consider whether it is in the children’s interest to have a holiday abroad and whether it is likely that they will be allowed to return.
Q: Help! After the divorce, my spouse wants to take our children to live overseas. Can I stop them?
A: Again, the consent of those with parental responsibility or a Court Order is required. If you do not consent, your ex may apply to Court for permission to relocate. If there are sound plans in place, and it would not be detrimental to a child’s well being, financial stability, health or education, then it is unlikely the Court would refuse this application. Thankfully, clauses can be included in the Order to ensure that good contact with their family in England or Wales continues.
Please call our Litigation department on 0114 272 9721 if you are affected by any of the queries raised here.