Am I Entitled to Spousal Maintenance?
My partner and I can't agree whether I'm entitled to spousal maintenance. What can I do?
If you can't reach an agreement over the amount of spousal maintenance then you can make an application to Court. The Court doesn’t have a set formula to say how much, if any, spousal maintenance should be paid. The Court has a lot of discretion to make what orders it thinks appropriate.
The Court can also order lump sum payments and property transfer orders. These are separate but linked to spousal maintenance orders. This means that the less capital that a husband or wife receives then the greater the probability that they may need spousal maintenance in order to meet their income needs.
Reaching a financial settlement is a bit like putting a jigsaw together as it is important that the capital, pension and income settlements meet needs.
If I am entitled to spousal maintenance how long will the spousal maintenance last for?
The Court can order different types of spousal maintenance or no spousal maintenance.
Joint lives maintenance is often called the ‘’meal ticket for life’’ spousal maintenance in the media. Why? It is because the spousal maintenance continues throughout the joint lives of the payer and the payee until further order of the Court or until the payee remarries. A husband or wife can apply back to the Court to change the amount of maintenance payable upwards or downwards if there is a change in circumstances. It is also possible for the payer to apply to the Court to stop the spousal maintenance payments if there is a change in circumstances.
Term spousal maintenance continues for a set number of years. The level of spousal maintenance can be changed before the term expires (but not afterwards). The term or length of time that spousal maintenance is paid for can be extended by the Court although there must be a good reason to do so and the application must be made before the term maintenance order expires.
Term spousal maintenance with a bar is exactly the same as a term spousal maintenance order save that the length of time that the maintenance is paid for cannot be extended.
Clean break order is when no spousal maintenance is payable. If the Court makes a spousal maintenance clean break order then a husband and wife can’t make a maintenance application, even if there is a change in their personal financial circumstances at a later date.
I am worried about if I am entitled to spousal maintenance. What should I do?
The best thing to do is to get some early legal advice. Why? If you are entitled to spousal maintenance then an urgent Court application for what is known as ‘’maintence pending suit’’ may be necessary. Even if your situation isn’t urgent it pays to get legal advice so that you understand what steps need to be taken to ensure that you are either able to negotiate spousal maintenance; get a Court spousal maintenance order; or apply to change the amount or extend the time that spousal maintenance is payable for. In some situations that involves looking at your ex-spouses income and financial circumstances and in others looking at your outgoings, career prospects and family circumstances.
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If you have been reading the news about the end of the "meal ticket for life" divorce case of Mr and Mrs Mills and you are either getting divorced or are a divorcee you may be concerned about the question ‘’am I entitled to spousal maintenance?”. It wouldn't be unreasonable to assume from some of the press coverage of Mr and Mrs Mill’s financial Court proceedings that spousal maintenance is an old fashioned concept and that after their divorce spouses will, in future, have to stand on their own two feet and be financially independent of one another.
A careful read of the Court decision in Mr and Mrs Mill’s case reveals that the question "am I entitled to spousal maintenance" is still a very valid question.
How does the Mills decision affect the question ‘’am I entitled to spousal maintenance?’’
Why has Mr and Mills case hit the headlines? In the Mills case the dispute was over whether Mr Mills should pay his ex-wife increased monthly spousal maintenance payments. When the couple split up the Court ordered Mr Mills to pay spousal maintenance to Mrs Mills. In addition the Court gave Mrs Mills enough capital to buy a house. Fast forward nearly a decade and Mr Mills wanted to reduce the spousal maintenance payments and Mrs Mills wanted the spousal maintenance payments to increase as she’d made unwise financial investments and was in debt and renting a house. She therefore argued that as she had increased outgoings she needed more spousal maintenance to meet her basic needs.
The Supreme Court has ruled that the original level of spousal maintenance payments must continue but that they won't be increased. So, those who say that the Mills case stops the ‘’meal ticket for life’’ are wrong. However the Mills case and other recent Court decisions do show an increased concern on the part of the divorce Court to really analyse if spousal maintenance should be paid and if so the amount of the spousal maintenance and how long it should be paid for. This is with a view to both husband and wife in appropriate family situations, being able to achieve financial independence of one another.
One of the strong reasons behind the Court decision not to increase Mrs Mill’s spousal maintenance payments was the fact that at the time of the first financial proceedings Mrs Mills had been given enough cash to buy a house and so if she’d used the money wisely she wouldn't have needed more spousal maintenance to pay her debts and rent. The Court concluded her ex-spouse shouldn’t be penalised by her poor financial decisions a decade after the marriage had broken down.
For help with your entitlement to spousal maintenance or to review an existing spousal maintenance order please contact us.
Robin Charrot
Jul 20, 2018
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6 minute read
Can I Stop Spousal Maintenance for ‘’Life’’?
Spousal maintenance is always a thorny topic, in many cases the person making the payments thinks that they are paying too much and for too long and the person receiving the spousal maintenance thinks that they are getting too little, taking into account child care responsibilities, lifestyle during the marriage or lack of qualifications or career experience over a long marriage.
A husband and wife locked in a Court battle over maintenance payments after their separation in 2012 hit the news after a Court of Appeal ruling. The couple, William Waggott and his former wife, Kim Waggott split up in 2012, after a 21 year marriage. Mr Waggott was ordered to pay his wife a lump sum of nearly 10 million and spousal maintenance for life at the rate of £175,000 a year. The one thing that the husband and wife were agreed on was that the original Court ruling was unfair; the husband thinking that spousal maintenance for life gave Mrs Waggott no financial incentive to get a job and the wife thinking the amount was too low and needed to be adjusted by the date of the Court of Appeal hearing to take into account cost of living increases and Mr Waggott’s income.
The battle lines were drawn with Mr Waggott applying to Court to stop the spousal maintenance for life and Mrs Waggott asking the Court for more maintenance. The Court of Appeal has ruled that Mrs Waggott’s spousal maintenance payments shouldn’t continue for life but instead end in three years’ time. The Court has also said that the amount of maintenance won't increase. As well as losing her spousal maintenance in three years Mrs Waggott also faces substantial legal costs.
Reasoning behind the Court decision
Mrs Waggott argued that her former husband's earnings capacity had been created during their 21 year marriage and that it was only right that she should continue to share the fruit of the marriage as her ex-husband's ongoing income was still a ‘’matrimonial asset’’.
It was also argued, on Mrs Waggott’s behalf, that she should not have to invest some of the near 10 million she had received in 2012 to generate an income for herself, instead of getting ongoing spousal maintenance. It was said that would mean she was using her share of the capital of the marriage to live off when the 10 million was her entitlement to the family assets generated during the marriage.
Mr Justice Moylan ruled that the former husband's future earnings capacity is not a ‘’matrimonial asset’’ and accordingly it doesn’t have to be shared with Mrs Waggott and that the wife could invest some off her lump sum and live off the interest or get employment.
The Court is always keen to achieve what is known as a ‘’financial clean break’’ to sever the money ties between a husband and wife as soon as possible after a divorce. That will be achieved in the Waggott’s case in three years’ time when the maintenance payments stop.
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What does the ruling mean?
In the press the Waggott Court of Appeal decision has been hailed as a victory for bread winners and the end of ‘’the meal ticket for life’’ of spousal maintenance.
Does the decision mean that? The leading judge was careful to say that he acknowledged that long term maintenance can be required as part of a fair outcome in a divorce . There is therefore a danger in saying that the Waggott decision means there will be an end to spousal maintenance for life.
In Mrs Waggott’s case she had received nearly 10 million and both she and her former husband had bought new houses for about 2 million each. That meant Mrs Waggott still had capital and, as importantly, had previously enjoyed a good career and so she could, in the judge’s opinion, adjust to the termination of her spousal maintenance payments without undue hardship.
That won't be the case for many families where the economically weaker spouse has used all of their capital sum to pay for a new house, perhaps with a mortgage, and therefore doesn’t have the option of living off interest or the prospect of getting a well-paid job that will pay enough to cover the mortgage and bills.
The frustrating thing about family Court decisions is that whilst they lay down principles of law the principles can't be applied rigidly to every family situation. Each Court decision is based on the individual’s personal and financial circumstances. That is why it is so important to get objective legal advice on what a ruling might mean for you and your family. Why? Because there is normally a range of Court orders that a Court could reasonably make in a given family situation rather than one ‘‘right answer’’. That’s why Court litigation is such a lottery as there is always a risk that you could be a loser in a Court battle.
In light of this decision many breadwinners will want to review whether they should apply back to Court to stop their spousal maintenance payments for life and others will want advice on how to negotiate a clean break figure following the Court ruling. Equally those receiving spousal maintenance will need legal advice as Mrs Waggott’s case is a clear reminder, to both husband and wives, of the risks and costs of Court litigation.
For help with any aspect of divorce and family finances or changes to an existing spousal maintenance order please contact us.
Robin Charrot
Apr 12, 2018
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5 minute read
Do I Have to Divorce in my Partner’s Country?
The race to start international divorce proceedings
Most people assume, especially as we are currently part of the European Union, that if a couple decide to separate and get divorced it doesn’t matter which country they petition for divorce in as a ‘’divorce is a divorce’’.
Well that response is both right and wrong. My apologies for giving a stereotypical ‘’on the fence’’ lawyer’s answer but whilst a husband or wife may achieve a divorce as a result of the decision to petition for a divorce in country A it may mean the husband or the wife's financial settlement is a lot less compared to if they had started the divorce proceedings in country B.
The Court of Appeal has been hearing a case involving a German financier Oliver Thum and his wife, Catja, to decide whether to stop the divorce proceedings issued by Mrs Thum in London and to allow Mr Thum’s German divorce proceedings to go ahead:
https://www.dailymail.co.uk/news/article-5504825/German-financier-estranged-wife-divorce-battleground-dispute.html
This scenario of a family with more than one divorce country to choose from is surprisingly common however when a husband or wife are separating they often don’t realise at that stage the financial significance of their decision to start Court proceedings in a particular country or they don’t have the means to challenge an estranged husband or wife's decision to commence the divorce in country A rather than B.
In the Thum’s case it is agreed that Catja Thum started her divorce proceedings in London before her husband had issued proceedings in Germany. The question for the Court is whether her delay in sending her divorce petition to her husband should mean that her divorce petition is dismissed? That is an issue that the Court of Appeal judges are considering.
It certainly won't be the last time this scenario comes before the Court for adjudication for whilst London is perceived to be ‘’the divorce capital’’ for large financial awards there will be always be a natural attraction for the economically weaker spouse to start Court proceedings in England. I am often asked to give preliminary advice where there is potentially more than one divorce Court jurisdiction and if advice is needed from an overseas lawyer as to whether it would be preferable to start divorce proceedings overseas then I can easily arrange this as I am a fellow of the International Academy of Family Lawyers, the world’s leading organisation of expert international family lawyers.
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Always seek expert advice
If there is the potential to start divorce proceedings in more than one jurisdiction it is vital to get expert legal advice as quickly as possible on your options so that you preserve the ability to start divorce proceedings in the country of your choice. Sometimes people are reluctant to take the step of seeing a lawyer but an initial consultation doesn’t commit you to anything but gives you information to help you chose the right option for you. If that option is a divorce then early advice gives you the opportunity to choose the ‘‘right’’ country to initiate the Court proceedings in.
For help with international divorce proceedings or financial settlements please contact us
Robin Charrot
Mar 22, 2018
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3 minute read
Enforcing Family Court Orders
Pilot faces a £600,000 payment and a freezing order after losing his Court battle over the enforcement of a family Court order.
Whenever a divorcing couple end up in Court with a family judge making the decision on how their assets should be divided or how much spousal maintenance and child support should be paid there is always a risk that either the husband or wife or both of them may be very unhappy with the outcome of the Court proceedings and their Court Order.
The dissatisfaction with a family Court judgement and financial order can lead to appeals against the decision or to orders being deliberately flouted in the hope that an ex-husband or wife won't want to launch further Court proceedings to enforce the original financial Court order.
Sometimes financial Court proceedings can take on a life of their own. The media has recently highlighted the case of Richard Wilmot and his ex-wife Viki Maughan who have been engaged in a 16 year battle over payment of child support, with paternity of the youngest child being in dispute despite DNA testing.
The Court has ruled that just shy of £600,000 should be paid to the ex-wife, consisting of child support arrears and legal costs. Importantly the Court has also made a freezing order freezing property, money in bank accounts as well as pension and insurance monies.
The Court decision to freeze assets shows just how far family judges are prepared to go to make sure that Court orders are complied with.
A read of the Court judgement emphasises just how exasperated the judge was by the ‘’utter folly’’ of the ex-husband’s actions resulting in him being ordered to pay nearly £600,000 when the child support arrears only amounted to about £115,000 with the rest of the monies being legal costs and the costs of specialists employed by the ex-wife to trace and recover the money.
The case highlights the financial and emotional costs of engaging in a long drawn out Court battle but, perhaps more importantly, shows the long arm of the law, in this case over a 16 year period to enforce the payment of child support .
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In my view this unhappy Court saga reveals why it is so vital to try and reach an out of Court financial settlement that both an ex-husband and ex-wife can live with to avoid enforcement Court litigation and costs. That isn’t always possible. If a financial Court order has to be made by a judge it is important to take legal advice on appeal options and, if necessary, enforcement options to avoid the costs of the Court proceedings getting out of hand and ultimately, as in the case of Mr Wilmot, dwarfing the amount in dispute between husband and wife.
If you need help with the terms of a financial settlement or a Court order please contact us.
Robin Charrot
Mar 19, 2018
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3 minute read
Jail for Breach of Family Financial Court Order
When I read that an 83 year old had been jailed for 14 months I assumed that he had been sent to prison for a very serious criminal offence. Reading on I learnt that the businessman had been incarcerated for breaching a family financial Court order.
The case of Mr and Mrs Hart highlights that family law judges do have the power to enforce financial Court orders although it remains very rare for a family Court to jail a husband or wife for contempt of Court.
What led to the incarceration? In 2015 Mr and Hart got divorced and Mr Hart was ordered to pay his ex-wife 3.5 million of the couple’s reported assets of 9 million. The Court order involved the transfer of shares in a property company from the ex-husband to his ex-wife. Mrs Hart complained that her ex-husband had breached the financial Court order and she wasn’t able, as a result of Mr Hart’s actions, to run the property company. Those difficulties led to an application by Mrs Hart for Mr Hart’s committal to prison for contempt of Court. When sentencing Mr Hart to custody the judge highlighted the attempts made by Mrs Hart and her lawyers to avoid pursuing the committal application but ultimately, in the judge’s view, there was no option other than a prison sentence to ensure the original financial Court order would be complied with.
Can all financial Court orders be enforced? A lot depends on the precise wording of the Court order. That is why, in my opinion it is vital to make sure that Court orders are written in a way that if either a husband or wife doesn’t comply with what they were ordered to do that the Court order can be enforced. In some situations it is important to anticipate difficulties and to therefore make sure that the family finance Court order gives a tight deadline for the transfer of property, or sets out exactly how a family home will be sold (for example recording the mechanism for agreeing the sale price and the choice of estate agent) and, where possible, providing for the sale of an asset if a transfer of property doesn’t take place by the Court imposed date.
The other important thing to bear in mind is to try and keep financial Court orders as straightforward as possible, subject to the nature of the family assets. Sometimes an ex-husband and wife want to continue to co-own a property or a company together after a divorce but that type of financial settlement, even if incorporated into a Court order, can lead to difficulties and enforcement applications. That is why if there is a simple financial solution the family Courts often prefer that type of Court order to achieve closure and avoid the cost of bringing enforcement action.
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Can financial orders be varied? If a family judge has made a final financial order then normally most aspects of the order can't be changed save for the amount of any spousal maintenance. However depending on the precise wording of the order the Court could be asked to extend time to make a payment or to change how a property is sold. That is why it is important to get specialist legal advice when sorting out a financial agreement so that both an ex-husband and ex-wife know where they stand if they want to vary the financial Court order or they need the order to be enforced.
For advice on enforcing family financial Court orders or to discuss divorce financial settlement options please contact us.
Robin Charrot
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3 minute read
Sharia law and marriage in England – changes proposed by the government
An independent report on sharia law, commissioned by Teresa May when she was home secretary, reported last week on the operation of sharia law in England. The review was set up because of a concern that sharia law was being used as a second legal system in England and potentially sharia councils were discriminating against the women who use the councils to seek a divorce.
https://www.gov.uk/government/publications/applying-sharia-law-in-england-and-wales-independent-review
Sharia law and councils have no legal standing in England and Wales. It is often reported in the media that sharia law is operating in Muslim communities in England and Wales. It is also said that sharia ‘’courts’’ are becoming a parallel legal system in England and Wales. The report highlights the misconceptions that many people and the media have over sharia law and confirms the fact that sharia councils are not ‘’courts’’ and the members of the council are not ‘’judges’’ and don’t make decisions that are legally binding in English law.
Why the concern then about the operation of sharia councils? The worry that led to the commissioning of the independent report into sharia councils was that about 90% of the people who seek help from the councils are women wanting a divorce. Women are the main users of sharia councils as married men don’t need to apply to the council for an Islamic divorce as they can issue a Talaq – a unilateral declaration of divorce.
Some will question the need for government concern over women securing Islamic divorces through sharia councils but the worry is that women are reaching financial agreements with their husbands over the division of family assets in order to secure their husband's consent to an Islamic divorce or that when sharia council members are unofficially ‘’mediating’’ agreements with a couple they are applying Islamic law rather than English law to how family assets should be divided and adopting a very different role to a qualified family mediator. That puts Muslim women at a financial disadvantage when seeking a divorce, in comparison to their contemporaries using the British Courts.
So why would a woman go to a sharia council rather than to a traditional family law Court to get a divorce and a financial settlement? The report states that many women resort to using sharia councils because they underwent Islamic marriage ceremonies and therefore aren’t legally married under English law. In general that type of marriage can put women under a real financial disadvantage in comparison to women who have participated in an Islamic marriage as well as a British recognised civil ceremony.
When coming to its recommendations the authors of the report recognised that to stop women being disadvantaged by turning to sharia law and councils the women needed an alternative redress: the family Court system. The report therefore proposes a change in the law to require those going through an Islamic marriage ceremony to have a civil recognised marriage ceremony. That would then mean that married men and women would have to apply to the Court for a divorce and a financial order. The report also highlights the need to educate on the availability of Court remedies even if a couple have used a form of ‘’mediation’’ or arbitration at a sharia council. That is because the ‘’agreement’’ reached at a sharia council may not reflect the financial outcome that a wife would reasonably expect to receive in an English family Court or is unaware of the options open to her after reaching an agreement as part of the package of getting her husband's agreement to an Islamic divorce.
No doubt it will take a while for the report’s conclusions to be digested and fully considered by all the interested parties and any agreed actions implemented through changes in the law. In the meantime what should you do if you think that your only option is to apply to a sharia council for a divorce? Take legal advice from a specialist family solicitor. The sharia council may not be the only option available to you and getting legal advice on what a family Court would award you in divorce Court proceedings could make all the difference to whether or not you decide to use a sharia council , and if you do , the outcome of how family money and property is divided.
For advice about any aspect of family or children law please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk
Louise Halford
Feb 05, 2018
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4 minute read
India’s Supreme Court Rules Talaq Divorce Unconstitutional
As a divorce solicitor, I often complain about some of the seemingly archaic rules and procedures that have to be complied with to obtain a divorce in the UK. Not only does a petitioner for a UK divorce have to establish that their marriage has irretrievably broken down as a result of adultery, unreasonable behaviour or after a period of separation, but they also have to fill in a divorce petition and sign a supporting statement during the Court process in order to finalise the end of their marriage and get a Decree Absolute of divorce. The divorce process can involve a lot of form filling and normally takes between 4 to 6 months to complete.
Many people in the UK have heard of the Talaq and perhaps think that an instant divorce by a husband repeating the word ‘’Talaq’’ three times would simplify the divorce Court process in the UK. Undoubtedly it would but many Muslim countries are now banning the Talaq on the basis that it is unfair to women as whilst a women can agree to marriage she cannot initiate a Talaq, leaving women vulnerable to being quickly discarded without Court process and without financial protection. .
As reported by the BBC, India’s Supreme Court is one of the latest Courts to rule on the Talaq divorce process and to rule it unconstitutional. https://www.bbc.co.uk/news/world-asia-india-40897519
The Indian Supreme Court reached this opinion after 5 women appealed against the use of the triple Talaq by their respective husband's and the injustice it created for them and their children. The Indian Supreme Court agreed that the Talaq is unfair.
In addition, the European Court of Justice has also recently looked at the Talaq and given an opinion on whether a Talaq is a valid divorce. The Court has ruled that European laws do not cover Sharia divorce. That means a Talaq divorce can't be recognised by the European Court of Justice and needs to be accepted by the individual country as a valid means of divorce. https://www.bbc.com/news/world-europe-42424547
What does this all mean for UK wives who are told about a Talaq divorce or alternatively are threatened with one? ATalaq divorce isn’t recognised in the UK unless the Talaq was not only legal and effective in the country in which it was pronounced but also complied with procedural requirements. That means the UK Court will have jurisdiction to decide on whether the couple can get divorced or not, provided that the marriage is a legally recognised marriage in the UK. If so, not only does the wife get the protection of having to petition or respond to a formal divorce petition but she can also ask the Court to help her financially with an interim or short term maintence award ( known as maintenance pending suit ) and / or long term financial orders sorting out ownership of property and payment of maintenance.
So if you are presented with a Talaq or threatened with one then legal advice should be sought. The Talaq may well not be valid and , as importantly, there are legal UK Court remedies to help sort out child care arrangements and financial matters.
For advice about any aspect of divorce or children law please contact us.
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Louise Halford
Jan 10, 2018
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3 minute read
You Can Get an Extra Financial Order in the UK After an Overseas Divorce
International families are becoming increasingly common as the world reopens to travel after the global pandemic. Nowadays it isn’t uncommon for a couple to get divorced in a country where they are living and for a husband or wife to then want to see if they can get a divorce financial settlement in England.
In this article, international family lawyer and divorce financial settlement solicitor, Robin Charrot, looks at when you can get a divorce financial settlement in England where you got divorced overseas.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
Financial settlement claims after an overseas divorce
Even if you got divorced abroad you may be able to ask the court in England for a financial settlement as part of your divorce. This may be the case whether you got a foreign financial court order or you got no divorce financial settlement overseas.
The law on divorce financial settlements and foreign divorces
The law on divorce financial settlements after foreign divorces is contained in part III of the Matrimonial and Family Proceedings Act 1984. The law allows some people to bring a financial claim in England even though their divorce took place overseas.
The law is designed to protect spouses whose partners have rushed to start divorce proceedings in a country where they know that their husband or wife will get a reduced financial settlement in comparison to what an English court would order.
Can I apply for a divorce financial settlement after my overseas divorce?
You can only apply for a divorce financial settlement in the UK if you got divorced abroad and the foreign divorce court either made no financial court order or it was not sufficient. In addition, you must satisfy these three eligibility criteria:
You have sufficient connection to England
Your divorce is valid legally
You have not remarried
If you satisfy these three eligibility criteria you need to make a court application for permission to pursue an application under the 1984 Act.
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Sufficient connection to England
Sufficient connection to England is the eligibility criteria that raises most questions and where disputes over an application under part III of the Matrimonial and Family Proceedings Act 1984 tend to focus.
Sufficient connection with England can be demonstrated by one of:
You or your ex was domiciled in England at the time of the overseas divorce or at the time of the application
You or your ex was habitually resident in England for 12 months before the date on which the overseas divorce was finalised or for 12 months before the date of the application
You or your ex has an interest in a property in England that was the family home or matrimonial home. You do not need to be the legal owner of the property to make a claim but if court jurisdiction is based solely on the existence of an interest in property your claim is limited to the value of the property
Domicile and habitual residence are complex legal concepts and whether you are domiciled or habitually resident in England will depend on your circumstances. For advice on jurisdiction to bring a claim after an overseas divorce call our team of specialist divorce lawyers or complete our online enquiry form.
How does the English court decide on a divorce financial settlement after an overseas divorce?
The English court has discretion to make a financial settlement once you have leave to make your application. To succeed in your application, you need to be able to show that you tried to get reasonable financial provision in the foreign country and you either received no divorce financial settlement or the award was unreasonable.
The court can order the transfer or sale of property, a lump sum payment, spousal maintenance or a pension sharing order.
Sometimes when a couple have agreed a divorce financial settlement overseas, they need a UK pension sharing order to implement the pension share of an English pension scheme and this can be achieved using the 1984 Act.
Foreign divorces and divorce financial settlement claims are not easy and that is why you need specialist legal advice from a family law solicitor with expertise in international family law.
For expert Divorce and Financial Settlement advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
Feb 10, 2016
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4 minute read
What Does Habitual Residence Mean?
In this blog, children and child abduction solicitor, Louise Halford, looks at what habitual residence means and why it is important in children law proceedings, and in applications for child arrangement orders and disputes over parental child abduction.
For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form.
Why is your child’s habitual residence important?
For international families the legal concept of habitual residence in children law is important. If your child is classed as habitually resident in England, then the court in England and Wales will have the jurisdiction to decide where your child should live, who they should have contact with and whether they can live overseas.
A child’s habitual residence can be complicated because a child can be habitually resident in the UK even though the child is not a British citizen and nor are their parents. If your family is in the UK on a work visa or family visa or dependant visa, your child may be habitually resident in England.
If you are planning to leave the UK with your child it is best to speak to a children law solicitor to see if your child may be habitually resident in the UK and to understand the steps you need to take to legally take your child out of the UK.
If your child is habitually resident, and you don’t follow the correct steps and procedures before leaving the UK with your child, then you could be committing a child abduction offence. The English court could order that your child is returned to England so the English court can decide on where your child should live.
What does habitual residence mean?
Put simply, habitual residence means where you normally live. A child can be habitually resident in a country even though the child’s parents don’t live in that country.
Habitual residence does not have anything to do with your nationality as you don’t need to be a British citizen or have indefinite leave to remain to be habitually resident in the UK. It is a question of fact.
When assessing if a child is habitually resident in England, a child abduction solicitor or children court will look at how integrated the child is. For example, does the child go to school in the UK? Is the child enrolled at sports or other leisure groups in the UK?
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What happens if my child is habitually resident in England?
If your child is habitually resident in England then the English court has jurisdiction to decide where your child should live if there is a dispute with the other parent.
Under English law you can't take a child to live overseas without the agreement of the other parent and the consent of anyone else who has parental responsibility for the child. If you can't get written permission you can apply to court for a relocation order. If you leave the UK without a relocation order or written consent then you could be accused of parental child abduction and your child could be made the subject of a return order.
The law may seem bizarre to some parents, especially when you are intending to return to a home country or a country where you have strong family or other ties. However, children law solicitors recommend that you get legal advice on the meaning of habitual residence and how the legal concept may affect you and your family and the children law order solutions available to you so you can go ahead with your plans to leave the UK with your child.
For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form.
Louise Halford
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4 minute read
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