International couples relocating to or from the UK, whether for work or personal reasons should take advice about the legal regime in England and Wales or the recipient country before agreeing to make the move. In this article, we detail some legal considerations arising from personal relationships for individuals who have links both in the UK and internationally, in regards to the law in England and Wales.
International couples will often have connections to multiple countries and this means they already potentially have access to more than one legal regime. If a separation appears possible, it’s important to act quickly and quietly, obtaining advice in the competing jurisdictions to check what is in the client’s best interests. Some individuals will intentionally encourage relocation or take steps to meet the relevant criteria of another more favourable jurisdiction before progressing the divorce.
The regime in England and Wales can be particularly generous compared to other jurisdictions and so prompt advice should be sought if there is a risk of clients having jurisdiction here. If the couple recently lived in England and Wales, either/both are British nationals or there is a chance one of them may move to England and Wales imminently, these would be a good indication of the need to check whether the legal process here is also available to them.
Individuals are often surprised to learn that the family law regimes differ so vastly across the globe – in terms of disclosure obligations, the powers of the court, enforceability of prenups, use of marriage contracts and the awards that will be made between spouses.
Before agreeing to move jurisdiction therefore, it’s sensible for a couple to take advice about the legal regime they are entering and also consider a nuptial agreement – both recording how their assets would be dealt with if they separated and which legal regime should be applied.
Alongside this, it’s important to ensure that any steps taken to settle in the country do not give rise to unintended consequences. As such, clients should think carefully when buying a property in England and Wales as the family home, putting a property into one person’s name or in joint names using funds from outside of the marriage, acquiring a business here or otherwise taking steps which could be deemed to centre their interests.
If a client is borrowing funds from family members to pay international school fees or relocation costs, ensure this is all properly documented into a loan agreement, as loans in the family court can often be treated as soft loans which may not be deemed as truly repayable.
In order to move jurisdiction with children, it’s usually necessary to seek the consent of the other parent or caregiver. Different countries have different entry requirements, so a consent letter, affidavit or the court’s involvement may be required if both parents are not making the move. The court where the child is usually resident will generally have the power to deal with issues relating to your child. As such, it’s important for clients to be cautious before agreeing for one parent to temporarily relocate to another jurisdiction.
To obtain the court’s permission to leave the UK, it’s necessary to create a clear plan to show why the move is in the child’s best interests. As such, lots of planning is required to produce evidence that the proposed move has been carefully thought out and how the loss of contact will be made up. We can also provide support to clients who are looking to move to the UK, with collating evidence about a particular location and advising on the enforceability of orders here/any steps that need to be taken.
It's also important to ensure that if a parent does relocate abroad, to ensure the recipient country will enforce the foreign order, or that there are reciprocal arrangements in place.
If a client is acquiring property or a business, or doing tax planning work (such as creating a trust or family investment company) in England and Wales, it’s important to ensure this doesn’t provide unintended consequences.
We can provide advice about the implications of holding assets here in a certain way, if the relationship later broke down and they meet the jurisdictional criteria to divorce here. We provide holistic advice alongside our private client and corporate colleagues.
If a client is gifting significant wealth to the next generation and any of the recipients are based in England and Wales, caution should be applied to the status of their relationship, to ensure the recipient takes advice about the implications of holding assets here in a certain way and whether any documentation could be put in place to help ring-fence a particular asset.
The importance of nuptial agreements for internationally based couples cannot be underestimated. Different legal regimes also have different attitudes to prenups and marriage contracts. In England and Wales for example, a prenuptial agreement is not legally binding and needs must be carefully met, whereas in other countries they will usually be upheld however draconian. As such, a mirror nuptial agreement may be required if a couple is entering into a nuptial agreement internationally and:
Foreign orders: advice should be sought before a foreign order is made against assets in England and Wales to ensure they can be enforced.
English pensions: foreign orders will not automatically be enforceable against pension companies in England and Wales. As such, it may be necessary to make separate court applications here, or to instruct a specialist pension expert who can advise on the ‘offsetting’ value of the pension for the pension holder to retain the same in full.
Recourse to England and Wales: if there is a concluded divorce in another country, but a connection to England and Wales, one person may still be able to seek recourse to the courts of England and Wales if the settlement falls short of their needs and certain criteria are met.
Children: if a child is living in the UK, a child maintenance obligation will likely arise as well as potential financial claims on behalf of the child – this applies whether or not the couple are/were married. These claims survive a divorce, even where there is a final financial order. Advice should therefore be taken alongside any divorce, to ensure the divorce settlement covers the needs which may undermine any such future claim.
Please contact our family team for further information and advice. At Ashfords, our team of specialist family lawyers working within our private wealth division, advise both those living in England and Wales or those living abroad.
We’re very happy to discuss any clients which may require support along the lines of the above, or to make introductions to necessary experts here to assist with business valuations, tax advice or pensions where the assets are in England and Wales.
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