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Divorced Overseas? English Family Judges Can Still Help You!

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If you have been divorced abroad but are habitually resident in this country, English family judges have the power to ensure that you receive a fair share of the marital assets. In a case on point, the High Court awarded a woman whose marriage was dissolved in Russia, but who had settled in London, a financial settlement of £5 million.

The middle-aged former couple, both Russian nationals, had three children during their 22-year marriage. From very modest beginnings, the husband had achieved great things in business and they had enjoyed a luxurious lifestyle. By the time of their divorce in Russia, the wife had already been living in London for some years and the Court noted that she was clearly habitually resident in England.

After the wife launched proceedings under the Matrimonial and Family Proceedings Act 1984, seeking financial relief following an overseas divorce, the husband failed to engage in the proceedings and repeatedly disobeyed court orders requiring him to disclose the extent of his wealth. The Court described his litigation conduct and his manipulation of the wife in relation to the Russian divorce as ‘appalling’.

The husband’s failure to cooperate meant that very little evidence was available, but the Court concluded that he was worth at least £22 million. The wife, who was a teenager when she married him, had made a full and equal contribution to the acquisition of the marital fortune and, had she been divorced in England, she would have been entitled to half that sum under the sharing principle. Having acquired British citizenship, her connection to this country was strong.

In the circumstances, the Court found that it would be wrong to confine the wife to a solely needs-based award. She had moderated her lifestyle since the divorce and her measured and well-judged claim was based on a very reasonable budget. £5 million, together with assets worth around £1.6 million that she already held, represented a little under 30 per cent of the total marital wealth. Given his poor behaviour, the husband was ordered to pay the wife’s £170,000 legal costs.

Court Returns Two-Year-Old to Land of Birth When Parents' Marriage Collapses

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For a UK court to have jurisdiction over a family law case, it is necessary to show that at least one party to it has habitual residence in the UK. In a recent case, an Israeli woman divorcing her Israeli husband sought a declaration that their two-year-old daughter was habitually resident in the UK so that the UK Family Court could deal with the hearings regarding the child’s welfare.

The Court refused the application and accepted that the child should be removed to Israel in accordance with the father’s wishes. He had previously consented to the child coming to the UK with her mother but then sought an order under the Hague Convention on the Civil Aspects of International Child Abduction 1980 to have her returned to Israel.

The couple had moved from Israel to the UK in an apparent attempt to salvage their marriage as part of a plan for a ‘fresh start’. The mother alleged that the marriage failed because of physical and emotional abuse by her husband, whom she characterised as ‘dangerous and violent’. However, evidence was produced that she had been advised to make false allegations about her husband to mislead the Rabbinical court, and there was a marked lack of evidence for the alleged behaviour or the mother having taken earlier action with regard to it. In addition, the rather short period between the couple’s arrival in the UK and the final breakdown of their marriage was not regarded as ‘a picture of stable integration into family and social life’.

In a long judgment (25 pages), the judge ruled that the child was habitually resident in Israel, not the UK, and should be returned there.

Time of the Essence in Overturning Agreements Made Under Duress

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We have often stressed the importance of obtaining high-quality legal advice in any dispute and starting any necessary legal action as soon as possible, and a recent divorce dispute illustrates why.

It involved a couple who were divorced in 2015. The financial settlement was made by way of a consent order and, as a result, the ex-wife received a cash settlement in excess of £1.7 million and financial support from her ex-husband for herself and their children.

In 2018 she went back to court, claiming that the original settlement had been obtained under duress and by ‘undue influence’, that her ex-husband had committed fraudulent non-disclosure of his true means and that she had not had legal advice on the terms of the agreement. Among specific allegations made were that he had transferred $5 million to his mother and had retained or ‘squirrelled away’ various assets without disclosing them.

She wished the original consent order to be set aside. Before it was made, she had instructed a firm of commercial solicitors that did not have a family law department to act for her. This was, she claimed, done at her ex-husband’s behest. That firm instructed another firm to provide her with family law advice. Her ex-husband had instructed the commercial firm on other matters and his ex-wife alleged that the arrangement had been made so that he could control the advice she was given, which she asserted was scant.

As happens in almost all such cases, there was voluminous and contradictory evidence. However, an important consideration was that the woman was aware of most of the matters about which she was complaining when the original consent order was made. Secondly, when she eventually went to a different firm of solicitors for advice, she failed to take action for nearly a year, a delay which undermined her claim as it lacked the necessary promptness. The judge commented that ‘on the hypothesis that she was constrained from bringing her application for a period because of the husband’s undue influence or duress, the onus was on her to make her application as soon as she could reasonably do so once she became free from that influence or duress. In practice, that means within weeks, not months.’

Her application was rejected.

Court Appearance May Not Mean Public Disclosure

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The principle of open courts is highly valued in the UK legal system. However, it is often a worry to people engaged in legal proceedings concerning family or marital issues that by going to court their family’s private affairs will become public knowledge.

In practice, with the assistance of expert legal guidance, many disputes can be efficiently negotiated without the need for a court battle. However, when the outcome of the dispute is court proceedings, the result may not be as bad as you expect.

Firstly, where children are involved, the courts will prohibit their identification, so that any reports are issued in anonymised fashion. Secondly, where it can be justified, it is possible to ask the court for an order which prohibits the reporting of the case.

Recently, for example, an order was granted to prohibit reporting on an appeal hearing in financial remedy proceedings in a divorce case, due to be heard later this year, in order to prevent the identification of the son of the parties involved. The Court of Appeal was of the opinion that the balance between the public interest and the right to anonymity on human rights grounds tipped heavily in favour of the latter.

Ignore Court Orders At Your Peril

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A wealthy Omani man who failed to pay to his ex-wife the financial settlement ordered by the court, or to cooperate with disclosure orders, faces arrest if he attempts to return to the UK.

When the couple’s marriage broke up, they were divorced under Omani law. However, the wife, a resident of the UK, sought and obtained orders in the UK court for financial relief (under Part III of the Matrimonial and Family Proceedings Act 1984) for herself and their children, who live with her.

The divorce took place in 2017 and the father remained in Oman, having not seen his children for many months at the time of the hearing. He did not comply with any of the court orders made and has not made the maintenance payments ordered.

In making a final financial order for maintenance and a lump sum, the judge also ruled that the husband should be committed to prison for three months for the failure to pay a matrimonial debt he clearly has the means to pay.

Absence of Evidence Dooms Unequal Shares Claim

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The legal ownership of property is not always the same as the beneficial ownership and disputes can arise when no documentation is executed to show the two are different. Such was the case in a recent dispute which occurred after a couple who had two children but never married broke up. The male partner worked in the IT industry and earned the greater part of their income. The female partner was a midwife, who switched to part-time working then gave up work to look after their young children.

The couple had moved to Hampshire from London, buying a property for £740,000 financed largely by the sale of the male partner’s property and a joint mortgage of just under £500,000. The female partner paid £39,000 to assist in the purchase, which was registered in joint names.

When the couple broke up, the ownership of the property was disputed. At the heart of the dispute was whether they intended to purchase it as joint tenants, as the female partner contended, or as tenants in common, as the male partner asserted. If they had purchased it as joint tenants, the value would be split between them equally. If they had purchased it as tenants in common, it would be owned in unequal shares corresponding to their respective contributions to its purchase.

Among the evidence given was that the male partner said in a conversation in a pub, "We are now 50:50 owners but that means you owe half the debt as well." The ownership of the property was recorded at the Land Registry as being a joint tenancy, this being consistent with the advice of the solicitor who acted on the purchase that in the event of either partner’s death, the title in the property would pass to the survivor.

At the original hearing, the judge ruled that the value of the property should be split equally. The male partner applied for permission to appeal, arguing that whilst he would have been content for title to pass if he died, while he was alive he would not have accepted a 50:50 split on a sale as he had provided more of the capital for the property’s purchase. He also contended that the evidence presented at the first hearing could not displace the assumption that the ownership would be in the ratio of the respective partners’ contributions.

In refusing the right to appeal, the High Court placed emphasis on the fact that the male partner did nothing to show that it was intended for the beneficial interest he had in the property to be different from the legal interest.

The moral of the story is that if you are buying a property with someone else and the legal title rests with all the buyers, you must ensure that if the beneficial interest is different, the appropriate documentation is put in place.

No Fault Divorce Legislation Promised in Next Parliamentary Session

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The process of divorce in the UK has for many years been seen as rather long-winded and tending to produce more conflict than need be. One of the reasons for this is that the grounds which demonstrate an ‘irretrievable breakdown’ of a marriage – the justification for a legal divorce – effectively apportion blame for the breakdown. This can cause the debate to become more argumentative than is necessary.

The Government launched a consultation last year and changes to the system were proposed to bring in ‘no fault’ divorce. These have met with overwhelming approval.

The Government has therefore promised to introduce legislation in the next Parliamentary session, which begins in May.

Mother Placed Under Improper Judicial Pressure to Consent to Care Orders

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The quality of British justice is respected around the world – but there are inevitably occasions when judges overstep the mark. In a family case on point, a mother had her two young children taken into care after a judge dismissed out of hand the  arguments put forward in her favour.

The mother was separated from the children’s father and trouble broke out when he failed to return her four-year-old daughter after taking her on holiday for a week. The mother and others went to his home, causing a fracas, and took the little girl away with them. The mother and other members of her family were subsequently arrested. The children were taken under police protection and placed in foster care.

Three days later, the local authority’s application for interim care orders in respect of both children came before the judge. She repeatedly warned the mother that, if she did not agree to the care orders, she would be stuck with any adverse findings made against her. In that event, the mother was told that the matter would probably be reported to the police and the Crown Prosecution Service.

The mother’s lawyer argued that she had faced a difficult choice and that she had been obliged to take steps to safeguard her daughter’s welfare. The judge, however, described those arguments as ‘nonsense’ and ‘preposterous propositions’ that would ‘fall on deaf ears’. Following a brief adjournment, the mother gave in and consented to the interim care orders being made. However, she soon afterwards became distressed at what had happened and lodged an appeal on the ground that she had been subjected to improper judicial pressure.

In upholding her challenge, the Court of Appeal found that her consent had not been freely given and had been secured by oppressive behaviour on the part of the judge, in the form of inappropriate warnings and inducements. Regardless of the fact that she had been legally represented, the judge’s approach went far beyond firmness and the mother had not received a fair hearing. The Court’s ruling means that the council’s application for interim care orders will be reheard by a different judge.

International Dimension Makes Child Travel Risky

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The welfare of children is always top of the list of priorities of the Family Court when making arrangements following the break-up of a family. This can be especially difficult where the parents are from different countries, as shown by a recent case in which the Court considered the welfare of a child of a Mexican mother and an English father.

When the child, aged seven, had expressed a wish to return to live in Mexico, the CAFCASS official appointed as the child’s guardian recommended that this did not occur. When the child was 18 months old, the mother had taken her to Mexico to visit her family for what was intended to be a short holiday, but had stayed there. It took four years to obtain the return of the child to the UK, in the face of deception and obstructions put in place by the mother.

Recently, the mother expressed the wish to go to Mexico to see her elderly father, and to take the child with her. The mother has formed a new and lasting relationship with another English man and lives in the UK. She claimed to be ‘in a different place’ now. The judge commented at length that there were obvious risks of a repetition of the earlier events if the application were granted.

The hearing made it plain that careful safeguards would be required and a substantial financial bond would have to be put in place by the mother to enable the father to recover the child should legal proceedings be necessary. In addition, part of the earlier separation agreement would have to be redrafted.

As the issue was not capable of resolution at the hearing, a further hearing has been scheduled for mid-March 2019 and a final hearing for July. CAFCASS was reappointed to act as the child’s guardian, with a recommendation that the same officer be appointed.

High Court Decision Underlines the Finality of Divorce Arbitration Awards

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Divorcing couples can sometimes achieve savings of both time and money by opting for arbitration, rather than court proceedings, as a means of resolving any financial disputes. However, as a guideline High Court case underlined, arbitration has its potential downsides and it is vital to remember that arbitrators’ decisions are generally treated as final.

Faced with the prospect of having to wait several months for a court date following the breakdown of their ten-year marriage, a middle-aged couple chose to submit their differences to an arbitrator. He decided that the net capital assets of the marriage should be divided 60 per cent to 40 per cent in the husband’s favour.

Such division was to be achieved by the sale of the family home and was designed to enable each of them to purchase a new property. The wife was awarded 76 per cent of the husband’s pension and he was required to pay her maintenance at steadily reducing rates up to the date of his retirement. The wife was, however, dissatisfied with the arbitrator’s award, arguing that it was untenable.

She claimed, amongst other things, that the arbitrator had failed to take into account her inability to take on a mortgage and the husband’s excessive spending following the end of the marriage. In those circumstances, she argued that the award should not, as is usual, be recognised in the form of a court order.

In ruling on the matter, the High Court noted that arbitration awards are binding in their own right, although they are generally confirmed by court order so that they can be enforced against third parties. However, an arbitration agreement, or an award, does not oust the Court’s jurisdiction under the Matrimonial Causes Act 1973 to investigate the circumstances and make an order in different terms.

The effectiveness of the arbitration scheme, however, depends on awards being generally treated as effective and binding. In pursuit of a swift resolution of the dispute, both husband and wife had freely entered into the arbitration process with the benefit of legal advice. Both had also signed a form by which they signalled their understanding that the arbitrator’s award would in principle be final.

In dismissing the wife’s arguments, the Court found that she had failed to establish any fundamental change in circumstances, or mistake on the arbitrator’s part, sufficient to undermine his clearly reasoned and balanced award. In the circumstances, the Court made an order in the terms of the award.

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