Your Legal Questions Answered

Alison Hill of Woolley & Co, Solicitors answers your legal questions

A 6-point plan for an amicable divorce

English family law solicitors Woolley & Co offer this practical 6-point plan to help keep your relationship on an amicable footing during divorce.

1. Avoid seeking revenge against your spouse
This can be difficult, especially if you feel that you are the “wronged party”. Focusing on the past is usually counter-productive when it comes to sorting out the arrangements for your children or finances. If the emotional temperature has already been raised in “tit for tat” exchanges, it will be much more difficult to resolve big issues sensibly. Pick your battles.

2. Keep communication channels open
If you are not on speaking terms with your ex-to-be and you don’t have a forwarding address for them, sorting out your divorce will be more difficult, and expensive. Ideally, keep talking to your spouse and get their up-to-date contact details. If you have managed to keep them on side, chances are they will be more receptive to your requests.

3. Never use your children as pawns
Whether you are married or not, you will continue to be co-parents of your children for the rest of their lives. You could seriously risk alienating your children when they are old enough to realise what was going on. Don’t do it.

4. Accept that the other person may be mentally or emotionally at a different stage of the process to you
Divorcing spouses go through different stages, including shock, denial, anger, bargaining and acceptance. If you have been planning to leave your spouse for some time, and they have no idea, it will probably come as quite a shock to them when they do find out. Whilst you may have had time to come to terms with what living without them will mean, they may not. Try listening to their concerns as it may help you understand their point of view.

5. Use your support network
Don’t be afraid to ask for support from friends, family, your doctor, expat organisation or a professional counsellor if you are struggling. Mutual friends will not enjoy being asked to take sides, but true friends will be happy to help.

6. Rise above it and stand your ground where necessary
If your ex is being completely unreasonable, resist the temptation to stoop to their level. It won’t make you feel any better. If you are being bullied or suffering domestic violence you may need extra support from your lawyer.

If you are able to come to an amicable agreement about divorce you can keep costs under control and may be able to split the cost of the divorce between the parties.

Helping expats with their amicable divorce
Woolley & Co offer a fixed fee divorce and also a free initial telephone appointment. Our Egyptian based lawyer, Alison Hill, deals with the particular intricacies for expats divorcing through the English courts whilst living abroad. For advice on how to keep your divorce amicable contact Alison by email at alison.hill@family-lawfirm.co.uk.

I’m British, I live overseas, can I get a divorce in England?

In the question of where and how you can obtain a divorce there are some technical factors which need to be considered.

Firstly, the law in England and Wales is different to the law in Scotland. If you consider yourself to be a Scottish citizen or have a stronger connection with Scotland than England you should take advice from a solicitor qualified in Scotland.

If one of you is Scottish and the other from overseas or from England however you may still be able to divorce in England.

The main issues to consider however are that of domicile and residence. This will determine which legal system has jurisdiction should you wish to obtain a divorce.

The first thing to note is that ‘residence’ and ‘domicile’ is not the same thing. You may have been a resident of Spain, for instance, for many years and still be domiciled in the UK for legal purposes. Domicile is a somewhat obscure legal concept but means, basically, that you have a ‘legal connection’ with England and that the English courts therefore have jurisdiction to grant you a divorce.

Unless you have relinquished your domicile by:

• taking out foreign citizenship or naturalization or
• cutting all ties with England and having the intention to remain in your chosen country for the rest of your days

then in most circumstances anyone originally from England or Wales can use the English Courts, on the basis that they are ‘domiciled’ in the UK.

Woolley & Co, Solicitors, based in England, provide advice to British expats on whether they can apply for a divorce through the UK courts. Visit www.family-lawfirm.co.uk for more details.

I live abroad, if I want to get divorced will I have to return to England to go to Court?

In straight-forward divorce cases neither party actually has to attend a court hearing.

Provided you use a solicitor who is used to handling divorce cases with an international element the divorce process is very straight-forward. A series of documents is produced and filed with the court on your behalf and provided your spouse is in agreement about the divorce and the grounds used there should be no need for either of you to attend a court hearing.

If you also need to agree a financial settlement or are in dispute about where your children will live or when each parent can have contact, this is when a court hearing may be necessary. If however, you have come to an agreement about money and the children your solicitor will be able to prepare the necessary documents, gaining agreement through your spouse’s solicitor, and again there will be no need for you to return to England.

If you are in agreement with your spouse about getting a divorce Woolley & Co offer a fixed fee divorce. Visit www.family-lawfirm.co.uk or email your enquiry to info@family-lawfirm.co.uk.

I’m English and live abroad why should I divorce through the English Courts?

Using the English legal system is often much quicker, cheaper and more effective than attempting to use the local jurisdiction and in many instances expats are prevented from doing so.

An English solicitor will explain the process and your rights under English law which could be very different to your rights under the laws of the country in which you live. Many countries take a more restrictive approach to maintenance for spouses than we do in England and Wales, often starting from the position that both spouses should be self-supporting after divorce. In some countries there is no such basis for sharing the matrimonial assets.

In Austria, for example fault can be taken into account in agreeing a financial split. The spouse deemed solely or mainly guilty for the break-up has to support the innocent party financially. In Poland a similar rule applies.

A large number of countries allow inherited wealth or assets acquired before the marriage to be excluded from the pool of marital property to be shared on divorce. This is not the case under the English system.

So your decision on where to divorce need to take into account many factors, not least whether you can fully understand the language that will be used for all the documents and any court hearings.

If you are in doubt about whether you can or should apply for a divorce in the UK take advantage of the Woolley & Co free initial telephone appointment or email your enquiry to info@family-lawfirm.co.uk.

Who needs to agree to me taking my child abroad to live?

Under English law everyone with parental responsibility for the child – usually both parents – has to agree that the child can move to live abroad.

If a child is taken out of the UK, without the agreement from everyone who has parental responsibility or the Court's permission via a court order, this is technically known as “child abduction”. The party who objects may apply to the Court to have the child returned to the UK.

If the country where the child has been taken to has signed The Hague Convention then the child will be returned to their country of residence. If the country where the child was taken has not signed The Hague Convention then any application will be dealt with in that country's courts.

An application to the Court to take a child abroad is frequently successful provided the legal requirements are fully satisfied.

For a free initial consultation relating to taking your child to live abroad contact Ali Hill of Woolley & Co, Solicitors (alison.hill@family-lawfirm.co.uk).

How do I obtain a court order to emigrate with my child when my ex doesn’t want me to go?

It is worth firstly considering the basis on which the court will consider a request to take a child abroad to live.

Quite rightly the welfare of the child is always paramount. The child’s wishes will be taken into account where appropriate depending on age and maturity.

The court will consider whether the person making the application is genuine, in the sense that it is not motivated by some selfish desire to exclude the other party from the child's life.

Consideration will also be give to whether the application is realistic, looking at issues like accommodation, education, health care and jobs. If the application fails either of these tests, the application will be refused.

If the application passes these tests then the reasons for the opposition will be carefully assessed: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to this party and their future relationship with the child were the application granted?

This is a very complicated area of law and you will need to take expert advice from a family lawyer experienced in the issues of jurisdiction.

For a free initial consultation contact expat family law specialist Ali Hill of Woolley & Co, Solicitors (alison.hill@family-lawfirm.co.uk).

Got a question about divorcing from overseas? Email Expat Network here and specialist divorce and family lawyer Alison Hill of Woolley & Co, Solicitors will provide her expert view.

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