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  4. Chapter 3 – English family law – Sonny Patel

Chapter 3 – English family law – Sonny Patel


Sonny Patel – English family solicitor
Expatriate Law

There are three headline aspects to a divorce:

  • The procedural dissolution of the marriage so that the separating couple are no longer legally husband and wife;
  • Dividing assets and defining financial responsibilities to the children and to each other;
  • Agreeing post-separation co-parenting arrangements.

In English law, the dissolution of a marriage and the process of negotiating the terms of a financial settlement unfold in parallel.

Individuals are not required to divorce in the country in which they married.

British expats around the world can usually choose to divorce in the court system of the country where they are living or via the English court (even while they are living abroad).

In the international context, it is essential to note that the jurisdiction in which the divorce petition proceeds determines the legal framework against which the financial negotiations will take place.

British expats worldwide are able to initiate proceedings in England, despite living abroad, because of the adhesive nature of their Domicile of Origin. Englishness sticks.

When does the English court have jurisdiction?

The English courts have jurisdiction to deal with the divorce only where:

  1. Both parties are habitually resident in England and Wales; or
  2. Both parties were last habitually resident in England and Wales, and one of them still resides there; or
  3. The respondent (the person whom the divorce is filed against) is habitually resident in England and Wales; or
  4. The petitioner (the person who filed the divorce) is domiciled and habitually resident in England and Wales and has resided there for at least 1 year immediately before the petition is filed; or
  5. The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least 6 months immediately before the petition is filed; or
  6. Both parties are domiciled in England and Wales; or
  7. Either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.

To establish jurisdiction, points (1) to (5) require physical presence in England/Wales of one or both parties.

Points (6) and (7) do not require the physical presence in England/Wales of either of the parties. The practical implication is that under points (6) and (7) the divorce can proceed in England even though the individual lives abroad.

What is domicile and how to determine the place of domicile in English law?

Everyone has a domicile at all times and it is only possible to have one domicile at any one time. In the context of English divorce jurisdiction, it is essential to understand 2 primary forms of domicile:

  • Domicile of origin; and
  • Domicile of choice.

Domicile of origin

The domicile of origin is the domicile that a person acquires at birth and is the country in which their parent is domiciled at the date of birth.

Where the married parents of a child are both alive and living together, the child’s domicile will be that of the father. A child born to unmarried parents or to a mother following the death of the father will have the domicile of the mother.

Domicile of origin is difficult to relinquish. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. The burden of proof is on the individual to demonstrate that he has lost his domicile of origin.

Domicile of choice

A domicile of choice can be acquired by the combination and coincidence of residence in a country and an intention to make one’s home in that country permanently or indefinitely. In simple terms, the individual must be physically present in the country and be able to demonstrate their intention to live there forever. Physical residence for a short period of time, even a few days, may be sufficient to establish a domicile of choice, as long as the intention to reside in that country is for the indefinite future.

A person may abandon a domicile of choice in a country by ceasing to reside there and by ceasing the intention to reside there indefinitely.

When a domicile of choice is abandoned, a new domicile of choice may be acquired. However if a domicile of choice it is not properly acquired, the domicile of origin revives.

Prior to Brexit, the English court’s power to make maintenance orders was restricted when English jurisdiction was pleaded based on only one of the parties retaining English domicile. However, from 1 January 2021, when English jurisdiction is pleaded based on either parties’ sole domicile, the English court has unrestricted power to make spousal and child maintenance orders as well as dealing with the division of worldwide assets.

The digitisation of legal practice

Expatriate law has been almost entirely paper-free for over 8 years. We are instructed by clients from around the world and work from our offices in London, Abu Dhabi and Singapore. We plan and organise our days based on the timezones of our clients and collaborators.

Communications take place via telephone calls, Zoom and email; we collaborate on documents in real-time by sharing screens remotely. Almost all of our cases can, if necessary, be conducted entirely digitally:

  • Consultations take place via telephone call and Zoom;
  • Divorce petitions are issued online;
  • Financial applications are submitted to the court digitally;
  • The use of digital signatures in most legal documents is valid. There is no longer any need for documents to be physically signed and couriered around the world;
  • Service of divorce petitions is now done by email;
  • Mediation can take place using video conferencing;
  • Conferences with senior barristers in London can take place using video conferencing;
  • Consent orders can be lodged online or submitted by email;
  • E-bundles are now the norm and can be submitted via dropbox. If the court insists on a hard copy bundle, our London team will prepare the bundle and lodge it at court;
  • First Appointments can be heard remotely or vacated by agreement using the Accelerated First Appointment procedure;
  • Financial Dispute Resolution (FDR) hearings are now commonly dealt with privately. Private FDRs in particular can very easily be conducted by video at a time which suits all parties involved;
  • Court-based FDRs, arbitration and contested hearings can be handled remotely via video link.

England vs Singapore

The jurisdiction in which the divorce takes place fixes the framework of law which applies to the division of the parties’ assets and income.

Although Singapore’s legal system has roots in English common law, Singapore applies an entirely separate body of law which reflects local customs and values.

There are a number of fundamental differences between England and Singapore in their respective approaches to the financial matters on divorce. The starkest example is how each country’s legal system defines and then treats non-matrimonial assets on divorce.

In Singapore, if an asset is categorised as non-matrimonial, the asset can be definitively ring-fenced during the divorce, regardless of the needs of the party making the financial claims.

In England, non-matrimonial assets are available for (or vulnerable to) division if “needs” cannot be met from matrimonial assets alone. There is no statutory definition of “needs” in English law.

The debate about what amounts to “needs” can be fiercely contested during the divorce process. In high net worth cases, it is not uncommon for the court to determine “needs” measured in seven-figure sums.

In very broad terms, “needs” will be measured by assessing the standard of living during the marriage against the available financial resources, the length of the marriage, the age of the parties and choices made by the couple regarding childcare. It is generally accepted that it is not appropriate for the divorce to entail a sudden and dramatic disparity in the parties’ lifestyles.

Fluidity in the definition of “needs” means that, in English law, there is no definitive dividing line between matrimonial and non-matrimonial assets.

There is also a difference between how both courts divide strictly matrimonial assets.

In Singapore, the court will take into account the factors set out in Section 112(2) of the Women’s Charter. While the court retains a discretion in determining a fair and equitable division of assets between parties, the court will apply a structured arithmetical approach to the division of matrimonial assets when there is sufficient evidence to do so.

In English law, there is no standard formula for calculating appropriate financial provision on divorce. Instead, the court has a duty to consider all the circumstances of the case and to take into account a range of factors set out in section 25 of the Matrimonial Causes Act 1973 (section 25 factors).

In England, the court first considers the welfare of any child(ren) of the family under the age of 18. The court then considers the section 25 factors, which can be summarised as follows:

  • The capital and income resources available to the parties, either existing or reasonably foreseeable.
  • Details of the financial needs of the parties, taking into account:
  • their standard of living;
  • their ages and the length of the marriage; and
  • any disabilities.
  • The court also considers the following additional factors:
  • the respective contributions of each party to the marriage;
  • the conduct of each party (although only in exceptional cases); and
  • any benefit either party will lose as a result of the divorce (such as a spouse’s pension).

When considering the section 25 factors and determining a fair financial outcome for the parties, different judges may reach different conclusions on the same facts, all of which would be within their judicial discretion.

The starting point is that assets accrued during a marriage are divided equally.

The matrimonial home is normally considered a matrimonial asset, so its value is divided equally between the parties even if it was owned by one of them before the marriage.

Where an equal division of matrimonial assets adequately provides for the capital and income needs of each party and any children, that is the appropriate financial outcome.

If an equal division of matrimonial assets does not meet either parties’ needs, then non-matrimonial assets can be accessed to meet needs and the court can order that maintenance is paid from one party to the other.

In Singapore, it is the wife who is entitled to receive spousal maintenance. The husband is entitled to file claims for maintenance only under specific circumstances, for example if he is incapacitated and that incapacitation impacts his ability to support himself financially.

In England, either party to the divorce can make a claim for spousal maintenance. Spousal maintenance is appropriate when one of the parties doesn’t have sufficient assets or income to cover their daily needs. “Needs” can be interpreted generously with reference to several factors, including the assets that are available for distribution and the standard of living that was established in the marriage. In England, spousal maintenance can be payable for as long as it takes for the payee to adjust to independence without “undue hardship”.

Imprecise terms such as “needs” and “undue hardship” combined with judicial discretion means that what is or is not a “fair” outcome is fact-specific and open to debate.

When the choice of jurisdiction is between Singapore and England the decision of where any divorce should take place must involve a fact-specific, nuanced and objective analysis. The decision of where to divorce is not necessarily based on gender.

Defended divorce petitions

Issuing a divorce petition in your choice of jurisdiction first in time can be procedurally and tactically advantageous but being first does not in its own right guarantee your jurisdiction of choice. Either party can issue proceedings in the other jurisdiction second in time, but that process immediately involves both parties instructing lawyers in both jurisdictions and the process rapidly becomes contentious and expensive. Being first puts the onus on the other party to make the decision of whether to impose jurisdiction litigation on the parties.

Careful bespoke advice is needed from lawyers working collaboratively in both jurisdictions. There must be a careful assessment of the proportionality of continuing litigation, compared to the value of the possible difference in outcome across the competing jurisdictions.

What if the parties agree to proceed in England (finances)

Assuming that the divorce takes place in England, the process of dealing with finances in England is usually broadly as follows:

  1. Gathering all facts and figures in an extensive financial disclosure Form known as Form E
  2. Written questions arising from Form E, then replies
  3. Agreeing an asset schedule
  4. Negotiating a financial settlement within a spectrum of realistic outcomes

There are a variety of methods of dealing with finances on divorce:

  • Voluntary direct agreement between the separating couple, usually with legal advice in the background (“kitchen table” discussions)
  • Mediation, also with legal advice in the background
  • Solicitor-led negotiation (written offers after financial disclosure)
  • Private FDR – where a hand-selected Judge will give an indication of what financial outcome a court is likely to impose if the case proceeded to a fully contested finally hearing.
  • Financial Disclosure and negotiations in accordance with an obligatory court timetable
  • Arbitration. A form of private dispute resolution in which the parties enter into an agreement under which they appoint a suitably qualified person to adjudicate their dispute and make a binding award.

Financial provision in England after an overseas divorce

A British expat choosing to divorce through the Singapore courts and/or to contest English jurisdiction, must be aware of the potential subsequent financial claims that could be made through the English courts by their spouse for a financial settlement after a foreign divorce, under Part III Matrimonial & Family Proceedings Act 1984. The English courts can grant financial relief to alleviate adverse consequences where no financial provision is made by the foreign court, or where the provision made is deemed to be inadequate.

A recent Singapore Court of Appeal case, confirmed that where British expats have a Singapore divorce imposed upon them, and certain assets were excluded from division because they were defined as “non-matrimonial”, there may be a viable route to pursue further financial relief in the courts of England and Wales.

Therefore when negotiating a financial agreement in the context of a Singapore divorce, where either party remains domiciled in England and Wales or where there is a UK property which has been used as a matrimonial home, the proposed outcome should take into account whether the agreement would be considered to be adequate if the divorce had taken place in England. Otherwise that parties may find themselves in a second round of litigation.

In light of the Singapore Court of Appeal confirming that English Part III proceedings are a viable way to proceed after a Singapore divorce, I predict that Singapore vs England jurisdiction contests will occur less frequently – after all, what is the purpose of wasting time and resources fighting for Singapore jurisdiction if the English court can step in at a later date anyway.

Movement of children

Singapore and England are both Hague Convention countries.

Should one party wish to relocate with the children back to the UK, the starting point is that they will need the other party’s consent before doing so. Failure to seek permission or consent could amount to child abduction.

A parent who wishes to relocate with the children back to the UK, should start by obtaining consent in writing from their spouse that he/she agrees for the children to be relocated on a particular date.

If the parties are unable reach an agreement, the parent who wishes to relocate with the children should make an application via the Singapore Family Court for permission to relocate any children to the UK. The parent seeking relocation should put together a well-thought out and practical proposal with regards to the children’s living, educational and healthcare arrangements upon relocation. The proposal should be focused on the welfare of the child and should also include plans for the other parent to maintain contact with the children.

If either parent simply flees with the children, the left-behind parent is able can pursue the immediate summary return of the children by making a Hague Convention application. The starting point is that the children must be returned.

The parent who left Singapore might be able to establish one of the limited defences to resist the return of the children to Singapore.

Article 12: That more than one year has passed since the removal of the child
Article 13: That the complaining parent had consented or subsequently acquiesced in the removal/retention of the child
Article 13: That there is a grave risk that the child’s return would expose him/her to physical or psychological harm, or otherwise place the child in an intolerable situation
Article 13: That the child is old enough and of sufficient degree of maturity to object to being returned to the country of the complaining party, and it would be appropriate for the court to respect the child’s wishes
Article 20: That the child’s return would subject him/her to violations of human rights and fundamental freedoms

It is essential that both parties in this scenario take urgent specialist advice.

Visa considerations, separation agreements and judicial separation

Expat wives can be particularly vulnerable if a divorce takes place while they are living overseas.

1. A dependant spouse’s immigration status is commonly based on their marriage to the holder of the employment visa.

2. When the marriage ends, the children’s dependant status typically remains in place, but the wife’s status expires.

3. If a solution cannot be found, the wife might be forced to leave the country which she has called home for many years.

4. If the husband does not give consent for her to take the children back to the UK, then she must make a relocation application in the local court.

5. If the relocation case is not successful – she could be forced to return without the children.

The couple can choose to delay the divorce process indefinitely, but there always comes a point where the separating couple need to definitively divide their assets and define maintenance obligations once and for all (doing so benefits both parties).

In the Singapore context, the common solutions are:

a. The couple decide to return to the UK together.
b. The husband gives his consent for the children to return to the UK.
c. The wife secures her own independent Employment pass. The couple can then proceed with the divorce and tackle financial matters definitively.
d. In Singapore, the wife can obtain a Long-Term Visit pass which is based on their children obtaining a Student pass at an approved educational institution.
e. The couple can stay legally married to preserve the dependant pass. Instead of divorcing immediately, they enter into a Separation agreement which records their agreement. However, there is no court process to fall back on to set an obligatory timetable, force financial disclosure, or determine disagreements. Also, a separation agreement cannot be 100% binding, so either party could challenge the agreement at a later date.

I propose a further possible solution. It is a step up from a separation agreement in terms of certainty: the couple stay legally married but either party initiates Judicial separation proceedings.

This might be a viable way to proceed where the couple agree to work together to keep the wife in Singapore (or other expat location), but they both want greater certainty in respect of dividing assets and defining maintenance obligations.

Binding financial orders can be made as part of Judicial separation proceedings and the couple can access the courts to resolve financial matters if they cannot reach an agreement.

There is however a technical problem in respect of implementation of pension sharing orders: this may or may not be a problem depending on whether there are sufficient other assets to offset pension claims.

Conclusion

Whether we are representing the wife or the husband in a divorce, almost everyone’s objectives at the outset are the same:

  • They want to get through the process as efficiently as possible and minimise legal fees
  • They want an outcome that is balanced, fair and reasonable
  • They want to protect their children’s emotional well-being

A calm resolution can be achieved if the following approach is taken:

  1. Take protective steps to pre-emptively protect your legal position if required, then pause. Replenish yourself before embarking on a process that could prove to be irreversible. Poor decisions are made when we are drowning in stress and anxiety and anger. Give yourself sufficient time to take advice, think deeply and carefully, and make well informed decisions with a clear mind.
  2. Attend individual and couples counselling before making any definitive decisions. You need to know that you did everything in your power to save the relationship. If the relationship cannot be saved, attend individual and couples counselling anyway so that you can work together to manage the fallout of the divorce and agree how the children will be protected.
  3. Maintain your physical and mental health at all times. Build resilience and find healthy coping mechanisms that work for you so that you can stay on track if the process becomes bumpy.
  4. Educate yourself about the divorce process. The greater your understanding, the less you need to pay your lawyer to repeat information that is already in the public domain.
  5. Ensure that you are using a lawyer whose philosophy is to approach matters objectively and constructively. Then listen to and act on their advice. It is counter-productive (and expensive) to treat your lawyer as a hired mercenary to attack your spouse. Your lawyer can and will be assertive on your behalf when required, but unfocused aggression achieves little except to entrench positions and increase costs, which makes settlement close to impossible.
  6. Enlist the help of a mediator where appropriate. A mediator offers a safe, neutral environment for the parties to find agreement with minimal input from the lawyers. However, you do still need to retain legal advice in the background to give advice on specific points of law and the theoretical range of realistic outcomes.
  7. Be your own paralegal to keep legal fees contained. Prepare a careful chronology of the marriage and prepare comprehensive and accurate financial information as directed by your lawyer. Learn to organise your digital documents into neatly labelled pdfs and sign up to dropbox so that you can share the information easily with your lawyers.
  8. Provide full and frank disclosure. The court process has robust mechanisms to force the parties to provide disclosure anyway. Failing to engage with the disclosure process is a futile act that achieves little but to drive up costs, undermine trust, and delay settlement. However, do take legal advice on how to present your disclosure and in relation to which arguments have relevance to the financial matters. For example, a debate about the treatment of inherited funds is a viable point to make, the general unpleasant behaviour of the other party is not.
  9. Negotiate in good faith. Make realistic proposals which meet the needs of both parties and which are pitched sensibly within the relevant framework of law. Positional bargaining is a waste of time and money. Compromise and search for win-win solutions.
  10. If there is a legitimate difference of opinion on a particular matter between the parties and their lawyers, then work collaboratively to choose the most cost-effective appropriate method to resolve the disagreement. Going to court is just one of a number of choices.
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