The breakdown of a marriage can have dire consequences. This is made worse when a marriage breaks down whilst living abroad. The severity of the potential consequences highlight the need for expatriates to plan their move abroad carefully.
One in ten British people live abroad. That’s a lot of expatriates, and it’s not just retirees looking for sunny climes. Many British professionals are being lured to expat hubs such as those in the Middle East and Far East by the promise of career progression and tax-free lifestyles.
When posted abroad, a professional worker will usually receive plenty of support from their employer with practical issues such as visas, housing and schooling. In the excitement of the move, few expats will give any consideration to the potential fallout of a relationship breakdown. Yet, when children are involved, the breakdown of a marriage abroad can have dire consequences.
A common misconception is that a parent cannot abduct their own child; this in incorrect.
The removal of a child from their place of habitual residence by a parent can constitute child abduction. By moving abroad as an expatriate, a child can acquire habitual residence in a new country immediately upon arrival. Habitual residence is a question of fact. It depends on the integration of the child in to life in their new home. It comes as a surprise to expats that their children can acquire habitual residence in a country so quickly, even if they did not intend to remain abroad permanently.
Consequently, if a marriage breaks down while a couple are living abroad, a parent cannot return to the UK with the children if their spouse insists that the children remain there. Parents wishing to return home with their children without their spouse’s consent may gamble on whether to seek permission from the courts in their expat home to relocate, or leave without permission and face the consequences.
Left-behind parents from countries that are signatories to the Hague Convention on Civil International Aspects of Child Abduction 1980 (the 1980 Hague Convention) can make an application under that convention seeking a return of the abducted child back to the child’s place of habitual residence. Left-behind parents living in countries that are not signatory to the 1980 Hague Convention can often secure the return of British abducted children through wardship proceedings through the English courts.
It is understandable therefore that some parents find themselves ‘stuck’ abroad, not wanting to leave without their children, and not being allowed to take them. Indeed, Globalarrk, the charity specialising in supporting stuck parents around the world, says that 98 per cent of individuals who contact them describe themselves as ‘primary carer mothers’.
The situation set out above is exacerbated when the primary carer of the children is unable to remain in the expatriate home following divorce due to visa issues. Parents have found themselves forced to return to their home country without their children.
Recognising this problem, some expat hubs have adapted their laws and processes to ensure families can stay together. For example, in Dubai, the cancelling of a spouse visa following divorce used to mean they had 30 days to leave the country. The UAE Cabinet has changed the law to allow divorcees one year’s residence in Dubai without the need for a sponsor. Case law in Singapore also seems to be moving in this direction.
Jurisdiction governing children disputes
Another area which is not often considered before a relocation, is what law governs a marriage break down and any subsequent children disputes. While a divorce itself can be conducted under English law as a British expat, jurisdiction for children matters is not as straightforward. Generally speaking, the English courts will not accept an application concerning children unless the children reside or are present in England, or a divorce has taken place in England and both parents agree to England having jurisdiction for children matters.
If jurisdiction is established, the court in England can make orders concerning arrangements for the children. Such applications are for a ‘child arrangements order’. The court no longer refers to ‘residence, contact or custody’.
There is difficulty with enforcement of English orders in some countries, where the children are living outside of the jurisdiction. For this reason children matters for expats in expat hubs, are usually dealt with by the courts within the country they are habitually resident.
The local laws within these countries, in particular the UAE, are very different to those in England and will automatically be applied to you as expats should children proceedings be initiated in that country. An example of this, is that in the UAE a mother may cease to be the custodian of the children if she remarries. This is one of many potential repercussions that should be considered prior to a move abroad.
The above is just a snapshot of some of the potentially consequences of a relationship break down abroad. It highlights the need for expatriates to plan their move carefully and take legal advice to consider whether a date for repatriation should be agreed before relocating. It is also perhaps time for businesses that regularly send employees overseas to educate expats of the potential problems that can occur if a relationship does break down when a family is posted abroad.
Written by Alexandra Tribe Solicitor, at Expatriate Law.