At expatriates.co.uk we understand the difficulties that can arise with expats family relationships and know that when matters become serious having access to the best legal advice is essential. Our legal partner has a dedicated child care department which specialises in the areas discussed in this guide. Their team will listen to you and give you constructive advice on how to handle your problem.
Family disputes will be equally complex for both UK residents and UK expat families and we hope the information contained herein will help you towards finding a resolution to any problem you may have.
Divorce proceedings– UK expats and UK residents
Under UK law, in order to obtain a divorce it is necessary to show the Court that your marriage has irretrievably broken down and this usually means relying on one of the following factors and we have indicated the typical costs for divorce.
- Adultery – this reason is often used where quick divorces are required.
- Unreasonable behaviour – as above, this reason is also used where quick divorces are required
- Desertion – to qualify you need to show that two years have passed.
- Separation – requires two years separation with consent or five years separation without consent.
- Costs – the costs shown here are approximate and may vary.
- UK court fees – When you petition the court there will be a fee of approx. £550.
- Solicitors fees – these will vary depending on the firm you use but a general guide for an uncomplicated divorce would be in the region of £525 plus VAT at 20 percent.
- Documents – You will need to produce your marriage certificate or a certified copy.
Provided the divorce is uncontested, it can take approximately 4 to 6 months for obtain your Decree Absolute.
Financial considerations of divorce– UK expats and UK residents
Usually assets will be divided equally between the parties unless circumstances dictate otherwise. Both parties need to be open about their financial situation and be able to support that with documentary evidence. Some samples of acceptable evidence are:
- P60 for last financial year – This will show your last year earnings as declared to HMRC. Note that some people will have more than one P60 if they have multiple employments.
- Last three months wage slips – this is to demonstrate nothing has recently changed.
- Mortgage redemption statement – if you own a property then this document will define the debt owing to the mortgage lender. This will applies for all mortgages held whether expat mortgages, residential mortgages or BTL mortgages.
- Endowments and insurance policies – you should ask the insurer to provide the current surrender value of any policies that are held.
- UK pensions – your pension provider should provide you with a cash equivalent transfer value (CETV) for any pension you hold.
- Other debts – you will need documentary evidence of any outstanding debts or loans which will include bridging loans, second charge secured loans and any personal loans such as bank loans or credit card loans.
- Bank statements – for all bank accounts held you will need statements covering the last twelve months.
- Savings and investments – You will need to show details of any savings or investments you hold such as:
- Cash – whether held in a bank or within a cash ISA.
- Bonds – this includes bank fixed rate bonds, Government gilts, corporate bonds held on companies and premium bonds.
- Stocks and shares – these include individual company shares, unit trusts, investment trusts and managed funds that are held separately or within a stocks and shares ISA.
- Other savings and investments– this can be any valuable asset and could include precious metals, antiques, boats and classic cars etc.
Whether or not maintenance is deemed payable by one party to the other, any court decision will be based on the individual circumstances of the parties. Here are some of the things to consider.
- Making a clean break – the court has a duty to consider a clean break in every case. A clean break is an order which prevents either party returning in the future to make a claim against the other party in relation to their income, assets, or pension entitlement.
- UK pensions – the court will decide how any pensions should be divided. This area of law is very complicated and the court may deal with pensions in the following way:
- Pension sharing – the court could split a pension between both parties if it deemed this to be appropriate.
- Attachment – this is rarely applied but is a method whereby one party can claim a percentage of the other party’s pension upon their retirement.
- Offsetting – often used for smaller pension funds where it can be agreed one party will receive a larger share of the capital assets to compensate them for the difference in their respective pension funds.
Cohabitation disputes through divorce
When dealing with cohabitation disputes there are usually a number of options depending on individual personal circumstances. Some if the options available include:
- An application under married womens property act 1882 – this can be used where the couple were engaged and the engagement was terminated. This can enable a party to make a claim in relation to a jointly owned home including any household contents and of course the engagement ring.
- An application under the trust of land and appointment of trustees act 1996 – This can be used to establish an individual’s interest in a property or to order the property to be sold. Appropriate where the property is owned by one party but where the other party made contributions towards the initial deposit or made contributions to the mortgage payments.
- An application under schedule 1 of the children act 1989 – this allows property to be transferred from either the joint names or sole name of one of the parties into the other sole name of the other party for the benefit of the child of the family. This would enable the parent with custody to provide a home for the child until the child is 18 or leaves full time education.
The law in relation to cohabitees is very complicated and if you require assistance please complete the enquiry form to arrange to speak with a solicitor.
Domestic abuse is serious and is more common than you might think. If you suffer from domestic abuse complete the enquiry form and one of our solicitors will do their utmost to deal with your case as a matter of urgency to ensure your safety and that of your children. Domestic abuse includes personal violence, threats, intimidation and harassment.
- Legal Aid – this is still available for victims of domestic abuse but is depending on your financial circumstances.
- Police intervention – If you are a victim then you must contact the police who may arrest your partner if they have committed a criminal offence.
- Non-molestation order – This is an order available from the civil court which will protect you from conduct which could be construed as harassment or pestering. If this order is breached the other party will have committed a criminal offence.
- Occupation order – This order requires the abusive partner to leave the family home and not return to the property. If the order is breached the other party would be brought before the court and could be sent to prison.
The Civil Partnership Act came into force on 5 December 2005 and gave same-sex couples the opportunity to register their relationship legally and enjoy the same rights and responsibilities as married partners in the following areas:
- UK Tax
- Immigration and Nationality
- Pension benefits
- A duty to provide reasonable maintenance for your civil partner and any children of the family
- Ability to apply for parental responsibility for your civil partners child
- Access to fatal accidents compensation
- Protection from domestic violence
If you are contemplating entering into a civil partnership you may wish to consider having a pre-civil partnership agreement. If you do not choose to do this your assets will in the event of dissolution be dealt with according to UK Law which may not be favourable to you.
- Setting up a pre-civil partnership agreement – the process of entering into a pre-civil partnership agreement may be dealt with through mediation. A mediator is impartial and can help couples reach an agreement but they cannot give legal advice. Once an agreement is reached your solicitor can draw it up legally. Alternatively you can each appoint your own independent lawyer to advise you and negotiate on your behalf from the outset. The cost depends on the kind of contract you wish to enter into and what kind of provisions it makes.
- Dissolving a civil partnership – registering as civil partners is a serious commitment and the partnership can only end if it is dissolved, annulled or if one of you dies. An application to the court for dissolution can only be made after the parties have been in the civil partnership for one year. The person applying for the partnership to be dissolved will have to provide evidence that the civil partnership has broken down irretrievably in the same way as for conventionally married couples:
- Unreasonable behaviour
- Separation for two years where the other civil partner gives their consent
- Separation for five years
- That the other civil partner has deserted the applicant for two years
If the Court is satisfied on the evidence that the civil partnership has broken down irretrievably, a dissolution order will be granted.
- Issues Relating to Children – from the 30 December 2005 same-sex couples were able to adopt a child together and in addition a non-biological civil partner can apply for parental responsibility in respect of their civil partners child.
Pre –nuptial agreements
A Pre-Nuptial Agreement is a document that sets out to restrict the relief available to a spouse on the breakdown of their marriage but they are currently unenforceable in the English Courts. However you may still choose to enter into a pre-nuptial agreement as it may carry some weight with the court in the event of a future separation.
If you are unable to reach an agreement regarding the arrangements for your children with your ex-partner the court can make an order setting out clearly when you and your ex-partner can spend time with your children and decide where your children live. Things to consider:
- A child Arrangement order – made to determine who your children should live with. Considerations will be:
- Standard of accommodation to be provided.
- Childrens daily routines and schooling.
- How will they be cared for if you are working.
- The preference of the child or children.
- Your plan for the future.
- Parental Responsibility – the following individuals will have parental responsibility:
- A mother
- A biological married father
- A father named on the birth certificate if the child was born after 1 December 2003
There are also circumstances under which a step-parent can acquire parental responsibility. Any person with parental responsibility for a child has a right regarding all the major issues in a child’s life. Such matters include religious upbringing, medical treatment and education.
- Child Abduction – it is an offence for any parent to take a child under the age of 18 outwith England and Wales without obtaining the consent of all other persons with parental responsibility. If a child is removed without the required consent an offence has been committed.
- Mediation – if matters cannot be agreed you may wish to consider attending mediation which is compulsory if you wish to make an application to the court.
Grandparents play a vital role in family life usually providing free childcare and a host of other benefits and their role can be vital in many ways. However grandparents can be in a very difficult position if there are disputes about children after separation and divorce.
The grandparents association estimates that around one million UK grandparents are denied contact with their grandchildren and the sad truth is that grandparents do not have an automatic legal right to spend time with their grandchildren. However as grandparents play an important role it is very rare that the court would refuse a grandparent the opportunity of spending time with their grandchildren unless there is evidence of abuse or violence.
Care proceedings and social services
If Social Services become involved with your children it will be an extremely stressful and worrying time for a parent. If social workers are worried about a child’s welfare they are under a duty to investigate those concerns. If this happens to you it is vital to get expert legal advice as early as possible to help you understand the issues and procedures and how best to deal with the situation.
If the local authority is worried about your child’s welfare the first step they should take is to write to you with a letter explaining why they think your child is not being looked after properly. If you are a parent of a child who has received one of these letters you will automatically qualify for Legal Aid regardless of your income and it is important that you work with your local authority to deal with their concerns
You will be invited to a meeting to talk about the situation with the social worker, the local authority solicitor and your solicitor. At the meeting you will talk about how the local authority can support you to change the way you look after your child. If you agree to make some changes these will be written down in a formal agreement that you and the local authority have to follow. You must keep to any agreement you make at the pre-proceedings meeting and similarly the local authority should keep to any agreements that they make. You will probably be asked to go to review meetings to check you are keeping to the agreement.
If you do not keep to the agreement or there are still serious or new concerns, the local authority will apply to a court to start care proceedings. You will have to go to the family court, possibly several times until the court makes its decision about your child’s future. Sometimes this will result in the local authority taking action and trying to remove children from the care of their parents. If so, the children could be placed in foster care or even placed for adoption.
If you are a parent involved in care proceedings you will be entitled to Legal Aid and this may also be available to other family members. In certain circumstances where family members are not entitled to Legal Aid the local authority may be willing to fund your legal advice.