Can I get a divorce in England or Wales?

You may have read in the news of many wealthy international divorces occurring in England, such as the divorce of the Dubai ruler, Sheikh Mohammed bin Rashid Al Maktoum, believed to be one of the largest in the history of UK divorces.  The popularity of England and Wales for international divorce is due to the many benefits it can afford in comparison to other countries.  Judges tend to have much greater discretion in England and Wales, and our starting point of equality is not always matched in other jurisdictions.

If you did not marry in England or Wales, or if you or your spouse do not currently live in England or Wales, you may be wondering if you would be able to obtain a divorce here.

‘To be allowed to divorce in England or Wales, you must meet certain criteria and the courts must have what is known as ‘jurisdiction’ to act.  This simply means that the courts have the power to determine your divorce,’ says Kirsty Tighe, Head of the Family team.  ‘If you meet the legal requirements then you can proceed to apply for a divorce in England or Wales, even if you do not presently reside here or did not marry here.’

It is important to note that some people may have an option of divorcing in more than one country.  If so, then taking early legal advice can help you determine which will be the best option for your circumstances.

What are the legal requirements?

There are a number of criteria that you must meet to be permitted a divorce in England and Wales, namely:

1. You have been married for at least one year. If you try to divorce before one year of marriage, the courts will refuse your application.
2. Your marriage has broken down irretrievably. This means that you are satisfied there are no prospects of a reconciliation. You may wish to attempt   couples counselling before coming to this decision.  Most people will be required to have at least attempted mediation before they are allowed to obtain their divorce.  There are some exceptions to this rule, and one of our lawyers can advise you in relation to same.
3. Your marriage is legally recognised in England and Wales. It does not matter where in the world you married, provided your marriage is recognised as legitimate in England and Wales.  This can sometimes be a complex question and if you are in doubt, it is crucial that you obtain expert legal advice, as the implications can be wide reaching if your marriage is deemed to be unrecognised in the UK.  Generally speaking, to be recognised the marriage must have been legal in the country in which it took place, both spouses must have had capacity to enter the marriage, and any previous marriages must have been terminated properly prior to the marriage.  This can impact some religious ceremonies that occur, typically within the UK.  For example, if you are Muslim and get married under Sharia Law within the UK, it will not be legally recognised in England and Wales.

It is worth noting that if your marriage certificate is not in English, a certified translation will be needed for the courts.

4. Jurisdiction is established. There are five ways in which this can be proven, namely:

• both spouses are habitually resident in England or Wales;
• your spouse is habitually resident in England or Wales;
• both spouses are domiciled in England or Wales;
• you are habitually resident in England or Wales and have lived here for at least a year; or
• you are domiciled and habitually resident in England or Wales and have lived here for at least six months.

What if I have lived abroad?

If you have lived abroad, or are currently living abroad, then you will need to be able to establish jurisdiction in England or Wales to apply for a divorce here.  If your spouse resides in England or Wales then the jurisdiction test will be met.  If neither you or your spouse reside in England or Wales then you must establish that you are both domiciled there.

‘Domicile’ is not legally defined in statute but it is taken to mean the country where you have your closest ties, such as where your permanent home is, your legal affairs and tax affairs.  If you are unsure, then it is important to seek legal advice.

What if my spouse wishes to apply for divorce in another country?

For couples with an international lifestyle, you may be entitled to issue divorce proceedings in more than one country.

If your spouse beats you to it and applies for a divorce first in another country, then you will lose your opportunity to issue in England or Wales.

This could be costly for you, so it is important not to delay.

If you have a choice of countries within which you can issue your divorce then it is critical to obtain early advice from an experienced family lawyer.

How we can help

One of our family law experts will be able to advise you on the options available to you and what type of court orders you could seek.  We can weigh up the routes available to you, considering not only the financial impact but also the court orders available in relation to where any children of the family will live, and how orders could be enforced in other countries.

If you are contemplating divorce, or just want some preliminary advice on your options and if you are entitled to issue proceedings in England or Wales, please contact Kirsty in the Family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Being separated from your child can be heart-wrenching, and yet some parents have to overcome some significant hurdles to be able to spend time with their children in a way that many families take for granted.

Direct access is the ultimate goal, and in this article we will focus on the different types of direct access, and what steps can be taken to finalise any agreement or seek a way forward if agreement cannot be reached.

This follows on from our articles which looked at the welfare considerations when thinking how to meet your child’s needs in agreeing access arrangements, and the reasons why indirect access may occur and the different forms it can take.

‘Direct access means any contact a parent has with a child that is face to face.  It can be in many different formats and can include restrictions if necessary to meet the child’s welfare needs,’ says Kirsty Tighe, Family Law Consultant at Kidd & Spoor.

Why have direct access?

Before we consider the different types of direct access arrangements, we will take a quick look at the reasons to have direct access.

Direct access is often what parents prefer to have with their children, and is normally what will be in the best interests of a child.  It is the basis of a natural relationship where a parent and child see each other face to face and spend time together.  If the access is of a good quality, it allows attachment to build between a child and parent and will promote the child’s wellbeing.

The quality of contact is not about what activities are undertaken, but more about the bond and connection between the parent and child.  For example, if there is a young toddler, a higher quality contact may involve the parent engaging with the child by interacting at their level and getting onto the floor to play games.  A lower quality contact may involve the parent being present in the same room as a child, but not engaging with a child for example by being on their phone.

If the time together is not high quality, it is still likely to be beneficial to a child provided there are no safeguarding concerns that would place the child at risk.

What type of direct access?

The different types of direct access provide different levels of safeguarding for the child:

• Supervised contact – if you have been having indirect access, then sometimes the first step to direct access will be supervised contact. This is usually only if there remains some concerns that the child will be at risk.  This can be supervised by a friend or family, or sometimes it may need to be supervised by social services.  This is typically only a temporary measure to monitor contact before it can move to a more natural arrangement.
• Contact centre – this is a centre staffed by volunteers or paid staff with childcare experience that is open for a few hours each week and can accommodate a number of different children and parents at the same time. It is not supervised contact, but does occur in a safe environment.  It can also be used as a neutral venue for contact handover if there have been past issues between parents.  Contact centres are not usually a long-term solution, and typically one is only used as a step towards a more natural contact.
• Contact in the community – this can be at a soft play, park, swimming pool or cinema, for example. It is deemed to be a neutral venue for contact, and allows a relationship to build between a parent and child while the child participates in a fun activity.  This often occurs where one parent has raised issues about the home environment of the other parent, for example, concerns about other people that live in the home, or that the child may be exposed to inappropriate material in the home such as drugs.
• Contact in the home – this is typically the most natural type of direct access and occurs in the parent’s own home. A neutral handover location can be agreed, or the parents can agree to transport the child between their homes directly.  This type of contact can be for a number of hours, or it can be for an overnight stay.  If it is to include overnight stays then it is important that the child has an appropriate place to sleep.
• Holidays – direct contact can also include taking the child away on holiday, which (subject to any court orders) could be abroad or within the UK. It is wise to provide the other parents with details of where you will be staying and how you will be travelling.  It is also sensible if the child is away for a longer period of time than usual, that both parents agree how and when the absent parent will be contacted and if they will, for example, be able to have video calls during the holiday.

Restrictions

If there are particular concerns, restrictions can be put in place – such as restricting the venue direct access can occur in, or restricting other people who can be present.

How we can help

If you need advice on direct access arrangements for your children please contact Kirsty in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

 

 

Can I amend our divorce settlement due to a chronic health condition?

During a divorce or dissolution of a civil partnership, there are a number of factors that must be taken into account when dividing financial assets. These factors include any mental or physical disability of either spouse or civil partner and what their current and future financial needs will be. This provides scope to make a fair and just settlement for anyone that maybe suffering a chronic health condition – a long term illness which is likely to significantly impact a person’s function, earning capacity and future financial needs.

What happens if you had agreed a settlement and have been subsequently diagnosed with a chronic health condition which affects your earning capacity?

‘When it comes to divorce or dissolution settlements, a chronic health condition can have a significant impact on the financial division of assets. If your diagnosis was after a settlement has already been reached, then it may be possible to have your settlement reopened to ensure that your financial needs are met,’ says Kirsty Tighe, a Consultant in the family team with Kidd & Spoor. ‘This is not a simple process and it will require urgent and early legal intervention if it is to have a chance of success.’

Can divorce settlements be reopened?

In most circumstances, divorce settlements are binding as a full and final settlement which cannot be reopened. It requires very exceptional circumstances for the courts to contemplate reopening a settlement, but under certain circumstances it will be possible.

These include:

• If there was significant fraud or misrepresentation by one of the partners, such that the other has been deceived during the settlement process. For example, if one partner has provided fraudulent financial information.
• If there was a material non-disclosure, where one partner failed to share important information which would reasonably have been expected to have impacted the settlement, such as owning significant assets.
• An unforeseen change in circumstance, sometimes known as a ‘Barder’ event. This is the category that could include an unforeseen diagnosis of a chronic health condition which will significantly impact one partner’s financial position.

What is a Barder event?

A Barder event is named after the tragic case of Barder v Barder. A consent order had been made stipulating that the husband would transfer his interest in the family home to his wife, intending that the wife and two children of the family would reside there. Just five weeks later, the wife killed her two children before committing suicide. Her estate was left to her mother in her will. The husband, feeling this was unfair, tried to get the consent order varied by way of an appeal.

The House of Lords agreed to the husband’s appeal, and significantly changed the existing consent order to benefit the husband.

The judge set out the four conditions for when a ‘Barder’ event can occur, allowing a divorce settlement to be reopened:

• that the new event invalidated the basis or fundamental assumptions upon which the original order or settlement was made;
• that the new event had occurred within a short period of time after the settlement was made (while no time is stipulated, this is likely to be a number of weeks or a few months at most);
• the application should be brought back to court promptly; and
  that third parties who have acquired, in good faith for valuable consideration, interests in property which may be impacted should not be prejudiced.

What changes could I obtain?

If your circumstances meet these strict criteria then you can have your settlement reconsidered in light of your new health condition.

It will be necessary for medical reports to be obtained to show when you were diagnosed; the likely future prognosis for you; and how this will impact your functioning and earning capacity. Consideration will also need to be given to any requirements for care assistance both now and in the future, and any adaptations that will be needed to your home.

How we can help

If you are in the unfortunate situation of having had a life changing diagnosis of chronic illness after your divorce or dissolution settlement, while your health and wellbeing are most likely your primary concern, it is vital that you obtain early legal advice on your options. Delay in acting can be reason alone for your claim to fail.

Reopening a settlement is not something that a court will do lightly. One of our family law experts will be able to advise you on the options available to you, and work to collate the strongest case possible to put forward for you.

Please contact Kirsty Tighe in the family law team on 0191 297 0011 or email kt@kiddspoorlaw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

With interest rates and the cost-of-living crisis in the headlines on a daily basis, mortgage affordability is a key concern for many homeowners, not least for couples who are separating and wondering how this will affect their mortgage arrangements.

Most divorcing couples will have a mortgage on their family home, and the family home is likely to be their largest asset.  The mortgage may be in joint names, or it could be in one person’s sole name. Either way, the house will be considered a matrimonial asset if it is the family home, and it will need to be dealt with as part of the financial settlement.

Whether a mortgage is affected by divorce or the dissolution of a civil partnership, and the extent to which it is affected, will depend on the terms of the financial settlement or any court order.

‘Most couples prefer to negotiate a clean financial break so that they have no ongoing financial ties, but if you have a joint mortgage then you and your partner will be both jointly and severally liable for that mortgage until it is either repaid or transferred into one person’s sole name,’ says Kirsty Tighe, Head of the Family Law team with Kidd and Spoor Solicitors Limited in Whitley Bay.

There are typically three ways in which a former matrimonial home will be dealt with when a marriage or civil partnership ends, each with respective arrangements for the mortgage.  Some couples may also need to take additional steps if their home is in a position of negative equity.

The three common routes are:

• Selling the former matrimonial home – If you decide to sell your home as part of your divorce, then typically an estate agent will be jointly appointed by you both to achieve the best sale price. Once the sale is agreed, the solicitor acting for you will obtain a redemption statement from the mortgage company to find out how much money is left to pay.  Once the sale completes, the solicitor will redeem the mortgage in full so that neither of you have any further liability or obligation to the mortgage company.

• If you keep the house – The first step will be to get the property valued, ideally by a qualified professional jointly appointed by you both to avoid any argument over the value. If you are the sole owner of the house and the mortgage is already in your sole name, you do not need to take any action in respect of it.  Your divorce lawyer will be able to include terms in your settlement agreement to ensure that your former partner is foregoing any beneficial interest they have in your house.

If your spouse or civil partner is the sole owner of the house, you will need to have the house transferred into your name.  If you have to pay them a lump sum as part of your settlement, or if you have agreed to repay their mortgage on the house, then you may need to take out a mortgage in your sole name.  Independent financial advice will be needed on the right option for you.

If the mortgage is in joint names, then you will either need to repay the mortgage and take out a new mortgage in your sole name, or, you will have to seek the agreement of your current mortgage company to release your partner from the mortgage and to transfer it into your sole name.

• If your spouse or civil partner keeps the house – Much like the above situation, the first step will be to obtain a valuation on the property. If you are not an owner, then you do not need to do anything, and your settlement terms will confirm that you are agreeing to forego any beneficial interest you have in the house.

If the house is in your sole name, then you must make arrangements to redeem your mortgage at or before it is transferred to your former partner.  Your solicitor can arrange to do this as part of the transfer process.

If the mortgage is in joint names, then even if you do not reside in the house, you will still be jointly and severally liable for it.  Until you are released from this liability, you may find it difficult to obtain a mortgage for any new house you wish to purchase.  Therefore, when the house is being transferred to your former partner, your solicitor will make sure that you are released from all future obligations to the mortgage company, either by obtaining the mortgage company’s consent to release you, or, by making sure the mortgage has been redeemed.

What if the house is in negative equity?

Negative equity means that there is more money owed to the mortgage provider than the amount that the house has been valued at.  If your house is in negative equity, then it is unlikely the mortgage company will release either of you from being responsible for the payment of the mortgage.

This means, if you sell the house, you or your partner will have to also raise a lump sum to be able to pay back the mortgage at the time of sale.

If either of you plan on keeping the house, then you could try and raise a lump sum to reduce the mortgage.  This may provide more options to remortgage into one person’s sole name.  Independent financial advice should be obtained to find the best mortgage options.

Alternatively, if neither of you are able to raise a lump sum to reduce the mortgage then an agreement may be entered to allow one of you to remain in the house and indemnify the other in respect of the mortgage payments.  Such agreement would also normally provide for the person that is remaining in the house to be entitled to any future equity.

The options available in respect of negative equity properties are more limited, but we have a wealth of experience in reaching creative solutions to allow our clients the freedom to move on financially following divorce.

How we can help

One of our family law experts will be able to advise you on the options available to you in respect of your mortgage on divorce.  We can weigh up the routes available to you, and help you obtain the right legal and financial advice to best meet your future needs.

Please contact Kirsty Tighe in the family law team on 0191 297 0011 or email wb@kiddspoorlaw.co.uk for further advice.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.