Family Law 2021

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Family Law 2021

A practical cross-border insight into family law

Fourth Edition

Featuring contributions from:

Arbáizar Abogados GMW lawyers Payne Hicks Beach Ariff Rozhan & Co Grenadier, Duffett, Levi, Rubin & Winkler, PC Quinn Legal Boulby Weinberg LLP Haraguchi International Law Office Rechtsanwaltskanzlei Dr. Alfred Kriegler Brick, Jones, McBrien & Hickey LLP Heyeur Jessop S.E.N.C.R.L. The Law Office of Stacy D. Heard, PLLC Caldwell & Robinson International Academy of Family Lawyers (IAFL) Vardags Chia Wong Chambers LLC Kingsley Napley LLP Wakefield Quin Limited Cohen Rabin Stine Schumann LLP MEYER-KÖRING Withers Diane Sussman’s Law Office OA Legal ISBN 978-1-83918-064-4 ISSN 2398-5615

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59 Tanner Street London SE1 3PL United Kingdom Family Law 2021 +44 207 367 0720 [email protected] www.iclg.com Fourth Edition

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Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents

Expert Chapters

Brexit and Family Law 1 Stacey Nevin, Kingsley Napley LLP

The Practice of International Family Law 6 Rachael Kelsey & Marlene Eskind Moses, International Academy of Family Lawyers (IAFL)

Surrogacy: Where Are We Now? 13 Sarah Williams, Payne Hicks Beach

Q&A Chapters

Austria Japan 19 Rechtsanwaltskanzlei Dr. Alfred Kriegler: 106 Haraguchi International Law Office: Dr. Alfred R. Kriegler Kaoru Haraguchi

Bermuda 26 Malaysia Wakefield Quin Limited: Cristen Suess 115 Ariff Rozhan & Co: Ezane Chong

Canada – Ontario 34 Netherlands Boulby Weinberg LLP: Sarah Boulby & 123 GMW lawyers: Marjet Groenleer, Thijs Sarneel & Oren Weinberg Dylan Bertsch Canada – Québec 40 Singapore Heyeur Jessop S.E.N.C.R.L.: Sonia Heyeur & 131 Shannon Jessop Chia Wong Chambers LLC: Wong Kai Yun

Spain England & Wales 140 47 Kingsley Napley LLP: Charlotte Bradley & Arbáizar Abogados: Amparo Arbáizar Stacey Nevin Switzerland France 149 OA Legal: Nicolas Mossaz & Sophia Lisa Ouadouri 57 Diane Sussman’s Law Office: Diane Sussman USA – Massachusetts Germany 157 67 Brick, Jones, McBrien & Hickey LLP: MEYER-KÖRING: Marie von Maydell Wendy O. Hickey, Maureen McBrien, Alexander D. Jones & James L. Brick Hong Kong 73 Withers: Sharon Ser & Philippa Hewitt USA – New York 165 Ireland Cohen Rabin Stine Schumann LLP: 83 Caldwell & Robinson: Karen O’Leary & Gretchen Beall Schumann Geraldine Keehan USA – Virginia 172 Isle of Man Grenadier, Duffett, Levi, Rubin & Winkler, PC: 92 Quinn Legal: James Quinn & Amy Crellin Ilona E. Grenadier & Carolyn Abbate

Italy USA – Washington 99 Vardags: Maria Fiorito 179 The Law Office of Stacy D. Heard, PLLC: Stacy D. Heard Welcome

Preface

Dear Reader, I am honoured to be the contributing editor to the 2021, fourth edition of ICLG – Family Law, and thank all the contributors for setting out so succinctly family law in their respective jurisdictions, particularly at the current time where the pandemic has been challenging for all of us, including in the practice of family law. Each chapter provides an essential summary of the main areas of family law as well as being a reminder of the need for individuals to take advice in any country where they have a significant connection. Specialist family lawyers now have a much improved understanding of international conventions, regulations and other legislation affecting the practice of family law, and the family law organisation, the International Academy of Family Lawyers, continues to do a huge amount to raise knowledge and assist international best practice. I thank the Academy for their chapter, which provides essential reading. With evolving family law around the world, family practitioners must continue to strive to improve their understanding of international family law; this is essential if they are to properly meet the needs of their clients and their families and this publication will only assist in that endeavour.

Charlotte Bradley Kingsley Napley LLP Welcome Chapter 1 1

Brexit and Family Law

Kingsley Napley LLP Stacey Nevin

Introduction Whilst the lis pendens (first past the post) rule is controversial, there is at least a uniform criterion for jurisdiction across all The result of the Brexit referendum was announced on 24 June Member States, and we know what should happen in the event 2016. One thousand three hundred and seventeen days, three two competing jurisdictions are seized by both parties. extensions and three UK Prime Ministers later, the United At the end of the transitional period, absent an agreement Kingdom formally left the European Union on 30 January 2020, otherwise, Brussels IIa will cease to apply to the United Kingdom. when the UK’s Withdrawal Agreement was finally ratified. In readiness for Brexit, the English government released a draft Fortunately for practitioners, the Withdrawal Agreement gave Statutory Instrument (“The Jurisdiction and Judgments (Family) a brief reprieve, giving the UK and the remaining EU Members (Amendment etc.) (EU Exit) Regulations 2019”) (referred to as States (“the EU-27”) a further 11 months to negotiate a the “Brexit SI” throughout this chapter), which contains extensive complete deal. At the time of writing, the United Kingdom is in transitional arrangements. One amendment has been made to a “transitional period” (previously referred to as the implemen- that already, which is set out in “The Jurisdiction and Judgments tation period). Under the terms of the Withdrawal Agreement, (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 current EU laws and regulations will continue to apply to the No. 836” and is discussed further below. The Brexit SI seeks United Kingdom, including those applicable to family law, until to adopt the jurisdiction criterion for jurisdiction (save that joint 31 December 2020, when the transitional period will end. On applications are not currently possible in England and Wales), 1 January 2021, all EU law will cease to apply to the United with an additional ground of “sole domicile”. In the event that Kingdom, unless the transitional period is extended or an agree- there is no agreement to replace the provisions of Brussels IIa, ment has been reached that sees the continuation of some EU from a UK perspective, the lis pendens rule will end and we will laws. Despite multiple offers by the EU to extend the tran- revert back to the law pre-Brussels IIa, namely forum non conveniens, sitional period, the UK Prime Minister, Boris Johnson, has with forum cases being decided in the same manner as cases with remained resolute that a final, long-term arrangement can be non-EU forum disputes. negotiated by 31 December 2020, and the offers to extend have Whilst some practitioners may rejoice at the end of the lis been refused. Surprisingly, the inevitable delays to Brexit nego- pendens rule for UK-EU cases (a practice which can lead to arbi- tiations caused by the focus on the COVID-19 pandemic have trary and unfair decisions), the strain that a removal may place on not changed the view of the UK government, and the United the already stretched UK courts is a concern to many. Until test Kingdom is now edging dangerously close to a no-deal cliff cases come through the courts in the post-Brexit era (assuming no edge on 31 December 2020. It is therefore still imperative for deal), it is difficult to say whether the return to forum non conveniens practitioners to prepare themselves for a no-deal scenario, and will see increased court time and cost, as parties examine every consider how UK family law in cases involving one of the EU-27 connecting factor with the competing Member States. Many may look for clients after the transitional period if an agreement practitioners fear that it will lead to lengthier trials, as evidence of is not reached. fact is examined, longer witness statements and therefore higher costs. In particular for courts dealing with litigants in person, disputes could become very burdensome both for the courts and Divorce the parties. That being said, the lis pendens rule does not necessarily avoid lengthy and expensive litigation in cases where juris- During the transitional period, all parts of the United Kingdom diction is challenged. For example, seeking to establish that a (England & Wales, Scotland and Northern Ireland) will apply party has been habitually resident in one country necessarily and remain bound by Council Regulation (EC) No 2201/2003 of involves considering all sorts of facts, such as the location of a 27 November 2003 concerning jurisdiction and the recognition party’s hairdresser, florist, dentist, yoga teacher, etc. It is argu- and enforcement of judgments in matrimonial matters and the able that we are simply replacing one set of expensive litigation matters of parental responsibility (“Brussels IIa”). This applies to with another, rather than moving to a more expensive regime. all EU Member States (except for Denmark). Article 21 provides Even without a replacement agreement, lis pendens is unlikely for there to be automatic recognition in all Member States of to be lost entirely. In disputes before the English courts divorce, legal separation or marriage annulment orders, with the involving a non-EU state, the court has discretion to impose a limited grounds for non-recognition set out in Article 22. stay of proceedings if there are proceedings in another country, By virtue of Brussels IIa, there is a harmonised set of rules if it considers it is in the balance of fairness to do so.1 The across the European Union on jurisdiction, with a procedure fact another country was first seized is a relevant consideration stipulated in the event that there are competing jurisdictions. within this balance when considering an application to stay its

Family Law 2021 2 Brexit and Family Law

proceedings. Further, as each of the EU-27 will apply their own As the United Kingdom loses the Maintenance Regulation, laws, timing may still be key and it is imperative that local advice so too does it lose the sole domicile restriction. Article 3 of is taken in each country as soon as possible. the EU Maintenance Regulation states that EU Member States At present, UK divorces are recognised throughout the only have jurisdiction for maintenance when either party is European Union automatically by virtue of Brussels IIa. At habitually resident in that country or when ancillary to divorce the end of the transition period, this will cease to apply, and proceedings, provided jurisdiction for the divorce proceed- reference will need to be made to the 1970 Hague Convention ings is not based exclusively on sole domicile (or sole nation- on the Recognition of Divorces and Legal Separations (the ality). This means that for cases where sole domicile is relied “1970 Hague Convention”). Presently, however, only 12 of the on (i.e. when other tests for jurisdiction cannot be satisfied in remaining EU Member States are signatories to the 1970 Hague the UK or any other Member State, or where there are connec- Convention. Whilst local advice should always be taken, it is tions with countries outside of the European Union), the United considered that these 12 Member States are likely to recognise Kingdom (as with the other Member States) cannot make needs- UK divorces. The 15 EU Member States who are not signatories based maintenance awards. This is a deeply unsatisfying posi- present more uncertainty, although politically, it is difficult to tion, and an example where it can be said that EU family law see why those Member States would cease to recognise civil UK overreaches English law. Post-Brexit, this restriction will fall divorces, as they have recognised them for so many years. For away. However, this in itself will not be without problems. An those countries that do not apply the 1970 Hague Convention, order based on sole domicile may not be recognised or enforce- practitioners should ensure the jurisdiction grounds for the able in some of the remaining EU Member States, and pleading divorce would satisfy the requirements in the country where multiple grounds (if available) may be necessary. recognition is sought. A concern amongst many UK practitioners was, and remains, the loss of reciprocity and uniformity for UK-EU cases. Whilst use of the 2007 Hague Convention deals with that to some extent, Same-sex marriages as considered above, only 12 of the 27 remaining EU Members States are signatories to the Convention. For those Member Only 14 of the remaining 27 Member States allow same-sex States that are not, as with non-EU states, it will be necessary to marriage, with seven countries actually banning same-sex consider that Member State’s domestic legislation or codes. marriage in their constitutions. Only 13 of the 27 remaining A positive change for the United Kingdom in respect of Member States recognise civil partnerships. Currently, under maintenance post-Brexit is the amendment to the Brexit SI set EU law, same-sex marriages are likely to be recognised. After out in “The Jurisdiction and Judgments (Family) (Amendment the transition period, it is not clear if same-sex couples will etc.) (EU Exit) (No. 2) Regulations 2019 No. 836”. As a result, benefit from this protection. From an outgoing perspective (i.e. England and Wales’ domestic Children Act 1989 will deal with cases going out of the UK), it is thought that divorce arising jurisdiction for child maintenance claims under Schedule 1 of from same-sex marriages should be covered by the 2007 Hague the Children Act 1989 in the same manner as the Maintenance Convention on the International Recovery of Child Support Regulation. Unlike the Maintenance Regulation, the Children and Other Forms of Family Maintenance (the “2007 Hague Act 1989 will apply to worldwide cases, not just intra-EU cases. Convention”), which has been independently ratified by the In respect of maintenance claims (but not rights in property UK. Civil partnerships, however, do not appear to be covered. arising out of a matrimonial relationship), the Lugano Convention will offer a second option if the United Kingdom’s application to Financial relief (including maintenance) become an independent contracting party is accepted (see further below). The Lugano Convention contains direct jurisdiction and lis pendens rules in respect of maintenance. Assuming the UK’s Jurisdiction for financial relief is currently found in article 3 of application is accepted, however, it remains unclear which of the Brussels IIa and, in respect of maintenance, articles 3 to 7 of the Lugano Convention or the 2007 Hague Convention will take Maintenance Regulation. Both will cease to apply to the United precedence in the event that either could apply. Kingdom after the implementation period expires. Absent further legislation, the United Kingdom will revert back to the law as it was prior to Brussels IIa. In the absence of any new Pensions domestic law, or a continuing, reciprocal arrangement with the Disappointingly for English and Welsh practitioners, there is UK and the EU-27, priority between competing jurisdictions currently no proposal for provision similar to Article 7 of the will therefore be determined by forum non conveniens, which is Maintenance Regulation (forum necessitatis), which will impact the outlined in the Domicile & Matrimonial Proceedings Act 1973. ability to seek English pension sharing orders after a foreign The 2007 Hague Convention does not contain a code of juris- pension sharing order or agreement. These orders currently diction in the way the Maintenance Regulation does. Further, occur under Part III of the Matrimonial and Family Proceedings the Brexit SI does not contain express rules for jurisdiction in Act 1984, and, for those cases where there is no jurisdiction respect of maintenance claims. Whilst it replaces the jurisdic- available (because the parties do not have an ongoing connection provisions for Brussels IIa, it does not do the same for the tion to England and Wales, save for the English pension), Article Maintenance Regulation. Prior to Brussels IIa, the position was 7 provides a route to make that claim. Unless a similar provi- that maintenance jurisdiction would follow divorce jurisdic- sion is provided for in new domestic law, any parties without tion. Absent any further legislation therefore, the issue of main- a connection to England (but for an English pension) will be tenance jurisdiction will be subsumed by the rest of the finan- unable to make a Part III claim for an English pension sharing cial claims in divorce proceedings. How that will be viewed by order after a foreign order or agreement. Whilst this will only the remaining EU Member States remains to be seen. It will be affect a small number of cases, it is nonetheless a disappoint- important (in fact, essential) to consider the jurisdiction rules ment. For practitioners dealing with cases with that scenario, in any remaining Member State where enforcement might be any application under Part III relying on Article 7 will need to necessary as early as possible, particularly if the jurisdiction for be made before the end of the transition period. divorce is based on the ground of sole domicile alone.

Family Law 2021 Kingsley Napley LLP 3

Prenuptial Agreements In losing Brussels IIa, the UK will lose the benefit of Articles 11(6) to (8) for cases of child abduction, which are not repli- The law on pre-nuptial agreements is unlikely to experience cated in the 1996 Hague Convention. These provisions enable much change as a result of Brexit. The primary change relates applicants a second attempt at return proceedings after Hague to choice of court agreements in relation to maintenance. At proceedings have concluded and will no longer be available to present, Article 4 of the Maintenance Regulation enables parties UK-EU cases. The logic behind these provisions was to act as a to choose the courts of a Member State which will have exclu- deterrent to would-be child abductors. sive jurisdiction in matters relating to maintenance obligations, Brussels IIa expressly requires expedition of cases in child subject to the conditions set out in article 4(1)(a)-(c) being met. abduction, with cases to be determined within six weeks, save The effect of a valid choice of court agreement is to give the for in exceptional circumstances. No such provision exists in chosen court exclusive jurisdiction on disputes regarding main- the 1996 Hague Convention. The 1980 Convention states that if tenance obligations, such that if proceedings are started in a judgment in a child abduction case has not been made within another Member State, that Member State will generally stay its six weeks from the date of the commencement of proceedings, proceedings under the lis pendens rule contained in Article 12 of the applicant or the Central Authority of the requested State the Maintenance Regulation. shall have the right to request a statement of the reasons for On 31 January 2020, the Jurisdiction and Judgments (Family) the delay. Whilst this conveys a clear expectation that deci- (Amendment etc.) (EU Exit) Regulations 2019 (“the 2019 sions should be made within six weeks, it is not absolute, like in 2 Regulations”) come into force. Regulation 6 of the 2019 Brussels IIa. That being said, it is hoped that there will still be a Regulations revokes the Maintenance Regulation. However, willingness amongst the judiciary to deal with such cases swiftly, regulation 8 contains specific transitional provisions in rela- regardless of the jurisdictions in question, as in most cases this is tion to choice of court agreements pursuant to article 4 of the clearly in the best interests of the child. Maintenance Regulation. As a result, any choice of court agree- Under the 1980 Hague Convention, a Member State can ment entered into before or after exit day will be recognised by refuse to return a child subject to a return order of another the English court thereafter. Accordingly, an English court Member State if it considers there is a grave risk that the return faced with a choice of court agreement in favour of a one of of that child would expose him or her to “physical or psycho- the EU-27 is likely to stay its proceedings to allow the claim to logical harm or otherwise place the child in an intolerable situ- proceed in the elected jurisdiction, irrespective of whether the ation”. Brussels IIa allowed for this to be circumvented if (and agreement was entered into before or after exit day. Conversely, only if) there were adequate protective measures in please to it is considered that an English court faced with a foreign rectify that risk. Therefore, when Brussels IIa ceases to apply at pre-nuptial agreement electing this jurisdiction is likely to accept the end of the transitional period, as matters stand, even if there jurisdiction in circumstances where it may not otherwise have are adequate protections in place in the returning Member State, jurisdiction, although it could stay its proceedings on different the other Member State (where the child has been abducted to) grounds (e.g. forum non conveniens). can refuse a return order. A parent in such a situation could What remains unclear is how the courts of the EU-27 will be left facing a second legal system, possibly not in their native approach a choice of court agreement that elects the courts of language. Whilst not a regular occurrence for most practi- England and Wales as the proper forum for the determination of any dispute in relation to maintenance. At the time of writing, tioners, it is a change that will be keenly felt by the few vulner- there is no treaty between the EU and the UK regarding recip- able clients it will affect. rocal recognition and enforcement of maintenance orders. The The United Kingdom’s exit from the European Union means Lugano Convention may offer a solution. Choice of court agree- it will not benefit from the enhanced provisions provided in the ments in relation to maintenance are currently permissible under recast of Brussels IIa when they start to apply in 2021, such as: article 23 of the Lugano Convention. Previously, the UK was a the complete abolition of exequatur for all decisions in matters of signatory to the Lugano Convention by virtue of being an EU parental responsibility (saving parties time and money whenever Member State. When it ceased to be a Member State, the UK a decision needs to circulate from one Member State to another); ceased to be a signatory to the Lugano Convention. In April clearer rules on the opportunity for the child to express his/ 2020, the United Kingdom lodged its application to become an her views with the introduction of an obligation to give the independent contracting party to the Lugano Convention. The child a genuine and effective opportunity to express his/her Swiss Federal Council has notified the parties to the Convention views; and the harmonisation of certain rules for the enforce- of the UK’s application and they each have a year to respond. ment procedure (including enabling Article 20 urgent protec- That process is still pending, and the UK can only successfully tive measures to be capable of recognition and enforcement in continue in the Convention if the current parties agree to accept other EU Member States. This will not assist any UK orders the UK’s application. The EFTA states have publicly stated that as the recast will not apply to the United Kingdom). There is they will support the UK’s application, but as yet the EU has a view that the recast will add real value, so it is disappointing not given a public indication of its view on the matter, save for that the United Kingdom will not benefit from these, although it suggesting that accession to the Convention should be part of could seek to unilaterally adopt these terms. Should that happen the bigger Brexit negotiation package. there is, again, a question of reciprocity, as the remaining EU Member States will be under no obligation to apply these terms Children Proceedings, Including Abduction to UK-EU cases. However, some aspects of the recast are not reliant on reciprocity, such as the time limit for dealing with After the transitional period, the UK will no longer apply the cases, and such term has a clear benefit to parties and children. provisions of Brussels IIa to children cases, and will instead need In respect of matters of parental responsibility, Article 9 to look to the 1980 Hague Convention on the Civil Aspects of of Brussels IIa provides that, within the first three months International Child Abduction (the “1980 Hague Convention”) following a child’s move to another Member State, the child’s and the 1996 Hague Convention on Parental Responsibility habitual residence will remain in the “left behind” state. Whilst and Protection of Children (the “1996 Hague Convention”). A this is a small window, it gives the “left behind” parent some number of changes will arise as a result of this, some examples reassurances that in the event of an issue arising within that of which are considered here. window, the court of the former Member State could deal with

Family Law 2021 4 Brexit and Family Law

any issues and modify the order. This provision is not provided As alluded to above, the sole domicile ground could spell for in the 1996 Hague Convention, so as matters stand, in the enforcement difficulties for UK practitioners. If an order is event of a no-deal Brexit at the end of the transition period, this made in circumstances where sole domicile is the only ground small but helpful window will fall away for any UK-EU cases. of jurisdiction, any EU-27 country that does not recognise Currently, English contact orders are automatically recognis- sole domicile may not recognise the order. Where sole domi- able and enforceable in Member States, providing the appro- cile is the only available jurisdictional ground, the UK practi- priate certificate is annexed to the Order. After the transitional tioner would be wise to warn their clients of the risk of diffi- period, English contact orders will face a two-tier process with culties in the event there are cross-border issues in the future. contracting states to the 1996 Hague Convention; firstly, recog- Considering where the assets are will be essential; is enforce- nition and secondly, enforcement. Whilst this is not an absolute ment of a UK order going to be possible in the country where bar, it poses the threat of higher costs for litigants and greater assets are located? If not, is obtaining an order in the UK worth- delays. Obtaining mirror orders, at the earliest opportunity, while for the client? Considering the domestic law of the EU-27 could alleviate any enforcement concerns, although at greater country in question will be important at an early stage, to ensure financial cost to clients. clients do not spends thousands of pounds on obtaining an On 18 January 2019, the European Commission produced order in the UK that cannot be enforced and therefore amounts guidance for Member States, dealing with jurisdiction, recog- to nothing more than a piece of paper. nition and enforcement in civil justice and private children law. Whilst it is guidance only, it states that an EU Member State Conclusion will not give effect to a UK order made before Exit Day unless the required registration process has been concluded before The prospect of the UK government having negotiated any post- Exit Day. More generally, unless there is overriding EU guid- Brexit family law agreement before 31 December 2020 is, I fear, ance or agreement in place, the position taken on UK orders and extremely slim. Family law has, disappointingly, always been low decisions will be down to each individual Member State, as per on the UK political agenda, and that is unlikely to change now their national law. The position could differ between different that the political workload has drastically increased. In addi- Member States and, again, parallel advice in the country in question, the COVID-19 pandemic has undoubtedly caused delays, tion will be crucial. as many governing bodies have understandably redirected their attentions and resources to tackling the global pandemic. When Anglo-English Issues Arising on Brexit dealing with a case with an EU-27 country, or if a practitioner in an EU-27 country is dealing with a case with a UK element, England & Wales and Scotland, as two independent jurisdic- seeking local advice at an early stage is going to be absolutely tions, do not have complete uniformity in their domestic laws. essential. Fortunately, despite the Brexit referendum, and irre- Whilst any differences post-Brexit are likely to apply in a limited spective of how UK practitioners voted, there is a willingness to number of cases, for the parties to those cases, the differences are ensure intra-EU/UK family law matters work in practice, and very important as the two jurisdictions have very different rules there has been much cooperation amongst family lawyers across on, for example, maintenance provisions to spouses on divorce. the UK and the EU-27. The interests of family law clients often rely on cross-border relationships working well, and the UK’s Possible Pitfalls decision to leave the European Union has not changed that. Whilst there remains uncertainty as to how exactly intra-EU/ Endnotes UK family law matters will work after the transition period, it is difficult to predict with certainty where difficulties may lie. 1. Schedule 1, paragraph 9 of the Domicile and Matrimonial However, some potential warning areas are already emerging. Proceedings Act 1973. As set out above, various Hague Conventions will plug some 2. As amended by the Jurisdiction and Judgments (Family) of the gaps left when EU law ceases to apply to the United (Amendment etc.) (EU Exit) (No 2) Regulations 2019 (SI Kingdom. However, practitioners must be wary of reservations 2019/836), and the Civil Jurisdiction and Judgments (Civil and declarations. Unlike with Brussels IIa and the Maintenance and Family) (Amendment) (EU Exit) Regulations 2019). Regulation, which apply uniformly to its signatories, UK prac- 3. https://www.hcch.net/en/instruments/conventions. titioners will need to take care in checking whether a particular country in the EU-27 is a signatory to the relevant Hague Convention and if so, what if any reservations or extensions apply. The same will apply for practitioners within the EU-27 when dealing with the United Kingdom. Details of any reservations or extensions are usually kept up to date online.3

Family Law 2021 Kingsley Napley LLP 5

Stacey Nevin is a Senior Associate Solicitor in the Family team at Kingsley Napley. She specialises in all aspects of family law, with a particular focus on cross-border disputes involving jurisdiction races and proceedings in multiple countries, and complex financial issues including offshore trust arrangements. Stacey writes regular articles and has been quoted in the press, offering commentary on landmark cases. In the legal directory, The Legal 500, Stacey has been described as a lawyer with “client care second to none” and “a detailed knowledge of the law and good judgement when it comes to tactics”.

Kingsley Napley LLP Tel: +44 207 369 3824 Knights Quarter Email: [email protected] 14 St John’s Lane URL: www.kingsleynapley.co.uk London, EC1M 4AJ United Kingdom

Kingsley Napley is an internationally recognised law firm based in central London. Our wide range of expertise means that we are able to provide our clients with joined-up support in all areas of their business and private lives. The Family team, made of 15 lawyers and headed by Charlotte Bradley, covers all areas of family work, including divorce, financial issues, children (including relocation and surrogacy), cohabitation disputes and pre-nuptial agreements. Over 50% of our work has a significant international aspect. The team has been described by its peers as “the full package – there’s not one weak link”, “a force to be reckoned with, but they’re all extremely likeable people”, “absolutely top-end”, “a team that has a great breadth of experience across the board and particularly in international cases”, from “a standout firm” and a team that “always fights hard to defend your interests”. Clients have described Kingsley Napley as “an exceptional law firm, with extremely high- quality professionals and a kind and welcoming environment”. www.kingsleynapley.co.uk

Family Law 2021 6 Chapter 2

The Practice of International Family Law Rachael Kelsey

International Academy of Family Lawyers (IAFL) Marlene Eskind Moses

Introduction There are various publications setting out, for the benefit of the family law practitioner, how the substantive divorce and “International Family Law” is not a standalone discipline. It financial matters on divorce are dealt with in different jurisdic- means different things to different people – indeed, even “family tions throughout the world. You will need a lawyer who knows law” does not have a single accepted definition: for example, the law in their particular jurisdiction, but you will also need in some parts of the world it would encompass succession law, a lawyer who is used to dealing with cases with jurisdictional whereas in others it does not. In some places the word “interna- elements. For many practitioners now, this is at the heart of their tional” in a family law context has come to be synonymous with international practice. This is because we may be confronted “jurisdiction” and so covers family law issues arising within the with jurisdiction races, or forum shopping, where one party tries boundaries of one country. What is clear is that if you work with to divorce in one jurisdiction and the other wishes to divorce in families who have connections with more than one legal system, another jurisdiction. then you do need some specialist knowledge – even if that is In the EU, a Regulation known as Brussels IIa (Council only to know what you do not know! Regulation (EC) No 2201/2003) has been with us since 23 In this chapter, we will identify the areas of family law which November 2003. All members of the European Union (apart may involve international elements and what those elements from Denmark) are bound by the Regulation, which provides might be. Here we do not seek to tell you about the law in any a set of rules to determine jurisdiction to entertain, and then given part of the world – the chapters will give you some general progress, divorce proceedings. The UK, although no longer a information on that score – but what we will do is give you an Member State, will continue to apply the Regulation until the 31 indication of how a practitioner should think and what he or she December 2020 (and the EU Member States will treat the UK should do in the event that a set of circumstances with an inter- as though it was still a Member State until then). There may national element presents itself. It is important that lawyers do not give advice on foreign be multiple places which would have concurrent jurisdiction to law unless they are qualified to do so; it is sometimes tempting. deal with divorce, so the Regulation provides rules which are There are, of course, a number of internationally recognised designed to avoid competing proceedings or the risk of irrecon- conventions and instruments which certain jurisdictions have cilable judgments. Note though, that the Regulation does not signed up to (for example, instruments that bind EU Member proscribe the grounds for the divorce itself, which remains a States and various Hague conventions and protocols which have matter of national law – the Regulation simply deals with the international reach) and lawyers need to understand whether PIL rules that provide for whether a state would be able to enter- any such international instruments have relevance in their legal tain a divorce. system, or in other systems that may apply to the family in ques- This is not the case in respect of countries outside the EU tion. There is often no universal application either and, there- where we should never assume that we know what is required in fore, you also need to understand how they will be interpreted order to found jurisdiction to raise divorce proceedings. There in the other system(s). Being able to contact a specialist family are many jurisdictions (both within and outside the EU) where lawyer in another jurisdiction is invaluable; he or she will be able the parties must have been living separately for a period prior to to provide chapter and verse on whether or not that particular issuing divorce proceedings (such as Italy, Ireland and Australia). country has jurisdiction, as well as give you advice on what the Under Brussels IIa, first in time counts for everything; outside law is and how it is applied. A lawyer who is experienced in inter- Brussels IIa, there is still the possibility for there to be an argu- national work will also be able to work with you to maximise the ment about which is the more “appropriate” forum (forum outcomes for your clients across legal boundaries. non conveniens), although first in time counts for a great deal as After that brief homily, the best thing to do may be to deal between many jurisdictions. The mechanics for dealing with with each area of practice under its own heading. issues, such as where the divorce should take place, are complex. It might be considered by many that the venue of the divorce Divorce/Financial Provision and Cohabitation itself is of relatively little importance compared with which There are four things that must be thought about when it comes jurisdiction the finances will be dealt with. The stress of deter- to divorce: mining where the divorce is dealt with is usually exacerbated by ■ Which jurisdiction(s) can entertain proceedings? the fact that, once the divorce jurisdiction is established, that ■ What elements would they be capable of dealing with – the is where the finances will normally be dealt with. It does not divorce, financial provision, children issues? necessarily follow in every jurisdiction that finances have to be ■ What law would they apply? dealt with in the jurisdiction where the divorce is and, certainly ■ What would they do if there were competing proceedings in EU countries, the Regulations that apply expressly allow for elsewhere?

Family Law 2021 IAFL 7

the separation of different elements across jurisdictions. For powerless to provide for her. The English court is cautious example, you could have a situation where the divorce and some about re-opening these matters and there has to be a substan- financial elements were dealt with in Spain, the maintenance tial connection with England and Wales for it to do so, but it elements (as between the couple) in France and the childcare has been established in case law that an applicant is able to make elements in England and Wales. Usually the norm, however, such a claim without having to establish particular hardship. is that the jurisdiction to deal with financial claims flows from One significant difference between common law jurisdic- the jurisdiction to deal with divorce and many countries have no tions, such as most of the English-speaking countries in the freestanding jurisdiction to deal with financial issues resulting world, and civil law jurisdictions, often in non-English-speaking from a marriage in the event that divorce proceedings have been countries, is that civil law jurisdictions tend to have matrimonial issued elsewhere. For example, in the case of K v K (Leman- regimes. There are also a number of hybrid civil and common Klammers v Klammers [2007] EWCA Civ 919), a couple living in law jurisdictions, like South Africa and Scotland. Where there England, who were both French, had the jurisdiction to divorce is a matrimonial regime this means that, on marriage, couples either in France or in England. The petitions were issued on the are deemed to hold property in a particular manner, either at same day in each jurisdiction and the question that the courts that time or deferred to a future date. The nature of the regimes in both jurisdictions had to consider was which one was first in varies in different jurisdictions, but the default regime in many time. After a long argument, it was ultimately established that jurisdictions is that the assets acquired during the course of the English petition was first in time and the financial aspects the marriage are shared equally, usually excluding gifted and/ of the divorce followed on in England. The wife in that case or inherited assets and assets created or acquired prior to the was able to claim significantly more than she would have done marriage. The regimes are concerned with division/ownership had the divorce happened in France. These kind of competing of property during the marriage, not questions of maintenance proceedings, “forum shopping” matters, are fairly common now or what will occur on divorce, and there is a marked distinc- (although it is rare for petitions to be filed on the same actual tion between the two in civil law jurisdictions. The job of the day) precisely because there is no harmonisation of laws relating family courts in many civil law jurisdictions is first to divide to the division of assets on divorce or the levels of and extent the property in accordance with the matrimonial regime and, of maintenance, which extend to very different outcomes in secondly, to deal with any questions of maintenance (in addi- different jurisdictions. tion, of course, to dealing with the divorce itself). The courts Outside the EU, where the forum non conveniens rule may apply, normally have little discretion regarding the division of prop- or in EU states where they recognise this doctrine and the erty as that division is already established in law. This is quite competing proceedings are outside the EU, it may be neces- different in the common law jurisdictions where the court tends sary to apply for a stay in the jurisdiction where the other party to have more discretion in respect of the division of property. has served proceedings and/or even an anti-suit injunction (if There are significant differences in how the issue of main- such injunctions exist in the relevant jurisdiction – not all juris- tenance is dealt with in various jurisdictions across the world. dictions purport to exercise extra-territorial jurisdiction as is For example, in England and Wales alone, it is well-known the case with, for example, England and Wales and Australia). that spousal periodical payments are “generous” compared These matters are complex and the outcomes are very often with other jurisdictions and are often ordered on a “joint lives” unpredictable because they tend to be dealt with on a discre- basis, although there has been some movement away from that tionary basis and there is not always a lot of precedent. now. By contrast: in Scotland, spousal support is uncommon There is no national or federal law, with the exception of after divorce with any need to help a party adjust to the loss of aspects of child support and child abduction, in the United States support that will ensue after divorce being capitalised to effect with respect to family law. There are 50 states in the United a clean break if possible; in Sweden and Finland, the concept of States each with their own family law approaches, particularly spousal maintenance barely exists; in Australia and many other relative to financial matters. countries, joint lives spousal maintenance orders are very rare; in As set out above, although finances are nearly always dealt England and Wales, there is an obligation on the court to try to with in the same jurisdiction where the divorce takes place, achieve a “clean break” between the parties, but this will often this is not invariably the case. For example, under the EU involve a capitalisation of the maintenance payments which is Maintenance Regulation (Council Regulation (EC) No 4/2009), only possible where there is a lot of money; in France, main- it is possible to have issues of support dealt with in a different tenance is dealt with by way of a lump sum called a “prestation jurisdiction from where the divorce is taking place. The compensatoire”; and in other countries, the calculation of main- Maintenance Regulation again provides jurisdictional bases for tenance is rather formulaic. In short, there is little consistency making applications, allows for choice of court for some claims around the world and often huge variations of approach within and is very helpful in terms of enforcement. It does, however, one jurisdiction, for example, Northern and Southern Germany change a lot in the day-to-day practice of the courts and we are and within one country (made up of different jurisdictions), like still finding our way in terms of how it operates as between the the UK and the United States. EU Member States. The United States, in particular, has seen a real backlash on In England and Wales, under Part III of the Matrimonial and the matters of spousal support. The question of when support Family Proceedings Act 1984, it is possible for the English court will end is the subject of legislation in many states. There are to consider or reconsider a financial claim after an overseas also efforts to limit the amounts of the awards. Further, there divorce (there is also similar, but usually less generous, provi- is now a very real expectation that both parties to the divorce sion in other jurisdictions, for example Scotland and some states proceedings contribute to their own support. In some cases, in the United States). This is possible whether or not there was a income will be imputed to a dependent spouse regardless of financial order made in the other jurisdiction. This is frequently their actual earnings. There have been significant changes criticised by other countries as allowing an applicant to have a recently in the tax treatment of spousal support in the United “second bite of the cherry”. It originated in order to deal with States, which is very much a hot topic there and may impact a number of cases where a divorce had taken place in a juris- markedly on outcomes. diction where the non-working wife was entitled to no finan- Whether or not parties have been married is critical to the cial provision and the courts of England, where she lived, were sort of provision that can be made when they separate. Many

Family Law 2021 8 The Practice of International Family Law

religious marriages, for example, are not recognised if they take habitually resident in the state in respect of which the return place in a country like England, but might be recognised by the application is being made. Moreover, the applicant parent (or English courts if they take place abroad and conform with rules in some cases, applicant institution) must have had rights of for marrying validly in another jurisdiction. Some summary custody over the child in question. overseas divorces will not be recognised either in some jurisdic- Providing that the application is made within 12 months of tions. Most United States courts will only recognise marriages the wrongful removal, the courts of the country where the child where the law of the place of marriage comports with United has been taken/is being retained are required to order their States recognition of individual rights. Again, this is a state-by- return forthwith. These courts should in theory deal with the state topic with some recognising marriages under Sharia law matter within six weeks. Various defences exist that can prevent and others not. a return order being made, such as the other parent consenting The availability of financial provision following cohabitation to the removal or a risk of grave physical or psychological harm varies hugely across the world and often is not as one might if the child is returned. Generally speaking, the 1980 Hague expect. For example, in the UK, the law of England and Wales Convention is an effective method of swiftly returning children does not give the courts power to deal with the allocation of who have been unlawfully removed from their home jurisdic- finances at the end of a period of cohabitation (other than in tion, if an application is made within 12 months. However, once limited circumstances where rights in property ownership have the child has been absent for over a year, the return process been established under trusts law and/or where there are minor is more difficult. In some jurisdictions, courts are able to use children), whereas in Scotland former cohabitants have statutory domestic law powers to return a child, even if a return under rights to make financial claims. the Convention is not made out. In 2019, the IAFL intervened When it comes to the enforcement of orders made abroad, in a case before the United Kingdom Supreme Court – “In the whether they fall under the heading of “maintenance” or “prop- matter of NY (A Child)” (https://www.supremecourt.uk/cases/ erty division” is often a crucial factor. European Regulations, uksc-2019-0145.html). Practitioners from 17 different juris- Hague and Lugano Conventions and other legislation have dictions gave information to the UK courts about the extent assisted in this as far as maintenance is concerned, but there are to which their courts would use domestic, inherent jurisdic- still issues with the enforcement of capital orders. It is impor- tion, powers (or not) and how Article 18 of the Convention was tant to remember that sometimes capital orders which are made interpreted in their jurisdiction. You can find out more about to provide for the needs of an individual may very well fall under the submissions made on behalf of the IAFL at http://www. the heading of a “maintenance” order, even though they are not iafl.com and the judgment can be found here: https://www. periodical payments and can therefore benefit from some of the supremecourt.uk/cases/docs/uksc-2019-0145-judgment.pdf. enforcement provisions that exist. The law in this area is fast-moving, and you should be sure to review the case law on the relevant Article(s) of the Convention Child Abduction and Relocation on the INCADAT website (https://www.incadat.com/en). The outcomes are often not as people would anticipate, as there is In an increasingly globalised world, disputes between parents over often an erroneous assumption that the court will be concerned their children’s country of residence are on the rise. At its most about the welfare of the child when the issues should not gener- extreme, this field can involve the unlawful removal of a child to ally have great regard to such matters – which should be for the another jurisdiction by one parent. Although removing a child court of the child’s habitual residence to deal with. For example, from the jurisdiction without permission of the other parent is generally against the law, domestic courts are inherently unsuited in the case of Re L (1980 Hague Convention) (Lithuania) [2015] to dealing with such cross-border issues, lacking the ability to EWCA Civ 720, the court returned an 11-year-old child to a have their orders enforced without government involvement. As country, contrary to her wishes. The case concerned an applica- a result, various international agreements exist to combat child tion to return an 11-year-old girl to Lithuania. The mother, who abduction. It is worth noting that whilst some countries are not had brought the child to the UK, resisted the application on the signatories to the 1980 Hague Convention on Child Abduction basis that the child objected and that there was risk of grave phys- (see below), there may be bilateral agreements between individual ical/psychological harm if she were to be returned to Lithuania. states that deal with this issue (for example, as exists between The Court of Appeal in England and Wales upheld the decision Pakistan and the UK). If the state is not one of the 101 parties to of the lower court that the child should be returned to Lithuania. the 1980 Hague Convention, the solution may have to be found Although the child in question wished to remain in England, through diplomatic routes as opposed to legal ones. the court noted that the issue of the mother’s influence weighed The 1980 Hague Convention on the Civil Aspects of heavily on the trial judge’s mind. As such, considering all the International Child Abduction is an international agreement circumstances of the case, the child was returned to Lithuania. that seeks to protect children from the harmful effects of abduc- There are other relevant Hague Conventions, too; for example, tion and retention across international boundaries by providing the 1996 Hague Convention (https://www.hcch.net/en/instru- a procedure to bring about their prompt return. There are ments/conventions/full-text/?cid=70-), usually known as the procedures to ensure the swift return of any children unlaw- “Protection Convention”. This Convention bolsters the provi- fully removed (or retained) from their country of habitual resi- sion of the 1980 Convention in some respects and extends provi- dence. There are various conditions that must be met for the sion for children who move internationally, beyond the child 1980 Hague Convention to apply. The Convention is a state- abduction regime; for example, by including provision to allow to-state treaty which means that party states have an obligation orders made in different jurisdictions to be enforced. For to each other to ensure that the Convention is upheld in their example, if a child has been unlawfully removed and there is domestic law. an order in favour of the left-behind parent in their country of The jurisprudence on the Convention comes from across habitual residence, the order will be enforceable in other juris- the world, and there are significant complexities. In some- dictions. In some cases, this can offer a second route to pursue what overly simplistic terms only, therefore, some of the crit- for left-behind parents in a child abduction scenario. The 1996 ical elements are that the child in question must be under the Convention applies to children up to the age of 18. There are age of 16 and must have been (prior to the removal or retention) only 52 contracting parties to the 1996 Convention.

Family Law 2021 IAFL 9

Brussels IIa also contains provisions relating to child abduc- evaluate the parents’ plans with reference to the proportionality tion between EU Member States, and these build on and principle, especially in light of the links being severed between enhance the 1980 and 1996 Hague Convention provision. the child and a parent. Brussels IIa can therefore be useful as it contains better provision in a number of respects. ii) Jurisdiction Private Children Law As would be expected, the primary basis for jurisdiction in most As parents move from state to state, either with or without their states is the habitual residence of the child. If habitual residence children, various legal issues arise. The most obvious issue for cannot be established, then the state where the child is present people with children relates to cross-border relocation, but the will likely have jurisdiction. There are some exceptions to these international context also touches upon enforcement of orders general rules, but they are rather limited. Most take the form of and jurisdiction. a lingering jurisdiction from a previous country of residence and require the consent of all parties, but some Sharia-based systems do provide for jurisdiction based upon parentage. i) Leave to Remove (Relocation) In the United States, there is a uniform law known as the Uniform Child Custody Jurisdiction and Enforcement Act Many parents choose to pursue international relocation through (UCCJEA), generally adopted in most states, which provides the courts by an application for leave to remove the children that jurisdiction is where the child has been a resident for six from another jurisdiction to “go home”, to follow a job or a new months, with some exceptions. partner or for a lifestyle choice. Regrettably, many parents (and Beyond this, Brussels IIa governs jurisdiction between lawyers!) do not realise that it is a criminal offence in many parts Member States of the EU, in relation to the allocation, exercise of the world to remove a child without the appropriate consent, and restriction/removal of parental responsibility. However, generally of every party with parental responsibility, or without it does not cover all issues, with notable exclusions being the an order of the court. Generally, the need for written consent of establishment of parent-child relationships, adoption, main- all those with parental responsibility (or from the court) being tenance obligations, trusts and succession and the determina- required before a child can be removed exists in many countries. tion of a child’s name. The main areas of private children law, There are significant differences across the world, however, such as custody and rights of access, are expressly included – especially in some Sharia-based systems or when it comes to the again, this is because the EU law in the arena of family law is role of the views of the child or young person. directed not at the substantive law (which remains a matter for In most countries, the welfare of the child is the paramount states themselves), but rather at the PIL provisions as between consideration. Different states determine this in different ways, the Member States. and there is also considerable variation in the extent to which As would be expected, in EU Member States, the primary the court will have regard, and give weight, to other factors. For basis for jurisdiction is the habitual residence of the child. If example, some states will give fairly significant weight to the habitual residence cannot be established, then the state where desires and welfare of the parent making the application to move the child is present will have jurisdiction. There are some (framing that often as impacting on the child). Many other exceptions to this general rule, but they are rather limited. One states, however, adopt a tougher approach to international relo- exception is when a child lawfully moves to another jurisdiction cation, whilst still characterising this as coming from a “welfare” within the EU. The state the child has just left retains jurisdic- approach. For example, in Germany, a parent can only lawfully tion for three months for the purpose of modifying a judgment remove a child from the jurisdiction if the other party consents on access rights. or if they are granted sole care of the child by the court. This Another exception applies where matrimonial proceedings is relatively rare and decided with reference to the best interests are ongoing in another jurisdiction. Jurisdiction will be estab- of the child. Case law in Germany has tended to focus on defi- lished in relation to parental responsibility connected with the ciencies in the care of the other parent when granting permis- application if at least one spouse has parental responsibility for sion to relocate, resulting in a much stricter approach. There the child and jurisdiction has been unequivocally accepted by can be significant subtleties from state to state that need to be the spouses and all holders of parental responsibility, and it is in understood before a strategy is adopted. For example, within the best interests of the child to do so. This jurisdiction comes the UK, there have tended to be different outcomes – applica- to an end when the proceedings for divorce/separation come to tions for relocation tend to be more successful in England and an end, and final judgment is given in the relevant proceedings. Wales than Scotland, and in the United States you will find a variety of approaches to a motion for relocation; however, the trend is generally to prohibit. iii) Enforcement There is no parallel provision to the 1980 Hague Convention on International Child Abduction with regard to leave to remove In terms of enforcing existing orders, in the EU, Brussels IIa applications. However, this area of law is showing some nascent has provision to ensure that access endures when the parties signs of harmonisation. At the International Judicial Conference move between Member States. This is by a mechanism called an on Cross-Border Family Relocation in Washington, D.C. in “access order”. A certificate will be issued by the original judge, March 2010, this issue was considered. Over 50 judges and certifying that all parties (and the child) have had the oppor- experts signed a declaration that there should be no presump- tunity to be heard and that the respondent party has had the tion either way when matters of international relocation come chance to prepare a defence. The access judgment will become before a court: welfare should be the determinative principle. automatically recognised and enforceable in all Member States. Overseas relocation can also engage Articles 6 and 8 of the The enforcement process will be determined by the Member European Convention on Human Rights (ECHR) (the right to State. However, it is worth bearing in mind that in some states a fair trial and the right to respect for private and family life, there will also, concurrently be jurisdiction to make a fresh respectively). The ECHR requires that states scrutinise and application to the new state’s court. In this sense, access rights

Family Law 2021 10 The Practice of International Family Law

are far from guaranteed. There will soon be changes to the Many jurisdictions will struggle to deal with assets held in a trust enforcement regime, which should make it easier still to have in the context of financial proceedings on divorce. recognised and enforced orders from another EU Member State It is probably in the jurisdiction of England and Wales that – these come from the recast of Brussels IIa, which is likely to the trust is most prevalent. The court there has the power to come into effect in 2022. vary a “nuptial settlement” as part of financial proceedings Outside of the EU, the solution may be to seek a “mirror (including a structure that they define as a “nuptial settlement” order” of a foreign judgment in the home jurisdiction, or vice drawn under the law of another place). There is no precise defi- versa. This is essentially an order in the same terms as the nition of a nuptial settlement, but case law has drawn a wide net foreign order. This can be useful in international relocation when considering this issue. It is some form of settlement which cases, requiring the relocating party to undertake to secure an makes continuing provision between spouses and can be created order relating to access in the new jurisdiction before leave to before or after marriage. The court should not interfere with remove is granted. Again, this is not a straightforward area of the settlement further than is necessary and must be wary of the law, as some states will not make an order before the child is impact on third parties. within that court’s jurisdiction and there is no such thing as a There are many other financial structures that are used mirror order. For example, in India, the courts will not consider commonly – for example, there are many partnerships drawn mirror orders and will begin every examination afresh. This under the law of Delaware, to benefit from the legal regime matter can become particularly complicated in Islamic coun- there, where otherwise there is no other Delaware connection. tries where the matter is complicated by Sharia compliance and You may well need to get advice on the structure in the rele- the fact that many of these countries have not adopted the 1980 vant jurisdiction, as well as considering how your own jurisdic- Hague Convention. tion should deal with it – both in the context of the financial provision application, and also when it comes to variation and iv) Child Support enforcement against the trustees/officers. Whether or not variation is possible in your jurisdiction, as ever with assets based outside of the jurisdiction, enforcement Child support again is a matter of domestic law. Jurisdiction will always be an issue. A trust outside the jurisdiction may is not always only with the courts in the place where the child well also hold assets in England and Wales. It may therefore be is habitually resident and in some places you can, for example, possible for an English court to have recourse to this property if sue in the place where the maintenance creditor (payee) is. As it can be argued that it is “available” to one of the parties. there can, again, be variations from place to place in relation to outcome, advice should be taken on where there is jurisdiction and the likely range of outcomes one might expect. The extent Procedure to which child support can be claimed and/or enforced across Even if the substantive differences in the law have been jurisdictions varies hugely. In some jurisdictions, a formula is addressed, the procedural idiosyncrasies of any jurisdiction must applied, whereas in others it is a matter for the courts to deter- also be considered. It is crucial to look beyond the letter of the mine what amount should be paid. law to see how family proceedings will actually play out in prac- Should a court order child maintenance, or there be an entitle- tice. On a general level, the differences in the substantive law ment under the regime in any given state, in respect of the parent can impact on procedure. For example, in Brazil there is provi- outside of the jurisdiction, it will need to be enforced. There sion for “no-fault” divorce and parties can attend court with are a number of international arrangements that exist, including their marriage certificate, ID documents and a fee in order to the 2007 Hague Convention – known as the “Maintenance obtain a divorce and in France there is now a non-court-based Convention” – and there are also a number of reciprocal enforce- option for divorce. In contrast, the procedure in England and ment of maintenance orders (REMOs) arrangements between Wales can take much longer as divorce requires a justification various countries. There is provision specific to EU Member and a sequence of paperwork to be lodged at court. Procedural States in the Maintenance Regulation. These treaties can ensure differences also arise in some more discrete areas, such as disclo- payment when the paying party lives outside of the jurisdiction. sure, court process and timing. Disclosure is one element of procedure in financial disputes The Hague Conventions that can have a huge bearing on the final outcome. A range of These are conventions proceeding from The Hague Conference approaches exist across different jurisdictions. Common law on Private International Law (HCCH) – a number have already jurisdictions tend to have more robust disclosure procedures. In been touched upon. The Hague Conventions are relevant to inter- California, for example, each spouse must fully disclose to the national family law in terms of developing both substantive law other all material information concerning the existence, char- and procedure. Although the most well-known convention relates acterisation and valuation of all assets. This duty is ongoing, to child abduction – the 1980 Convention – the Conventions also meaning that updating disclosure is required up until each asset cover a range of other important areas, many of them proce- has been dealt with by the trial judge. Moreover, the onus is dural. They include the Hague Service Convention 1965, The on the asset-holder to disclose information; it is not a defence Hague Evidence Convention 1970, The Hague Convention on to argue that the other party did not ask the appropriate ques- the Recognition of Divorces and Legal Separations 1970, The tions. Monetary sanctions exist if disclosure is inadequate. The Hague Trusts Convention 1995 and a number of others, some of law in England and Wales is similar, requiring robust disclosure. which have been used as the foundations of EU instruments that Failure to disclose can result in two outcomes: if non-disclosure enhance the provision for EU Member States. is suspected at the hearing, the court can (and frequently will) make assumptions as to the withheld information and adjust its Trusts and Other Financial Vehicles order accordingly; or if non-disclosure comes to light after an order has been made, then there is the possibility for the matter The power of the court to interfere with trusts varies hugely. to be reheard depending on how material the non-disclosure was. Trusts are essentially a common law concept and often misun- In contrast, in some other jurisdictions, disclosure is minimal. derstood, and mistrusted, by the courts in civil law jurisdictions. This is particularly true in continental Europe. Many civil law

Family Law 2021 IAFL 11

countries adopt the “hide and seek” approach. For example, Summary in Austria and Scotland, there is no obligation on a spouse to disclose their assets. They must only do so if the other party As can be seen, “International Family Law” is not a discrete makes a specific demand. As such, there is no effective way to field of law, but rather a more nebulous body of knowledge and guarantee a full and accurate picture of the assets of both parties. experience that touches upon various aspects of a domestic There are “declarations of honour” in some jurisdictions and not family law practice. Many areas of international family law a lot more; in many civil law jurisdictions the lawyer’s first duty still resemble a patchwork of different approaches, and whilst is to the client and not to the court, which leads to less openness other areas are embracing harmonisation, that is perhaps less in financial proceedings on divorce. Where one is dealing with the case in family law; certainly, in relation to substantive law, if proceedings, or possible proceedings, in common law vs. civil not recognition and enforcement. Therefore, it remains crucial, law jurisdictions, these procedural differences may actually tip now more than ever, for lawyers to seek specialist advice from the balance in deciding where to try to proceed. a lawyer who knows the law in their own jurisdiction and has Accommodation must also be made for the differing court experience of international family law work. processes across the world. For example, common law jurisdictions tend to adopt an adversarial model, in which each party (or their advocates) will make representations and examine witnesses in front of a judge who will then make a decision. In contrast, many civil law jurisdictions will involve a judge engaging in a fact-finding exercise and questioning the parties directly, often for very limited time, with the majority of the process being undertaken in writing.

Family Law 2021 12 The Practice of International Family Law

Rachael Kelsey is a Scottish lawyer, who works in Edinburgh and London. She is one of only three Scottish lawyers in the Chambers and Partners HNW Guide 2020, the only Scottish lawyer in the Spears Family Law Index 2020, and has been in the top rank of The Legal 500 and Chambers and Partners for well over a decade. She is President-Elect of the European Chapter of the IAFL. The current edition of The Legal 500 notes that “Rachael Kelsey is the go-to person on Scottish family law issues. She has accurate working knowledge of the law, a wonderful charm and an ease at being with demanding international clients” and describes her as “the doyen of Scots family law”. Rachael provides expert opinions on Scots law for courts outwith Scotland. Many of her cases have international or intra-UK jurisdictional issues, an area of specialism for which she is particularly well-known, not least as a result of her involvement from the outset in Villiers v Villiers.

SKO Family Law Specialists Tel: +44 131 322 6669 18 George Street Email: [email protected] Edinburgh EH2 2PF URL: www.sko-family.co.uk United Kingdom

Marlene Eskind Moses, a Nashville native, graduated from Hillsboro High School and earned a Bachelor’s degree in psychology and a Master’s degree in social work from Tulane University. She returned to Nashville to counsel clients in the drug and alcohol treatment programme at the Dede Wallace Center, now part of Centerstone. She later graduated from the Nashville School of Law and has received the distinguished alumni award from both Tulane and the Nashville School of Law. She initially practised law with Peebles & Moses before joining Moses & Austin and then Eisenstein, Moses & Mossman. In 2008, Marlene created her own law firm, Moses, Townsend & Russ. The name of the firm was changed to MTR Family Law in 2012 and is one of the most respected family and divorce law firms in Tennessee. U.S. News & World Report ranked MTR among its Best Law Firms in 2014. As a Fellow and past president of the American Academy of Matrimonial Lawyers, Marlene wrote and published “What To Tell Children”, which is printed in both English and Spanish. She is currently president of the International Academy of Family Lawyers, having served as president of the U.S. Chapter. Marlene is one of only 100 members across the country selected as a Diplomat of the American College of Family Trial Lawyers and serves as secretary and an executive committee member of the organisation. She is also a board member and past president of the Tennessee Supreme Court Historical Society. Marlene was campaign chair for the Legal Aid Society of Middle Tennessee and a founding member of Middle Tennessee Collaborative Alliance. A Leadership Nashville alum, she is a board member and campaign co-chair of Family & Children’s Service. Her chief hobbies include yoga, barre classes and walking. She and her late husband, Robert, are the parents of three grown children, Marissa (a partner in MTR), Caroline (a marketing manager at Nissan) and Ryan (an executive in family spirits business, Best Brands).

MTR Family Law, PLLC Tel: +1 615 341 0070 205 23rd Avenue North Email: [email protected] Nashville, TN 37203-1501 URL: www.mtrfamilylaw.com USA

The International Academy of Family Lawyers (IAFL) is an invitation-only worldwide association of practising lawyers who are recognised by their peers as the most experienced and skilled family law specialists in their respective countries. IAFL was formed in 1986 to improve the practice of law and administration of justice in the area of divorce and family law throughout the world. We now have over 860 fellows, practising in more than 80 different jurisdictions. www.iafl.com

Family Law 2021 Chapter 3 13

Surrogacy: Where Are We Now?

Payne Hicks Beach Sarah Williams

Historical Context of Surrogacy in the UK such an agreement. However, those who entered into surrogacy arrangements for financial gain would be liable to crim- Surrogacy occupies a rather unsatisfactory grey area in English inal prosecution.6 law. With the primary legislative foundations laid 35 years The prohibitions against the commercialisation of surrogacy ago in the Surrogacy Arrangements Act 1985, surrogacy falls are set out in s 2(1) of the SAA 1985 and provide that no person between being neither wholly encouraged nor strictly prohib- shall, on a commercial basis, do any of the following:7 ited. As the former President of the Family Division, Sir James (a) initiate any negotiations with a view to the making of a Munby, noted, “the approach in the Surrogacy Arrangements surrogacy arrangement; Act was – is – that surrogacy is, at best, to be tolerated, so neither (b) take part in any negotiations with a view to the making of encouraged nor in large part even regulated”.1 Thus, in prac- a surrogacy arrangement; tice, although altruistic and compensatory surrogacy arrange- (c) offer or agree to negotiate the making of a surrogacy ments are now permitted, commercial surrogacy remains strictly arrangement; banned and somewhat controversial. (d) compile any information with a view to its use in making, The initial political foray into surrogacy began in earnest in or negotiating, the making of surrogacy arrangements; and 1982, with the creation of the Warnock Committee, headed by (e) knowingly cause another to do any of those acts on a Baroness Warnock, the esteemed philosopher and ethicist. The commercial basis. Committee operated within strict terms of reference: “to consider Any individual doubting the force of such provisions would recent and potential developments in medicine and science be wise to acquaint themselves with the case of JP v LP [2014] related to human fertilisation and embryology, to consider what EWCH 595 (Fam), [2015] 1 ALL ER 26, when Eleanor King policies and safeguards should be applied, including considera- J noted that the solicitors, in drawing up a surrogacy agree- tion of the social, ethical and legal implications of these development, “were in fact committing a criminal offence as, whilst ments and to make recommendations.”2 When the Committee such agreements can be lawfully drawn up free of charge, the reported in July 1984, it steadfastly opposed the commerciali- solicitors in preparing and charging for the preparation of sation of surrogacy in any form, including measures to enforce the agreement were negotiating surrogacy arrangements on a criminal sanctions against any agencies involved in facilitating commercial basis in contravention of section 2 of the Surrogacy surrogacy arrangements. The Committee even went so far as Arrangements Act 1985…”. to recommend that any professionals who knowingly assisted There is no doubt that the advances in medical reproductive in the facilitation of a surrogacy arrangement should be made technologies at this time were making waves and provoking criminally liable.3 While the committee refrained from recom- controversy, particularly from religious groups. The following mending that the intended parents be liable to criminal prose- year, in 1986, the infamous US scandal of Baby M hit the world- cution, being concerned that children should not be “born to wide media when surrogate mother, Mary Beth Whitehead, mothers subject to the taint of criminality”,4 they did, however, answered a newspaper advert from Mr William Stern and recommend that all surrogacy contracts be deemed illegal and his wife, Elizabeth to have a child in return for $10,000.8 thus unenforceable in the courts. Significantly, Mary-Beth agreed to use her own eggs and be In the same year, when Kim Cotton (a married mother of two) inseminated with the sperm from Mr Stern, resulting in both the agreed to enter into a commercial surrogacy arrangement for surrogate and the father being biological parents of the child. an infertile couple in the US, she could not have imagined the Following the birth of the child, Ms Whitehead refused payment intense public scrutiny and hostility that would ensue.5 This and refused to hand over baby M to the Sterns. This resulted arrangement, for which she was to be paid £6,500 for carrying in a global media frenzy as the dispute entered hitherto unchar- the child, caused widespread moral and political outrage, leading tered US legal territory. Both parties became locked in a dispute to the child being made the subject of wardship proceedings to over who was the rightful parent of the child. Ultimately, the determine where the child, “baby Cotton”, should live. Courts awarded custody to the Sterns and visitation rights to The Surrogacy Arrangements Act 1985 (the SAA) was thus Ms Whitehead, but this case opened up the debate around the rushed through Parliament as a direct knee-jerk response to the ethical dilemmas presented by surrogacy arrangements in the “baby Cotton” scandal and relied heavily upon the recommen- context of the brave new world of IVF, and left an enduring legal dations of the Warnock Committee. While the terminology of legacy in the state of New Jersey. the SAA ensured that surrogacy agreements would be unen- Back in the UK, the recommendations of the Warnock forceable, it refrained from criminalising either the surro- Committee report still resonated and formed the basis of the gate or the commissioning parents by actually entering into updating legislation, in the form of the Human Fertilisation

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and Embryology Act 1990 (HFEA 1990).9 This Act created the parental responsibility for the child. However, this presumption Human Fertilisation and Embryology Authority, the world’s is rebuttable upon the surrogate proving, on the balance of prob- first independent regulator of fertility clinics and treatment and abilities, that the child is not a legitimate child of the marriage research of human embryos in the UK.10 and that there is no genetic link between the child and the father. Whilst HFEA 1990 permitted surrogacy on an altruistic The dramatic transformation in the British socio-political or compensatory basis, in a continuing effort to set down a and cultural landscape has meant attitudes to surrogacy have marker against commercial surrogacy, the compensation had shifted profoundly since 1985. This was evidenced in 2018, in the to be strictly reasonable and open to retrospective scrutiny and Government’s Department of Health and Social Care guidance, authorisation from the court. “Having a child through Surrogacy”, when the Government openly HFEA 1990 also saw the introduction of the novel legal endorsed surrogacy for the first time: “Surrogacy is increasingly instrument, the parental order. Bespoke to surrogacy, this has becoming an option for starting a family for people who are unable been aptly described by Theis J as a wholly transformative order to conceive a child themselves … the government supports surro- (equivalent to an adoption order), whereby the legal parenthood gacy as part of the range of assisted conception options.”12 of the surrogate is extinguished as full lifelong parental rights Surrogacy is increasingly seen as a socially and legally accept- are conferred upon the commissioning parents. able option for all, especially since January 2019, when single The incorporation of the Human Rights Act in 1998 into individuals also became eligible to apply for a parental order (the English law obliged the courts to consider, for the first time, HFEA 2008 (Remedial Order) 2018).13 Here the government the right to family life. Along with the advances in reproductive was obliged to respond to the declaration of incompatibility with technologies, this allowed couples to believe their right to have Human Rights Legislation, in Re Z (A child) (No 2) [2016] EWHC a family, even if they were unable to conceive themselves. As 1191 (Fam), by introducing remedial legislation to address the stated by Russell J in A & B (Children) (Surrogacy: Parental Orders: issue of single applicants wishing to obtain parental orders.14 time limits) [2015] EWHC 9ll Fam [39] to [41]:11 Now, when the court is tasked with considering the making “By virtue of the Human Rights Act 1998 the court has a of a parental order, if the court is satisfied that each of the duty to read and give effect to the law, as far as possible, requirements of s.54(1)-(8) HFEA 2008 are met, it must also in a way which is compatible with the children’s and the have regard to the lifelong welfare needs of the child under s 1 15 Applicants’ right to respect for family life under Article 8 Adoption and Children Act 2002. of the European Convention on Human Rights (ECHR). Further reform is within striking distance. In 2018, the Law The European Court of Human Rights has ruled in a Commission confirmed that the existing legislation would be number of cases going back many years from Marckx v subject to a comprehensive three-year review. The consulta- Belgium (1979-80) 3 EHRR 230, Johnston v Ireland (1986) 9 tion paper, published on 6 June 2019, suggested a new pathway 16 EHRR 203 and Kroon v Netherlands (1995) 19 EHRR 263, to legal parenthood for commissioning parents. The new that the right to respect for family life under Article 8 pathway would replace the current system where the intended ECHR includes the right to adequate legal recognition of parents must make an application for a parental order only biological and social family ties.” after the child has been born and do not become legal parents until the parental order is obtained, which can be many months Wholesale reform of the HFEA 1990 legislation came in later. This is designed to prevent the unsatisfactory scenario the form of the Human Fertilisation and Embryology Act where the judges are presented with a fait accompli. This new 2008 (HFEA 2008). HFEA 2008 constituted a major over- pathway would be heavily regulated and allow intended parents haul and update of the preceding 1990 HFEA legislation, which to become the legal parents at birth. Crucial protections for the was increasingly outdated and unfit for purpose. One of the surrogate would remain, in the form of a period of grace, during most significant legislative updates extended the availability of which she could object to the commissioning parents becoming parental orders to same-sex couples in a civil partnership, or the child’s legal parents. married (following the Marriage (Same Sex Couples) Act 2013), On this point, Munby J has made his views clear: “The ques- or those in an enduring relationship. tion has been raised whether the application for a parental order Notably, the overriding objective of this legislation was to could be issued in anticipation and before the child is born. The protect the legal rights of the surrogate by re-affirming the idea has its attractions and is probably worth exploring. For my long-established English legal principle that the woman who part, however, I would be adamant that we must retain the rule gives birth to the child is unequivocally the legal mother of the in section 54(7) that the surrogate mother cannot give effective child at birth, even if she was a gestational surrogate and thus had consent less than 6 weeks after the child’s birth. As in adop- no genetic affiliation to the child. Controversially, it is the surro- tion, it is an essential safeguard. So, although it may be appro- gate mother who is afforded the strongest protection: s.33 (1) priate to contemplate an application being made before birth, HFEA 2008 defines the legal mother of the child as the “woman I would oppose any suggestion that a parental order could be who is carrying the child or has carried the child as a result of made before birth.”17 However, Munby J acknowledges that the the placing in her of an embryo or of sperm and eggs”. Indeed, consensus is increasingly in favour of a pre-birth process rather if ever there was a doubt, the section continues that “she, and no than a post-birth process: other woman” is to be treated as the legal mother of the child. The biological mother, on the other hand, is regarded as being a “Now that, it might be thought, is probably right for two legal stranger to the child until the granting of a parental order. quite distinct reasons. One is you can only have, I suspect, Identifying the legal father in a surrogacy arrangement is, real protections if there is an effective process of regula- under this Act, a more intricate task. Whilst at common law, the tion pre-conception. And the reason for that, as we have biological father can rely upon the common law presumption of discovered in this country ... is that if you have a post-birth legitimacy, the Act provides for a number of circumstances in process and the judge is presented, if it is a judicial process, which legal parenthood will be instead vested in the non-bio- ex post facto with a live child who is living with X and Y, logical father or second parent. Where the surrogate is married, if you do not make the order, the consequences in a juris- the presumption of legitimacy takes precedence: the legal father diction like ours is that the child remains parentless and will be the surrogate’s husband and will, accordingly, be afforded maybe stateless in a complete limbo. Therefore, whatever

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attention you pay to welfare, however carefully the welfare The parties proposed the following additional provisions reports are put together, however much you try and focus (underlined) to the s 54 (1), (2), (4) (a) and (5) as follows: on this best interests of the child, I suspect … that the best “S 54 (1) On an application made by two applications (or protection for the best interests of the child is by pre-con- on an application brought on behalf of two applicants who, but for 18 ception rather than a post-birth process.” the fact that one of the applicants has died after the conditions in s However, until the Law Commission’s recommendations are 54(1)(a) were met, would have met the requirements of s54(1)(b) and formally adopted, the judges remain constrained by the existing s54(2)), (“the applicants”), the court may make an order outdated legislation. Such constraints have required the judges providing for a child to be treated in law as the child of the to be increasingly creative in their interpretation of the existing applicants if laws. As Munby J observes: “Our legislation in this country is (a) The child has been carried by a woman who is not elderly by any standards. It only works because of the judicial one of the applicants, as a result of the placing in ingenuity which goes into making rules which are not fit for her of an embryo or sperm and eggs or her artificial purpose actually work.”19 insemination, A striking example of such “judicial ingenuity” was demon- (b) The gametes of at least one of the applicants were strated in the case of X, Re [2020] EWFC 39, before Theis J. used to bring about the creation of the embryo, and (c) The conditions in subsections (2) to (8) are satisfied. X, Re [2020] EWFC 39 Section 54 (2) The applicants must be (or in the case of an application where an applicant has died were immediately prior to the This case concerned a child (X) born via surrogacy in distressing applicant’s death). and unusual circumstances. The child was conceived after an (a) Husband and wife, emotional journey for the intended parents (Mr and Mrs Y) via (b) Civil partners of each other; or IVF. An embryo was created using Mr Y’s sperm and an egg (c) Two persons who are living as partners in an donor, and carried by a married surrogate (Mrs Z) in a domestic enduring family relationship and are not within surrogacy arrangement. Tragically, and without warning, the prohibited degrees of relationship in relation to each intended father died four months before the child was born. other As a single applicant with no genetic affiliation to the child, Section 54 (3) – No amendment required Mrs Y was not eligible to bring an application for a parental Section 54 (4) At the time of the application and the order, under section 54 Human Fertilisation and Embryology making of the order Act 2008 (HFEA). (a) The child’s home must be with the applicant’s (or in Mrs Y had no option but to take the unprecedented step of the case of an application where an applicant has died applying for a parental order jointly with her deceased husband, and the application is brought on his or his behalf so that they could both acquire legal parenthood for the child and, by the surviving applicant, the child’s home must be therefore, both be included on the child’s birth certificate. This with the surviving applicant), and application, brought within the requisite six-month limit, had the (b) Either of both of the applicants must be domiciled in full support of the surrogate and her husband, Mrs and Mr Z. the United Kingdom or in the Channel Islands of the Mrs Justice Theis acknowledged that whilst all the welfare Isle of Man instincts of the court pointed towards a parental order being Section 54(5) At the time of the making of the order both made, as a matter of judicial procedure, she had to consider if the applicants must have attained the age of 18 (or in the the requirements of s.54 HFEA 2008 had been fulfilled, as the case where an applicant has died, the deceased applicant circumstances of this case (where the application is made by must have attained the age of 18 before his or her death) one intended parent, but on behalf of one surviving and one Section 54 (6), (7) and (8) – no amendment required.” deceased intended parent) had never before been contemplated by the court. Theis J observed that her judicial hands were tied: an appli- The intended mother wrote in her statement that: “It is incred- cation for a parental order is not discretionary, it is either ibly important to me to apply for a parental order. It is not just for granted or dismissed: there are no such range of orders which myself or for the respondents (who have never intended to be her the court may identify as what is “fair and reasonable in all the 20 legal parents), but because I want her to have the surname (Y) and circumstances of the case”. There was no alternative legis- to have her father recognised. It will break my heart for her, and lative scheme whereby Parliament addressed the legal relation- him, if it is not possible for (Mr Y) to be put on her birth certifi- ship of a child with his or her intended parents in circumstances cate. We have been through so much for so many years; … and the where the intended parent, who has the biological relationship egg donor and the respondents (the surrogate and her husband), all with the child, dies after the embryo transfer to the surrogate, gave so much to make this possible … She (X) deserves to have a in accordance with s 54, but prior to the making of a parental parental order which recognises him as her father, and I hope that order. Furthermore, the person most affected by this particular the court will find a way to make this possible.” legal lacuna was the child, X, itself. The submissions to the court focused on inviting the court to Theis J found that both Articles 8 (right to respect for private “read down” s.54 HFEA via the lens of s. 3 of the Human Rights and family life) and 14 (protection against discrimination) were Act 1998 (“So far as it is possible to do so, primary legislation engaged, despite the child being unable to establish a family life and subordinate legislation must be read and given effect in a with her biological father due to his untimely death. way which is compatible with the Convention rights.”), namely: Theis J then dismissed the applicability of an adoption order, 21 (i) the requirements for two applicants (s.54(1)); citing Munby J in Re X: “adoption is not an attractive solution (ii) the status of the applicants’ relationship (s 54 (2)(a)); given the commissioning father’s existing biological relationship (iii) the requirement for the child to have her home with the with X. As X’s guardian puts it, a parental order presents the applicants at the time of the application and the making of optimum legal and psychological solution for X and is preferable the order (s 54 (4)(a)); and to an adoption order because it confirms the important legal, (iv) the applicants to be over the age of 18 years at the time of practical and psychological reality of X’s identity.” Adoption the making of the order (s 54 (5)). would also have created something of a “legal fiction”, as s.67 of

Family Law 2021 16 Surrogacy: Where Are We Now?

the Adoption and Children Act 200222 states that the effect of an with s.54 (2)(c) HFEA 2008, which provides: “On an applica- adoption order is such that the adopted person is to be treated in tion made by two people (“the applicants”), the court may make law as if born as a child of the adopter, which would not prop- an order providing for a child to be treated in law as the child erly reflect the reality of the surrogacy arrangement in this case. of the applicants if [they are]…(c) two persons who are living as Furthermore, a child arrangements order or a special guard- partners in an enduring family relationship …” Furthermore, ianship order in favour of the intended mother would result in s.54 (4)(a) provides that the child’s home at the time of the appli- her only securing parental responsibility limited to X’s minority, cation and upon the making of any parental order must be with would not extinguish the child’s relationship with the surrogate the applicants, which was also not the case here. Keehan J was and her husband and would leave X’s biological father remaining directed in submissions to the decision of the ECtHR in Kroon v a legal stranger to the child. The Netherlands (1994) 19 EHRR 263, [1995] 2 FCR 28 where the Theis J concluded that in this instance, the reading down of court observed: the HFEA legislation would indeed provide the most appro- “Where the existence of a ‘family tie’ with a child has been priate order for a child born as a result of this type of arrange- established, the State must act in manner calculated to ment, as this provision was specifically created for a child born enable that tie to be developed and legal safeguards must as a result of a surrogacy arrangement such as in this case. There be established that render possible as from the moment of was no alternative order available to the court that could prop- birth or as soon as practicable thereafter the child’s inte- erly and accurately reflect X’s identity, including her relationship gration in his family.” with her father. and that: Furthermore, Theis J observed that, given the child’s connec- “In the court’s opinion, “respect” for “family life” tion with her biological father would have been safeguarded requires that biological and social reality prevail over legal in any other birth circumstances (either naturally or by way of presumption.” assisted conception), it would be discriminatory for the circumstances of her birth to prevent this. A failure of the law to recog- This led to Keehan J ruling that: “In light of their agreement nise the child’s connection with her biological father as a result and commitment to A, I am also satisfied that the parents are of her birth through a surrogacy arrangement would amount in an enduring family relationship.” Furthermore, he went on: to a breach of Article 14: the right to enjoy her Article 8 rights “The term ‘home’ must be given a wide and purposive interpre- without discrimination on the grounds of birth. tation. The authorities make clear that the term is not and should not be restricted to cases where the applicants live together To put it bluntly, the consequences of not making a parental under the same roof … I am satisfied that A has a ‘home’ with order in this case would have meant: there would be no legal rela- the mother and the father.” A parental order was duly made. tionship between the child and her biological father; the child would be denied the social and emotional benefits of recognition from that relationship; the child might be financially disad- Final Observations vantaged; and the child would not have the legal reality to match It is widely acknowledged that the current surrogacy laws are the day-to-day reality. no longer fit for purpose.23 Whilst judicial ingenuity and crea- Accordingly, Theis J found the only order that would confer tivity are increasingly relied upon to ensure the outdated legis- joint and equal parenthood on the intended mother and the lation does not prevent the welfare of the child being placed at intended deceased father was a parental order. the centre of any surrogacy arrangement, there is an increasing Theis J’s creative judicial interpretation in reading down the impatience to reset the current legislative landscape to accom- provisions in s. 54 (1), (2)(a), (4)(a) and (5) HFEA 2008 meant modate the demands of the modern world and enshrine the that the making of a parental order in these circumstances was anticipated proposals of the Law Commission with the compat- construed as not incompatible with the “underlying thrust of the ible legal pathways to parenthood. legislation being construed” and as implied would “go with the grain of the legislation”. Consideration of X’s welfare, as set out in ACA 2002, also required the court to grant a parental order, Endnotes as only that order would recognise X’s reality in a transformative 1. Keynote Presentation by Sir James Munby. Annual way as the legal child of her parents, Mr and Mrs Y. Conference of the Progress Educational Trust, 5 December However, not all surrogacy arrangements can be brought 2018. into the fold of s.54, resulting in much judicial exasperation. In 2. https://www.bmj.com/content/bmj/289/6439/238.full.pdf. AB v CD (Surrogacy) [2018] EWHC 1590, the biological parents 3. DHSS (1984), para 8.19. of twins born via surrogacy separated and divorced before 4. DHSS (1984), para 8.19. they applied for a parental order. Keehan J declared that he 5. https://www.independent.co.uk/life-style/health-and-fa- was “extremely frustrated, as no doubt are the [commissioning milies/uk-first-surrogate-mother-kim-cotton-carry- parents], that I am prevented, without any obvious good, legal someone-else-baby-law-change-a7645831.html. or policy reasons from making orders which explicitly recognise 6. s.2(2) SAA 1985. them as the legal mother and the legal father of these children”. 7. https://www.legislation.gov.uk/ukpga/1985/49. Keehan ultimately relied upon the court’s inherent jurisdiction 8. https://www.nytimes.com/1987/01/05/nyregion/surrogate- to place the children legally with their mother, but it was clear mother-battle-goes-to-trial.html and https://en.wikipedia. this was a most unsatisfactory legal conclusion and one which org/wiki/Baby_M. fell “far short of the transformative effect of a parental order”. 9. https://www.legislation.gov.uk/ukpga/1990/37/contents. This decision sits in stark contrast to the recent case of Re: 10. https://www.hfea.gov.uk/about-us/. A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam), again 11. https://www.familylawweek.co.uk/site.aspx?i=ed152279. before Keehan J. Here, a parental order was made despite the 12. https://www.gov.uk/government/publications/ commissioning parents being separated at the time of applying having-a-child-through-surrogacy. for a parental order (this was even more remarkable given the 13. ht t p s ://www.legislation.gov.uk/ukdsi/2018/97801111716 commissioning father had minimal indirect contact with the 60/contents. child, and the application was out of time). This was at odds

Family Law 2021 Payne Hicks Beach 17

14. The House of Commons Briefing Paper, April 2019: 19. Ibid. http://researchbriefings.files.parliament.uk/documents/ 20. As in S. 25 Matrimonial Causes Act 1973. CBP-8076/CBP-8076.pdf. 21. Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 15. S.1 Adoption and Children Act 2002. (Fam). 16. https://www.lawcom.gov.uk/surrogacy-reforms-to-im- 22. https://www.legislation.gov.uk/ukpga/2002/38/contents. prove-the-law-for-all/. 23. Sir Nicholas Green, Chair of the Law Commission: 17. Keynote Presentation by Sir James Munby. Annual https://www.lawcom.gov.uk/surrogacy-reforms Conference of the Progress Educational Trust, 5 December -to-improve-the-law-for-all/. 2018. 18. The Way Forward – General Discussion, by Sir James Munby. International Surrogacy Forum 2019.

Family Law 2021 18 Surrogacy: Where Are We Now?

Sarah Williams is a Legal Director in the Payne Hicks Beach Family department, and the Head of the Surrogacy, Adoption, Fertility and Modern Family law practice. A specialist children lawyer, she spent the first decade of her career as a practising Family Barrister at a leading set of chambers representing parents, children, guardians and the Official Solicitor. Sarah was appointed as Junior Counsel to the Crown by the Attorney General after a highly competitive selection process. Prior to joining Payne Hicks Beach, Sarah was in-house counsel for a US firm where she worked extensively on an ultra-high-net-worth Californian divorce and contested children proceedings. Thereafter she joined a specialist family law firm where she developed her expertise in complex international surrogacy, fertility and modern family law, representing internationally famous clients from the fields of sports and media. “Possessed of that winning combination of intelligence, capacity for hard work and charm,” Sarah is adept at handling her cases with the utmost discretion and sensitivity. She is “a true fighter in pursuit of her clients’ interests” and determined to get the very best outcome for them. She is often called to comment on the latest legal developments by the national press and makes regular contributions to specialist family law journals. Sarah is a member of the Family Law Bar Association, Association of Lawyers for Children and both the Adoption Committee and the Assisted Reproduction Technology Committee of the American Bar Association. She also sits on the Bar Liaison Committee and is an active member of the Mentoring Scheme for pupil barristers at Inner Temple.

Payne Hicks Beach Tel: +44 20 7465 4300 10 New Square, Lincoln’s Inn Email: [email protected] London, WC2A 3QG URL: www.phb.co.uk United Kingdom

Described as the “strongest family law team in the country” (Chambers UK), the team at Payne Hicks Beach has “an outstanding reputation and vast experience in representing UHNW clients in high-profile family law cases” (Chambers HNW). The team has an unmatched reputation in all areas of family and matrimonial law, including divorce, separation, civil partnerships, cohabitation, asset protection, pre- and post-nuptial agreements, financial disputes, financial proceedings, financial provision for children as well as specialist bespoke advice on surrogacy, adoption, fertility and modern family. The strength and depth of expertise of the team, coupled with the discrete and consistently exemplary levels of service, is reflected by top-rated rank- ings across industry directories, including Chambers HNW, Chambers UK and The Legal 500 UK. www.phb.co.uk

Family Law 2021 Chapter 4 19

Austria Austria

Rechtsanwaltskanzlei Dr. Alfred Kriegler Dr. Alfred R. Kriegler

12 Divorce Divorce may be applied for if marital relations have been terminated for three years and the marriage has irretrievably broken down. Hardship grounds may again be applied where 1.1 What are the grounds of jurisdiction for divorce that divorce would cause more hardship to the respondent than proceedings? For example, residence, nationality, a dismissal of the divorce petition to the petitioner. Again, the domicile, etc.? divorce must be granted if conjugal relations are not resumed within six years. In this type of divorce, the respondent may The Act governing the jurisdiction of Austrian courts (JN) apply for a finding in the divorce decree that the petitioner was sets out the international jurisdiction of the Austrian courts. at fault in the breakdown of the marriage. This is important for Austrian courts have jurisdiction in cases of divorce, annulment older spouses because after the ex-spouse’s death, an ex-spouse or nullity of marriage and declaratory judgments relating to the who is not at fault will be entitled to a full widower’s pension validity of a marriage if one of the following conditions is met: regardless of the amount of maintenance previously paid. ■ One of the parties is an Austrian national. Divorce by mutual consent requires conjugal relations to have ■ The respondent (or at least one respondent, where a peti- ended for at least six months. Further requirements are that: tion for nullity is brought by both spouses or both regis- ■ the marriage has irretrievably broken down for at least six tered partners) has his or her habitual residence in Austria. months; ■ The petitioner: ■ a joint petition for divorce is to be submitted; and ■ has his or her habitual residence in Austria and the ■ the spouses must draw up a written agreement on matters last common address and the habitual residence of of custody and visitation rights for children from the either spouse or registered partner was located in marriage, child support and maintenance of the ex-spouse, Austria; and/or as well as for the distribution of matrimonial property. ■ is stateless or was an Austrian national at the time the marriage or registered partnership was entered into. 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an uncontested divorce? The parties have to attend court. It is not possible to have a “private” divorce without any court involvement. Additionally, Austrian law draws a distinction between divorce arising from agreements for a divorce by consent prepared in mediation must fault, divorce for other reasons and divorce by mutual consent, be signed in court. as follows: In a fault divorce, one spouse must have committed serious 1.4 What is the procedure and timescale for a divorce? wrongdoing such as adultery, physical violence or mental cruelty, or dishonest or immoral conduct, causing the marriage to break It depends on the kind of divorce. A divorce by consent takes down irretrievably. The spouse committing such wrongdoing some days or weeks. Considering that the division of assets cannot petition for divorce as this would be morally unjustified. takes place only after the divorce proceeding, one can expect on A petition for divorce is not admissible on these grounds if the average one to two years, if no settlement takes place. wrongdoing was forgiven or not perceived as destructive to the marriage. Divorce must be petitioned for within six months 1.5 Can a divorce be finalised without resolving other from the time when the reason for divorce came to the attention associated matters? For example, children and finances. of the other spouse, and is no longer admissible if 10 years have passed since the reason for divorce became known. Yes, that is possible. Divorce may also be petitioned for if the marriage has irretrievably broken down due to one spouse’s behaviour resulting from a mental disorder, or if one spouse suffers from a mental 1.6 Are foreign divorces recognised in your jurisdiction? illness or an infectious disease or medical condition which If so, what are the procedural requirements, if any? cannot be expected to be cured within the foreseeable future. A petition for divorce will not be morally justified in case of undue The provisions governing the recognition of divorces hardship for the spouse concerned. After six years of judicial pronounced abroad are set out in the Austrian Act on Private separation, a divorce decree must be granted if requested. International Law (Internationales Privatrecht-Gesetz (IPRG)).

Family Law 2021 20 Austria

The following will be recognised in Austria, provided they 1.8 Can divorce proceedings be stayed if there are are final and cannot be appealed and there is no other reason to proceedings in another country? refuse recognition: ■ A foreign decree for judicial separation without divorce. It depends on the country and Interstate Treaties. ■ A divorce decree. As Austria is an EU member, Austria must apply the relevant ■ The annulment of a marriage. EU regulations concerning jurisdiction and the recognition and ■ A declaratory judgment as to whether a marriage does or enforcement of judgments in matrimonial matters and matters does not validly exist. of parental responsibility in cases involving other Member States ■ Recognition may be adjudicated separately as a preliminary question without requiring special proceedings. (Brussels II Regulation). Recognition must be refused if: ■ The decision or decree clearly contradicts the fundamental 22 Finances on Divorce values of the Austrian legal system (ordre public). ■ f One o the spouses was not granted due process of law 2.1 What financial orders can the court make on unless he or she evidently agreed to the decision or decree. divorce? ■ The decision is incompatible with an Austrian precedent, or an earlier decision (in relation to the particular case) was After a divorce, annulment or declaration of nullity of the made which satisfied the requirements of recognition in marriage, the distribution of matrimonial savings and matrimo- Austria whereby the spouses were separated or divorced or nial assets and articles for daily use may be made by the spouses the marriage was annulled or its valid existence or non-ex- by consent or can be ordered by the court at the request of one istence was declared. spouse. ■ The issuing authority would not have had international The request for distribution must be submitted within one jurisdiction if Austrian law were applied. year from the date on which the dissolution of the marriage Recognition does not fall within the remit of the Austrian became final and could not be appealed. Federal Ministry of Justice, as was the case in former times. Each authority must clarify the preliminary question of whether there exists an impediment to the marriage of the (future) 2.2 Do matrimonial regimes exist and do they need to spouses or not. be addressed by the court on divorce? Is there a default As Austria is an EU member, Austria must apply the relevant matrimonial regime? EU regulations concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters The statutory property regime of the community of surplus is of parental responsibility in cases involving other Member stated by Austrian law; however, nuptial agreements can foresee States (Brussels II Regulation). Judgments pronounced in one another matrimonial regime. Member State will be recognised in the other Member States without requiring special proceedings. Reasons for refusing recognition are similar to those stated in Austrian national law. 2.3 How does the court decide what financial orders to Recognition must be refused in the following cases: make? What factors are taken into account? ■ If recognition clearly contradicts ordre public in the Member State where it is applied for. The fundamental idea behind the distribution of matrimonial ■ If the respondent, who did not enter an appearance, was property is the equitable division of the assets acquired during not served with the writ instituting the proceedings or an the marriage between the spouses. Fault is not a decisive crite- equivalent writ in a timely manner and in such a way as to rion for the distribution of assets. However, the spouse who is enable him or her to defend herself or himself, unless it is not at fault can be given a right of first refusal when choosing found that he or she clearly agreed to the judgment. objects to be distributed. ■ If the judgment is incompatible with a judgment Companies and trusts must not be divided. Otherwise the pronounced in proceedings involving the same parties in court can transfer assets or oblige one spouse to pay a lump sum the Member State in which recognition is applied for. to the other spouse. ■ If the judgment is incompatible with an earlier judgment pronounced in proceedings involving the same parties in another Member State or a third country, provided that the 2.4 Is the position different between capital and maintenance orders? If so, how? earlier judgment fulfils the requirements for recognition in the Member State where recognition was applied for. Maintenance orders depend on fault, while division of assets does not. 1.7 Does your jurisdiction allow separation or nullity proceedings? 2.5 If a couple agrees on financial matters, do they Judicial separations are not possible under Austrian law. need to have a court order and attend court? A marriage can be declared a nullity if: ■ The marriage was not entered into in the required form. Yes, if the couple wants a divorce. ■ One spouse did not have legal capacity or the ability to make informed decisions at the time of the marriage. 2.6 How long can spousal maintenance orders last and ■ The marriage was exclusively entered into to assume the are such orders commonplace? other spouse’s name or citizenship. ■ One spouse is already married or the spouses are relatives by blood. Spousal maintenance can be lifelong. Such orders are common- The consequences are the same as after a divorce. place in Austria.

Family Law 2021 Rechtsanwaltskanzlei Dr. Alfred Kriegler 21

2.7 Is the concept of matrimonial property recognised At the same time, the jurisdiction of the Austrian courts is in your jurisdiction? governed by the relevant EU regulation in cases involving EU Member States having signed the Council Regulation (EU) Matrimonial savings, assets and articles for daily use must be 2016/1104 of 24 June 2016 implementing enhanced cooperation divided up. These are defined as movable and immovable prop- in the area of jurisdiction, applicable law and the recognition erty used by both spouses during the marriage, for example and enforcement of decisions in matters of the property conse- the household effects or the matrimonial home. Matrimonial quences of registered partnerships. savings include investments usually held for utilisation and acquired during the marriage, in particular cash, savings 2.8 Do the courts treat foreign nationals differently on deposits, securities or art objects. divorce? If so, what are the rules on applicable law? Can Related debts, if any, must be set off against assets. Only the court make orders applying foreign law rather than assets acquired during the marriage will be distributed. the law of the jurisdiction? Two dates relevant to deciding whether an asset will be subject to distribution are: The provisions governing applicable law for foreign nationals ■ The date of the marriage. are set out in the IPRG. ■ The date when marital relations were terminated. As Austria is an EU member, Austria must apply the relevant The cut-off date for valuation of the distributable objects is EU regulations. the date of the first-instance judgment. The following are not subject to distribution: ■ Assets that one spouse brought to the marriage, inherited 2.9 How is the matrimonial home treated on divorce? or received as a gift. ■ Assets for the sole use of one spouse. If one spouse brought the matrimonial home to the marriage, ■ Assets for the sole exercise of an occupation. inherited it or received it as a gift, it will be subject to distribu- One special feature of Austrian law is that assets belonging tion if the other spouse depends on it because he or she has no to a company or shares in a company are not subject to distribu- other adequate housing and needs the home to satisfy his or her tion unless they are held for investment purposes. If one spouse brought the matrimonial home to the marriage, inherited it or current housing needs, or if a child from the marriage depends received it as a gift, it will be subject to distribution if the other on the continued use of the home. The same applies to house- spouse depends on it because he or she has no other adequate hold effects such as furniture and household articles for daily housing and needs the home to satisfy his or her current housing use, if the other spouse depends on being able to use them. needs, or if a child from the marriage depends on the continued use of the home. The same applies to household effects such 2.10 Is the concept of “trusts” recognised in your as furniture and household articles for daily use, if the other jurisdiction? If so, how? spouse depends on being able to use them. According to recent decisions, gifts from relatives which have not been expressly No, trusts are not recognised in Austria. earmarked will be allocated to the spouse related to the giver. Gifts one spouse made to the other will be included in the distributable assets. If assets brought to the marriage, inherited 2.11 Can financial claims be made following a foreign or received as gifts are sold and other assets are bought from divorce in your jurisdiction? If so, what are the grounds? the proceeds, or if the proceeds are subsequently deposited in a savings account, their equivalent will remain excluded from Yes. As Austria is an EU member, Austria applies the relevant distribution, if it is clearly defined. EU regulations. Distribution must be equitable and the contributions of each spouse to the acquisition of matrimonial assets, the best interests of the children and existing debts must be taken into account. 2.12 What methods of dispute resolution are available Household work, as well as care-giving and the upbringing of to resolve financial settlement on divorce? E.g. court, children, will be equivalent to the financial contributions of the mediation, arbitration? breadwinning spouse. The ratio applied in most decisions is 1:1. If, during the two years prior to the termination of marital After a divorce, annulment or declaration of nullity of the relations or to the divorce petition, annulment or declaration marriage, the distribution of matrimonial savings and matrimo- of nullity of the marriage, one spouse has reduced the matri- nial assets and articles for daily use may be made by the spouses monial assets without the other spouse’s consent in a manner by consent or can be ordered by the court at the request of one inconsistent with conjugal life during the marriage, the value of spouse. the missing assets will be included in the distribution. The same applies if matrimonial assets were invested in a company. This provision helps avoid disadvantages for one spouse by 32 Marital Agreements the other’s tampering with matrimonial assets. In the course of the distribution of matrimonial assets, the 3.1 Are marital agreements (pre- and post-marriage) court may also order the transfer of ownership and other rights enforceable? Is the position the same if the agreement is in property from one spouse to the other. If the property in a foreign agreement? question is owned by a third party, transfer is contingent on the latter’s consent. Matrimonial savings may also be transferred. The situation in Austria differs from that in other countries as The consent of any third party who may be involved is not future spouses rarely enter into pre-nuptial agreements. Related required if the property in question is the matrimonial home. If legislation was reformed with effect from 1 January 2010 to there is no other way for a distribution to be made, the court may facilitate entry into pre-nuptial agreements. order one spouse to pay compensation to the other.

Family Law 2021 22 Austria

Pre- and post-nuptial agreements can be used for arrange- 4.4 Are same-sex couples permitted to marry or enter ments relating to: other formal relationships in your jurisdiction? ■ The legal consequences of marriage, maintenance and contributions to earnings of the spouse’s death. Since 1 January 2019, same-sex couples can marry or enter into ■ The distribution of marital property and other arrange- a registered partnership. ments in the event of separation or divorce. Until recently, there was no legal basis for same-sex partnerships Pre- and post-nuptial agreements may only be entered into in Austria. This situation changed with the coming into effect of by spouses or fiancées and are contingent on entering into the Act on Registered Partnerships (Eingetragene Partnerschaft-Gesetz marriage. 2009 (EPG)). Since 1 January 2010, there has been a legal basis Under the Austrian Act on Private International Law, formal for the cohabitation of homosexual couples, which does, however, requirements for pre- and post-nuptial agreements are subject to strongly differ from the legal basis of marriage in some respects. the laws of the country where the agreement was entered into. If The main differences between marriage and a registered part- a valid pre- or post-nuptial agreement was entered into abroad, it nership are: is recognised in Austria. ■ the Act on Registered Partnerships does not oblige the partners to mutual faithfulness; 3.2 What are the procedural requirements for a marital ■ the dissolution of a registered partnership is easier than agreement to be enforceable on divorce? obtaining a divorce; ■ dishonest or immoral conduct is not defined as serious wrongdoing entitling a partner to demand the dissolution Any agreement only done by advocates is not enforceable per se of the partnership on grounds of fault. If a registered part- in Austria. It needs either a court’s settlement, an arranged deci- nership has broken down and cohabitation has ceased for sion or a notary’s formal act with an enforcement clause to lead three years, either partner may apply for dissolution, and directly to enforcement. the application must be granted; and ■ in divorce law, there is a hardship clause, stating that 3.3 Can marital agreements cover a spouse’s a divorce petition must be rejected if the divorce would financial claims on divorce, e.g. for maintenance cause more hardship to the respondent than a dismissal or compensation, or are they limited to the election of the divorce petition to the petitioner; in such cases, the of the matrimonial property regime? Can they deal marriage will continue for another three years. with financial claims regarding children, e.g. child maintenance)? 52 Child Maintenance

Maintenance and compensation – for both spouses and children 5.1 What financial claims are available to parents on – can be subject to a settlement and can also be included in a behalf of children within or outside of marriage? marital agreement. These are limited by the withdrawal of every maintenance obligation for the future and notwithstanding any One parent can claim maintenance (that is, monthly regular change of circumstances. payments) for the child and payments for the child’s extraordinary needs (“Sonderbedarf ”) that cannot be met by the mainte- 42 Cohabitation and the Unmarried Family nance payments. There are no claims available for capital or transfer of prop- 4.1 Do cohabitants, who do not have children, have erty for the child. financial claims if the couple separate? What are the grounds to make a financial claim? 5.2 How is child maintenance calculated and is it administered by the court or an agency? No, they do not have financial claims. The rights and obligations of cohabiting partners are not The amount of maintenance will depend on the personal circum- enshrined in legislation in Austria, with the exception of a few stances of the parents as well as the abilities, talents and devel- provisions in secondary laws where non-marital cohabitation is opment opportunities of the children. Over a period of time, equivalent to marriage. Legal provisions governing the dissolu- the courts have developed precedents setting out the percent- tion of marriage are not applicable to non-marital cohabitation. ages of the average net income of the parent that should be paid Each partner remains the owner of their assets when cohab- as maintenance for the children, although consideration is also iting. In case of separation, the general provisions on assets, given to the other maintenance obligations of such parent. The gains and damages apply. Cohabiting partners are not obliged maintenance amount ranges from 16% to 22% of the net income to pay maintenance to each other. of the parent with deductions of 1% for a child under 10 years old, 2% for a child over 10 years old, and of 2% to 3% for a spouse depending on her/his income. The maintenance amount 4.2 What financial orders can a cohabitant obtain? is, however, subject to maximum caps. The average maintenance needs of various age groups are published every year. As Cohabitants cannot obtain any financial orders. a matter of principle, monthly maintenance should not amount to more than two-and-a-half times the average need. Internationally, this maintenance limit is not very high if the 4.3 Is there a formal partnership status for cohabitants parent obliged to pay maintenance has a large income. Apart (for example, civil partnerships, PACS)? from entitlement to normal maintenance, children may also have special requirements. These are additional financial needs There is no formal partnership status available for cohabitants. exceeding the general average of what children of the same age need in Austria. Such special requirements must be extraordinary and urgent in nature. They include expenses for orthodontic

Family Law 2021 Rechtsanwaltskanzlei Dr. Alfred Kriegler 23

treatment, costs of medical treatment or special education to 6.3 What is the duration of children orders (up to the foster the talents of the children. The higher the normal main- age of 16 or 18 or otherwise)? tenance payments, the lower the additional payments for special requirements will be. Children orders last until the age of 18. The obligation to pay maintenance ends once the child is able to maintain themselves. If parents are unable to fulfil their maintenance obligations, the grandparents must take care of 6.4 What orders can the court make in relation to maintenance. children? Does the court automatically make orders in relation to child arrangements in the event of divorce? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their If there is no agreement between the parents about custody or children? For example, can a child seek maintenance on the “first home”, the court has to decide. during university?

The obligation to pay maintenance ends once the child is able to 6.5 What factors does the court consider when making maintain themselves. If parents are unable to fulfil their mainte- orders in relation to children? nance obligations, the grandparents must take care of maintenance. The duration of maintenance payments for a child depends § 138 ABGB (Austrian Civil Code) states 12 factors: on how long the child actively pursues an appropriate educa- (1) appropriate care, in particular for food, medical and sani- tion, which will be determined by an individual court decision. tary care, accommodation and careful upbringing of the However, maintenance payments for students generally end at child; the age of 25/26. (2) care and security for the physical and psychological integrity of the child; 5.4 Can capital or property orders be made to or for the (3) appreciation and acceptance of the child by both parents; benefit of a child? (4) promotion of the potential, skills, inclinations and development possibilities of the child; There are no claims available for capital or transfer of property (5) taking into account the voice of the child in correlation to for the child. his or her understanding and ability to form his or her own opinion; 5.5 Can a child or adult make a financial claim directly (6) avoiding the risk of the child suffering through the enforce- against their parents? If so, what factors will the court ment of any measure that is against his or her wishes; take into account? (7) avoiding the risk of the child suffering abuse from important caregivers or witnessing violence; A minor child is represented by one or two parents or another (8) avoiding the risk of the child being illegally moved, entity (for example, a child welfare entity). detained, or otherwise harmed; A full age child can claim maintenance as long as he/she (9) ensuring reliable contact of the child with both parents actively pursues an appropriate education. and important caregivers and secure ties to these persons; Factors for maintenance for children are the income of the (10) avoidance of situations in which the child is involved in parent, the age of the child as well the number of maintenance conflicts of loyalty or is made to feel guilty; obligations of that parent. (11) maintaining the rights, claims and interests of the child; If a full age child has no capital, he/she can also ask for a lump and sum from his/her parents when he/she gets married. (12) the living conditions of the child, his or her parents and surrounding persons. 62 Children – Parental Responsibility and Custody 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? 6.1 Explain what rights of custody both parents have in your jurisdiction, whether (a) married, or (b) unmarried? The parent of the “first order” is allowed to leave the territory of Austria with a minor. However, the other parent must (a) Married couples/parents have joint custody. be informed and has the right to object. If the court does not In the case of a divorce or separation of the parents, both decide otherwise, relocation is not considered child abduction. parents keep joint custody. However, a “first home” of the child must always be agreed or stated, where the child spends more than 50% of their time. The other 6.7 Is there a presumption of an equal division of time parent must pay money to the parent of the “first home”. between separating or divorcing parents? Otherwise, both parents can represent the child. If there is no agreement on the “first home”, the court will decide. There is no presumption of an equal division of time. (b) Unmarried couples/parents do not have joint custody by law, only by consent (“Vereinbarung”). For unmarried 6.8 Are unmarried parents treated in the same way couples, the mother has sole custody by law. as married parents when the court makes orders on separation or divorce? 6.2 At what age are children considered adults by the court? Yes, unmarried parents are treated in the same way as married parents. The court considers children to be adults at the age of 18.

Family Law 2021 24 Austria

6.9 Is a welfare report prepared by an independent 7.5 In practice, how rare is it for the custodial parent to professional or is the decision taken by the Judge alone? be allowed to relocate internationally/interstate? If so, does the child meet the Judge? Relocation depends on the arguments as to the best interest of The decision is taken by the judge alone but before there is a the child. The closer, the better. Relocation to another conti- welfare report prepared by an independent professional. The nent is difficult. judge has to meet the children personally – if he makes a decision – after the age of 10. Smaller children are personally asked 7.6 How does your jurisdiction deal with abduction during the welfare report. cases? For example, is your jurisdiction a party to the Hague Convention?

6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a Austria is a signatory party to the HCCH Convention on the lawyer? Civil Aspects of International Child Abduction 1980 (the Hague Child Abduction Convention). Likewise, Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of The Jugendamt is a public entity established for children’s welfare, judgments in matrimonial matters and the matters of parental representing children. Children from the age of 14 years onward responsibility, and its provisions governing child abduction, are can file an application on their own or choose a lawyer. applicable in Austria. The Familiengerichtshilfe is another public entity consisting of Abduction cases are heard in the District Courts with special psychologists, which aims to help find amicable solutions. jurisdiction (that is, the District Courts of the place where the The judge can appoint a Kinderbeistand – a person to give a Court of Appeal is sited). Since 1 September 2017, some proce- young child a voice in the proceeding. dure rules are laid down in the Non-Contentious Procedural Act (AußStrG), rather than the Hague Child Abduction Convention 6.11 Do any other adults have a say in relation to the Implementation Act. These rules deal with the most important arrangements for the children? E.g. step-parents or issues, such as swift procedure, discovering whereabouts with grandparents or siblings. What methods of dispute police assistance, maintaining or rebuilding contact between resolution are available to resolve disputes relating to the parent that is left behind and the child, enforceability and children? enforcement of return orders, and estoppel of exceptions at the enforcement stage. No. The judge can send the file to the Familiengerichtshilfe to work out an amicable solution concerning contact. 82 Overview

72 Children – International Aspects 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years?

7.1 Can the custodial parent move to another state/ country without the other parent’s consent? The introduction of same-sex marriage has been the only significant innovation in the last two years.

The parent of the “first order” is allowed to leave the territory of Austria with a minor. However, the other parent must 8.2 What impact, if any, has the COVID-19 pandemic had on family law in your jurisdiction to date, and is be informed and has the right to object. If the court does not likely to have over the next 12 months? decide otherwise, relocation is not considered child abduction. It is still unclear whether or not COVID-19 was a valid reason to 7.2 Can the custodial parent move to another part of suspend contact rights. The Supreme Court has not yet decided. the state/country without the other parent’s consent? Considering the economic crisis, there will likely be many petitions for maintenance reductions. Yes, that is possible. 8.3 To what extent and how has the court process and other dispute resolution methods for family law been 7.3 If the court is making a decision on relocation of a adapted in your jurisdiction in light of the COVID-19 child abroad, what factors are taken into account? pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to remain after the COVID-19 crisis has passed? Please refer to the factors listed in § 138 ABGB, as stated in question 6.5. In case of domestic violence, courts could be contacted by email, and some virtual hearings have taken place. These changes are 7.4 If the court is making a decision on a child moving not permanent. to a different part of the state/country, what factors are taken into account? 8.4 What are some of the areas of family law which you think should be looked into in your jurisdiction? Please refer to the factors listed in § 138 ABGB, as stated in question 6.5. The computation of maintenance for children will be reformed and will be made much easier. Double residence is not yet foreseen by law, only in some cases by the courts; this will change. The acknowledgment of paternity shall be automatic.

Family Law 2021 Rechtsanwaltskanzlei Dr. Alfred Kriegler 25

Dr. Alfred R. Kriegler has specialised in family law for 30 years (national and international). He has a doctorate in jurisprudence from the University of Vienna (Austria), a Master’s in Business Administration from INSEAD at Fontainebleau (France) and is admitted to the Bar in Vienna. His areas of practice are family law (all areas), inheritance law, mediation, collaborative law and arbitration. He was voted Austria’s best family lawyer. He is the former president of the European Chapter of the International Academy of Matrimonial Lawyers (IAML) (2012 to 2014) – now the International Academy of Family Lawyers (IAFL) – a former member of the executive committee and regional delegate to the European Lawyers’ Association, a founding member of the European Institute for Human Rights for Lawyers (IDHAE) and a founder and honorary president of the Lawyers’ Association of Vienna (Anwaltsclub). He speaks German, English, French, Italian and Spanish.

Rechtsanwaltskanzlei Dr. Alfred Kriegler Tel: +43 1 533 42 65 Hoher Markt 1 Email: [email protected] 1010 Vienna URL: www.divorce.at / www.kriegler.at Austria

Rechtsanwaltskanzlei Dr. Alfred Kriegler is a law firm specialist in family law and has been ranked as a leading law firm for family law for many years. Dr. Kriegler, who opened his own firm in 1994, was elected the best Austrian family lawyer. The firm is an independent law boutique focusing on all aspects of family law, wills and inheritances, domestic and international, both in relation to finance and children. www.divorce.at / www.kriegler.at

Family Law 2021 26 Chapter 5 Bermuda Bermuda

Wakefield Quin Limited Cristen Suess

12 Divorce 1.4 What is the procedure and timescale for a divorce?

1.1 What are the grounds of jurisdiction for divorce Once the Petition, together with the accompanying docu- proceedings? For example, residence, nationality, ments, is presented (filed) to the Court, the Petitioner is domicile, etc.? required to serve all of the documents on Respondent (and/or Co-Respondents). Upon service, the Respondent has eight days Section 2 of the Matrimonial Causes Act 1974 provides that the (or 16 days if service is to occur outside of the jurisdiction) to Supreme Court of Bermuda shall only have jurisdiction to enter- indicate, by filing the Acknowledgment of Service, any inten- tain proceedings for divorce or judicial separation if either of the tion to defend the divorce. If the Respondent does not intend parties to the marriage were ordinarily a resident in Bermuda for to defend the divorce, or fails to file the Acknowledgment of the period of one year ending with the date that the proceedings Service, the Petitioner will file their Request for Directions for were issued or alternatively that either party to the marriage is Trial (undefended) to have the divorce listed for a hearing, when domiciled in Bermuda. the Court will grant the Decree Nisi. Six weeks after the hearing of the undefended Petition, the Petitioner will be at liberty to 1.2 What are the grounds for a divorce? For example, obtain the Decree Absolute, completing the divorce and formally is there a required period of separation, can the parties dissolving the marriage. The timeframe for undefended divorce have an uncontested divorce? typically takes approximately three to five months to complete. Should the Respondent (and/or Co-Respondent) indicate on Section 5 of the Matrimonial Causes Act 1974 outlines the the Acknowledgment of Service that the divorce will be defended, grounds of divorce which a party to a marriage must prove. The they must file and serve their answer within 21 days after filing Court, when making a finding that the marriage in question has the Acknowledgment of Service. Thereafter the Petitioner broken down irretrievably, is only permitted to do so when one may file any reply within 14 days, in addition to a Request for of the following five facts are proven: Directions for Trial (defended). The matter will then be listed for (1) the Respondent’s adultery; a hearing for adjudication. The timeframe for a defended divorce (2) that the Respondent has behaved in such a way that the can range from six months to one year to complete. Petitioner cannot reasonably be expected to live with the Respondent (commonly referred to as “unreasonable 1.5 Can a divorce be finalised without resolving other behaviour”); associated matters? For example, children and finances. (3) the Respondent’s desertion for a period of two continuous years; (4) the parties have lived apart for a period of at least two A divorce can be finalised without resolving ancillary matters, years and the Respondent consents to the decree being which are usually adjourned to a future date to be determined; granted in favour of the Petitioner (commonly referred to however, if there are children of the marriage, the Court must as “two years’ separation with consent”); or be satisfied that the arrangements for the welfare of child/chil- (5) the parties have lived apart for a continuous period of dren are at least “the best that can be devised in the circum- at least five years immediately prior to the issuance of stances”, otherwise section 45 of the Matrimonial Causes Act proceedings. 1974 precludes the Court from granting the Decree Absolute.

1.3 In the case of an uncontested divorce, do the 1.6 Are foreign divorces recognised in your parties need to attend court and is it possible to have a jurisdiction? If so, what are the procedural requirements, “private” divorce, i.e. without any court involvement? if any?

If a divorce is uncontested, upon completion of the Acknow Foreign Divorces are indeed recognised in accordance with the ledgment of Service indicating that the divorce is not defended, provisions of the Recognition of Divorces and Legal Separations the Respondent is not strictly required to attend Court, unless Act 1977. matters of ancillary relief are in dispute. There is no statutory mechanism in place for a “private” divorce as the Court has exclusive jurisdiction to dissolve a marriage.

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1.7 Does your jurisdiction allow separation or nullity (f) the contributions made by each of the parties to the proceedings? welfare of the family, including contributions made by looking after the home or caring for the family; and (g) the value to either party of the marriage of any benefit The Matrimonial Causes Act 1974 does provide a mechanism for (i.e. pension), which by reason of the dissolution of the parties to pursue proceedings for Judicial Separation (section 21) marriage that party will lose the chance of acquiring, and Nullity (sections 15 and 16). and the financial resources of the parties, including their income and assets. 1.8 Can divorce proceedings be stayed if there are The Court’s objective, when considering the provisions of proceedings in another country? section 29, is to place the parties in the position that they would have been had the marriage not broken down, to the extent that The Court, in accordance with section 2(6) of the Matrimonial it is practicable to do so. Causes Act 1974, has the discretion to stay proceedings for divorce if there is a concurrent action pending before a Court 2.4 Is the position different between capital and in another jurisdiction. Schedule 1 of the Matrimonial Causes maintenance orders? If so, how? Act outlines the criteria in which the Court may choose to exercise that discretion, specifically when the validity or subsistence As the Court considers and determines each case upon the facts of the marriage is being challenged before a foreign Court, or if outlined in section 29 of the Matrimonial Causes Act 1974, and on balance of fairness (and convenience), the Court determines circumstances of the parties, there is no material difference that it would be appropriate for the foreign proceedings to be between a capital or maintenance order, save that the Court does disposed of before taking any further steps. not currently possess the power to unilaterally order the sale of matrimonial property under the Matrimonial Causes Act 1974. 22 Finances on Divorce

2.5 If a couple agrees on financial matters, do they 2.1 What financial orders can the court make on need to have a court order and attend court? divorce?

If the parties have reached an agreement with respect to the The Court has the power to make one, or more, of the following disposal of all financial matters, it is common practice to draft orders within divorce proceedings: and file a consent order, detailing the agreement reached between ■ periodical payments in favour of a party to a marriage; the parties. Each party (or their attorneys) will execute and file ■ secured periodical payments in favour of a party to a the consent order for the Court to sign. Upon execution by the marriage; Court, the agreement becomes a formal order of the Court. ■ a lump-sum provision in favour of a party to a marriage; ■ periodical payments for the benefit of (and/or directly to) a child of the family; 2.6 How long can spousal maintenance orders last and ■ secured periodical payments for the benefit of (and/or are such orders commonplace? directly to) a child of the family; or ■ a lump-sum provision for the benefit of (and/or directly An order for periodical payments shall begin no earlier than to) a child of the family. the date of the application and shall extend for such term as the Court considers appropriate but will come to an end on the death or remarriage of the party in whose favour the order is made. 2.2 Do matrimonial regimes exist and do they need to be addressed by the court on divorce? Is there a default matrimonial regime? 2.7 Is the concept of matrimonial property recognised in your jurisdiction? Matrimonial regimes do not exist in Bermuda. The principle of Matrimonial Property is recognised by the 2.3 How does the court decide what financial orders to Courts in Bermuda. Where the Court deems property to be make? What factors are taken into account? “matrimonial property” it will become subject to the powers of the Court under the Matrimonial Causes Act 1974. Section 29 of the Matrimonial Causes Act 1974 outlines the criteria the Court must consider before exercising its powers 2.8 Do the courts treat foreign nationals differently on with respect to financial and/or property adjustment orders: divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than (a) the income, earning capacity, property and other financial the law of the jurisdiction? resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which The Court does not treat foreign nationals any differently on each of the parties to the marriage has or is likely to have divorce save for in circumstances wherein the parties to the in the foreseeable future; marriage have been divorced in a foreign Court for which (c) the standard of living enjoyed by the family before the the equivalent of their decree is not recognised by the laws of breakdown of the marriage; Bermuda. In such a case, the parties will have to divorce under (d) the age of each party and duration of the marriage; the laws of Bermuda and/or the laws of a jurisdiction recog- (e) any physical or mental disability of either party to the nised by the laws of Bermuda (section 2(8)). The Court will not marriage; apply or make orders applying foreign law, save for in the case of a nullity.

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2.9 How is the matrimonial home treated on divorce? however, the Supreme Court of Bermuda presently retains exclusive jurisdiction to make financial orders upon the breakdown of a marriage that it deems necessary, in the circumstances. Upon divorce, the former matrimonial home, unless other- As a matter of practice, martial agreements are highly persua- wise agreed, is usually transferred to one of the parties to the sive evidence to demonstrate the intentions of the parties. The marriage, as the Court does not have the power to order that it Court will give due regard to a marital agreement; however, the be sold. In proceedings for ancillary relief, it is standard practice amount of weight the Court will attach to it will depend on the for the Court to order an appraisal of the property, and subject circumstances of the parties and the children of the family. to any legal mortgage (or registered charge) over the property, the party retaining the property is at liberty to purchase their spouse’s interest as determined by the Court, pursuant to a prop- 3.2 What are the procedural requirements for a marital erty adjustment order or otherwise agreed between the parties. agreement to be enforceable on divorce?

Although there is no specific legislation governing martial 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? agreements, to be enforceable a marital agreement should be in writing, entered into freely and without undue influence and should disclose the financial position and all material facts with Trusts are indeed recognised by the Bermuda Courts. The Court respect to both parties. will often enquire as to the nature of the trust and the trust assets to determine if it is to be deemed to be a “nuptial settlement”. Additionally, where it can be demonstrated that an asset 3.3 Can marital agreements cover a spouse’s financial of a trust is a financial resource of the “beneficiary spouse”, the claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial Court can consider whether or not to make an order placing the property regime? Can they deal with financial claims onus on the trustees to make any benefits derived therein avail- regarding children, e.g. child maintenance)? able to the “claiming spouse”. A marital agreement can cover all matters of ancillary relief that 2.11 Can financial claims be made following a foreign are applicable to the parties to the marriage. The agreement can divorce in your jurisdiction? If so, what are the grounds? address financial claims with respect to children and maintenance for the benefit of the children. The Recognition of Divorces and Legal Separations Act 1977 provides a statutory mechanism for which an individual can 42 Cohabitation and the Unmarried Family apply to the Supreme Court of Bermuda for ancillary relief under the Matrimonial Causes Act 1974. Section 9 of the Recognition 4.1 Do cohabitants, who do not have children, have of Divorces and Legal Separations Act 1977 provides limited financial claims if the couple separate? What are the scope for parties seeking relief, in that the Supreme Court can grounds to make a financial claim? only exercise its powers in relation to land or any interest in land. There is no statutory framework providing a mechanism for 2.12 What methods of dispute resolution are available cohabitants who do not share children; therefore, unless the to resolve financial settlement on divorce? E.g. court, parties involved have a claim against (or involving) real property mediation, arbitration? for which they seek to establish some interest in, there are no grounds upon which they would be able to make a claim. In lieu of pursuing contentious litigation through the Court, parties may opt to participate in the collaborative law process, 4.2 What financial orders can a cohabitant obtain? mediation or arbitration to resolve financial matters of their divorce. This is not applicable. 32 Marital Agreements 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? 3.1 Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is a foreign agreement? In June 2018, the Domestic Partnership Act 2018 was enacted in response to the landmark case of Godwin DeRoche et al. [2017] SC The position with respect to pre- and post-nuptial agreements, (Bda) 36 civ wherein the Supreme Court ruled that the common has not been fully considered by the Bermuda Court. However, law definition of marriage was incompatible with the provi- in 2008, the Privy Council in the United Kingdom, Bermuda’s sions of the Human Rights Act 1981, resulting in the legalisa- highest appellate Court, considered the enforceability of tion of same-sex marriage. Although applicable to all partner- post-nuptial agreements in the case of McLeod -v- McLeod, when it ships, provisions of the Domestic Partnership Act 2018 were was held that post-nuptial agreements were to be treated as main- later determined to be unconstitutional, contravening the rights tenance agreements, and are therefore binding and enforceable. of the individual to freedom of conscience and from discrimina- With respect to pre-nuptial agreements, although historically tion on the basis of creed. considered to be against public policy, the leading authorities in the United Kingdom demonstrate a shift in how the Courts 4.4 Are same-sex couples permitted to marry or enter consider the enforceability of pre-nuptial agreements. As judg- other formal relationships in your jurisdiction? ments of the United Kingdom Supreme Court remain persua- sive in Bermuda, it is likely that the Court will consider a pre- As a result of the decision in Godwin DeRoche et al., and the and/or post-nuptial agreement to be enforceable to some degree; subsequent legal challenge of the provisions of the Domestic

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Partnership Act 2018 in the case of Ferguson Jackson et al., same-sex 5.4 Can capital or property orders be made to or for the couples are permitted to lawfully marry. The case of Ferguson benefit of a child? Jackson et al. has been appealed to the Court of Appeal and is presently before the Privy Council. Until such time as the Privy The Court is empowered under the Matrimonial Causes Act Council renders its decision, same-sex couples are permitted to 1974, the Children Act 1998 and the Minors Act 1950 to make marry. capital and property orders for the benefit of a child. 52 Child Maintenance 5.5 Can a child or adult make a financial claim directly 5.1 What financial claims are available to parents on against their parents? If so, what factors will the court behalf of children within or outside of marriage? take into account?

Sections 25 to 29 of the Matrimonial Causes Act govern the Children (including adults) can make financial claims against types of orders the Court can make on divorce, with respect to their parents directly under the Children Act 1998 and the children of the marriage, specifically: Minors Act 1950; however, in the case of a child, such claims ■ periodical payments for the benefit of (and/or directly to) are subject to the procedural requirements of the Rules of the a child of the family; Supreme Court 1985. In accordance with Order 80 of the Rules ■ secured periodical payments for the benefit of (and/or of the Supreme Court 1985, any claims brought by a child must directly to) a child of the family; or be made via their “next friend” who must, in turn, be repre- ■ a lump-sum provision for the benefit of (and/or directly sented by counsel. In accordance with section 36.1C (4) of the to) a child of the family. Children Act 1998, the Court will consider the following: Although section 18A of the Children Act 1998 abolishes ■ each parent’s assets and means; the distinction between “legitimate and illegitimate” children, ■ the assets and means that each parent is likely to have in sections 36.1A–M outline the obligations for, and applicable to, the future; the support of all children irrespective of the marital status of ■ each parent’s capacity to provide support for the child; their parents. Applications under the Children Act 1998, unless ■ each parent’s age, physical and mental health; otherwise stated therein, are dealt with by the Special Court of ■ the needs of the child; the Magistrates’ Court of Bermuda who have the power to make ■ the measures available for each parent to become able to the following interim or final orders: provide support for the child and the length of time and ■ periodical payments for the benefit of the child; cost involved to enable each parent to take those measures; ■ a lump-sum payment to be paid or held on trust, for the ■ any legal obligation of each parent to provide support for benefit of the child; another person; and ■ payment of expenses relating to the birth of the child; or ■ the desire of either parent to remain at home to care for the ■ securing payment (via attachment of earnings order, child. charge on property or any other method the Court deems appropriate in the circumstances). The Minors Act 1950 also empowers the Court to make orders 62 Children – Parental Responsibility and with respect to maintenance for the benefit of a minor by/to a Custody parent and/or guardian of the child, in addition to the general management of a minor’s property. 6.1 Explain what rights of custody both parents have in your jurisdiction, whether (a) married, or (b) unmarried? 5.2 How is child maintenance calculated and is it administered by the court or an agency? Applications to the Court to determine custody, inclusive of care and control, are determined based on the welfare of the Child maintenance is calculated based on a variety of factors to child. Section 36C of the Children Act 1998 expressly provides be considered by the Court. There is no prescribed or legislated that persons entitled to custody of a child have “the rights and formula that determines the level of maintenance a party is to responsibilities of a parent in respect of the person of the child, receive for the benefit of a child, as applications will be consid- including the right to care and control of the child and the right ered on a case-by-case basis. The Court, in determining the level to direct the education and moral and religious training of the of maintenance payable for the benefit of a child, must apportion child”. Therefore, as a matter of law, because both parents the obligations between parents to support that child according to are deemed to possess parental responsibility for a child, both their abilities to contribute to the performance of their obligations. parents are, in turn, equally entitled to custody of the child, irre- Upon setting the level of maintenance payable for the benefit spective of their marital status. of the child, the enforcement of any order for the support of a child is exclusively dealt with by the Collecting Office of the 6.2 At what age are children considered adults by the Magistrates’ Court. court?

5.3 For how long is a parent required to pay child Children reach majority upon their 18th birthday. maintenance or provide financial support for their children? For example, can a child seek maintenance during university? 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)? A parent’s obligation will continue until the child is 18 and will only be extended if the child is enrolled in full-time education Children will be considered by the Court to be children of the or if the child is unable to withdraw from the charge of their family (section 45 of the Matrimonial Causes Act 1974) and/ parents by reason of illness, disability or other cause.

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or dependants (section 36.1A of the Children Act 1998) for the 6.8 Are unmarried parents treated in the same way purposes of any maintenance obligations as long as they remain as married parents when the court makes orders on in full-time education. separation or divorce?

6.4 What orders can the court make in relation to There is no difference in the treatment of parents as a result of children? Does the court automatically make orders in their marital status, as a result of the abolition of the distinction relation to child arrangements in the event of divorce? between legitimate and illegitimate children, and the guiding principle that both fathers and mothers should have liberal The Matrimonial Causes Act 1974 does not contain specific access to their children, pursuant to sections 18A and 2(2) of the provisions which detail what arrangements the Court can order Children Act 1998, respectively. with respect to a child of the family, and as such the Court will look to the Children Act 1998 when considering an applica- 6.9 Is a welfare report prepared by an independent tion relating to the rights of custody of a child. Section 36F of professional or is the decision taken by the Judge alone? the Children Act 1998 outlines the powers the Court has with If so, does the child meet the Judge? respect to making orders for custody of a child, specifically: ■ An order granting custody of or access to the child to one The Court has the power, under section 36E of the Children Act or more persons. 1998, to appoint a person with technical or professional skills to ■ An order determining any aspect of the incidents of the assess and report to the Court on the needs of the child to whom rights of custody or access to the child. an application for custody or access relates. The power to order ■ Any other additional order as the Court considers neces- such an assessment is discretionary, with the Court retaining the sary and proper in the circumstances. power to make whatever decision it deems necessary to promote It is of note, however, that, upon divorce, the Court will the welfare of the child, in the absence of any reports. enquire into the agreed arrangements for a child of the family On an application for custody and/or access to a child, section with respect to custody, care and control, access and travel. 36I of the Children Act 1998 provides that, where at all possible, Upon enquiry, the Court can refuse to make absolute, a decree the Court shall take into consideration the views and prefer- of divorce, if unsatisfied that the arrangements are, at least, “the ences of that child to the extent in which the child is able to best that can be devised in the circumstances”. express them. Additionally, section 36I confers a discretion on the Court to interview the child directly to determine their 6.5 What factors does the court consider when making views and preferences. orders in relation to children? Applications relating to children that are heard in the Supreme Court are decided by one judge, sitting alone. Applications that The Court will consider a variety of factors when making orders are heard in the Special Court in the Magistrates’ Court are in relation to children, including the child’s age, the parents’ determined by a panel within the Special Courts, comprised of ability to provide the child with a long-term stable home envi- two members of the public and chaired by a Magistrate. ronment (which includes all of the necessities of life such as food, safety, access to medical care and education); however, the 6.10 Is there separate representation for children in your welfare of the child is always the paramount consideration. jurisdiction and, if so, who would represent them, e.g. a lawyer?

6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? Children can be represented separately but can only issue or defend proceedings via their “next friend” or “guardian ad litem” respectively. In June 2019, the Court of Appeal held In the absence of an order of the Court, the de facto position is that children had the right to separate representation, where the that parents will have joint custody of the child. This will mean Court determines that it is required to safeguard their rights and that neither parent can make any decisions, including travelling welfare. In such circumstances, the Court will appoint a “liti- overseas, with respect to the child, without leave of the Court or gation guardian” (who must be a private social worker) who is the express consent of the other parent. required to instruct counsel to represent the child’s interests in Court. 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or There is a presumption of joint custody of the child upon grandparents or siblings. What methods of dispute divorce; however, section 36C(4) of the Children Act 1998 speci- resolution are available to resolve disputes relating to fies that when parents are living separate and apart and the child children? lives with one parent with the consent of the other, that parent’s right to exercise their entitlement to custody, is suspended Unless otherwise ordered or agreed, only those possessing until a separation agreement or order of the Court otherwise parental responsibility and custody, by operation of law, court provides. It is of note that the suspension of the right to exercise order or deed of legal guardianship, are permitted to have a say the entitlement to custody of a child, under section 36C(4) does with respect to the arrangements for a child. not include the entitlement to access to the child. Parties seeking to resolve disputes regarding children can opt to participate in private or court-ordered mediation, as an alternative to formal litigation.

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72 Children – International Aspects Bermuda adopted the Hague Child Abduction Convention by way of further legislation, namely the International Child Abduction Act 1998, and thereafter the International Child 7.1 Can the custodial parent move to another state/ Abduction (Parties to Convention) Order 1999. country without the other parent’s consent? Applications under the Hague Convention are made to the Supreme Court, with the Rules of the Supreme Court 1985 Given that Bermuda is a small jurisdiction, if a custodial parent setting out the procedure for the application. were to relocate to another part of Bermuda, consent would not An applicant must satisfy the Supreme Court that they were be required. exercising rights of custody, in addition to proving the abduction of the child. Upon satisfaction of both criteria, the Supreme 7.2 Can the custodial parent move to another part of Court will more than likely make an order for the return of child the state/country without the other parent’s consent? to the country where they are a habitual resident. Domestically, the Children Act 1998 provides the Court with the power to enforce orders for custody, including care and Given that Bermuda is a small jurisdiction, if a custodial parent control and access, with respect to a child. Such orders are used were to relocate to another part of Bermuda, consent would not as preventative measures to prevent the unlawful removal of be required. children from Bermuda. The Children Act 1998 details the Court’s powers to prevent 7.3 If the court is making a decision on relocation of a the unlawful removal of children from Bermuda; however, appli- child abroad, what factors are taken into account? cations under section 22 of the Minors Act 1950 are to expressly prohibit the removal of a child from Bermuda. Applications Applications to permanently remove a child from Bermuda are under the Minors Act 1950 are usually used in an emergency determined based on the welfare principle. As such, there are and/or time sensitive cases and are usually made ex parte. no statutory provisions detailing how the Court should exercise its discretion, with each case being determined based on the 82 Overview welfare principle and the facts. When considering such an application, the Court takes the 8.1 In your view, what are the significant developments following criteria into consideration: in family law in your jurisdiction in the last two years? ■ If the “applying parent’s” application is genuine in nature. ■ The impact on both the “applying parent” and the child if Within the past two years, family and matrimonial law has expe- the application were to be refused. rienced significant development in Bermuda, particularly in the ■ Is the objection to the child’s removal from the “respondent area of the rights of children with regards to separate representa- parent” motivated out of genuine concern for the welfare tion and the duties of the government to secure funding for such of the child or is there some other undisclosed motive? representation. In December 2019, the Bermuda Government ■ What would be the impact or detriment to the relation- announced the selection and appointment of a panel of persons ship between the “respondent parent” and the child if the from whom litigation guardians appointed by the Court must be application were granted? selected, in accordance with recent amendments to the Children Act 1998. 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are 8.2 What impact, if any, has the COVID-19 pandemic taken into account? had on family law in your jurisdiction to date, and is likely to have over the next 12 months? This is not applicable. On 2 April 2020, Bermuda entered into a “state of emergency”, 7.5 In practice, how rare is it for the custodial parent to requiring all residents to “shelter in place”. The effects of the be allowed to relocate internationally/interstate? “state of emergency” were such that children who were subject to orders of the Court wherein their parents share custody, care As a matter of practice, it is extremely common that a custodial and control, were forced to remain at the residence they were parent, also referred to as the “primary carer”, would seek to residing at prior to the “state of emergency”. This resulted in relocate with the child/children, particularly for educational or several children and parents going weeks without seeing each employment purposes. The Court rarely refuses such an appli- other. Following the “state of emergency” on 2 April 2020, cation if genuinely made and arrangements are made for the parents were finally allowed to effect the transition to the other “respondent parent” to maintain liberal access to the child. parent’s residence on 20 April 2020. In light of the impact that COVID-19 has had on Bermuda, it is likely that there will be further development within the legislation to safeguard children 7.6 How does your jurisdiction deal with abduction who have to manage transitioning between two homes. cases? For example, is your jurisdiction a party to the Hague Convention?

Bermuda became a party to the Hague Convention on the Civil Aspects of International Child Abduction in 1999.

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8.3 To what extent and how has the court process and 8.4 What are some of the areas of family law which you other dispute resolution methods for family law been think should be looked into in your jurisdiction? adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to The impact of COVID-19 is such that, all around the world, remain after the COVID-19 crisis has passed? there has been a significant increase in domestic violence and limited relief for victims who are required to “shelter in place” with their abusers. Legislative changes to allow for remote The Courts have begun to adapt their processes, in light of the emergency hearings, with viva voce evidence in lieu of formal affi- impact of COVID-19, with the introduction of electronic filing davits, etc., would reduce delays and could potentially reduce the and virtual court hearings. Whether or not the Courts will harm suffered by the victims. retain some of these adjustments remains unknown; however, if they do, it is likely to be optional and/or subject to the discretion of the Courts.

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Cristen Suess is an Associate in the Litigation Department of Wakefield Quin Limited. Cristen regularly advises on all areas of matrimonial and family law, and she often appears in both the Family Division of the Magistrates’ Court and the Supreme Court. Cristen’s practice covers a variety of areas including: divorce; marital agreements; maintenance; adoption; child paternity; surrogacy; and custody disputes. Cristen successfully represented the applicants in the first “Adoption via Surrogacy” in the Bermuda Courts. Cristen frequently coordinates a free Legal Advice Clinic through a local women’s charity, providing advice to women in the community. In March 2019, Cristen was appointed as a Human Rights Commissioner, to adjudicate complaints upon referral to the tribunal. Cristen obtained her LL.B. from the University of Leicester in 2012 and thereafter completed the Bar Professional Training Course in 2014 at City University. She is a member of the Honourable Society of Lincoln’s Inn.

Wakefield Quin Limited Tel: +1 441 494 4000 Victoria Place, 31 Victoria Street Email: [email protected] Hamilton HM 10 URL: www.wq.bm Bermuda

Wakefield Quin is an internationally recognised full-service Bermuda law firm dedicated to providing clients with timely, sophisticated and solution-driven legal advice. The firm is known for delivering personalised and efficient legal service, geared to working to agreed timetables and budgets. Wakefield Quin and its lawyers have been recognised by many of the world’s leading legal directories, including Chambers Global, The Legal 500 and IFLR1000. Wakefield Quin recognises the vital importance of establishing close and continuing business relationships with clients and, throughout the firm’s history, has forged valuable networks with legal professionals in the US, UK, Europe and Asia. The firm’s lawyers are actively involved in professional organisations including the Bermuda Bar Association, the Restructuring and Insolvency Specialist Association, the International Bar Association and 100 Women in Hedge Funds. www.wq.bm

Family Law 2021 34 Chapter 6 Canada – Ontario Canada – Ontario

Sarah Boulby

Boulby Weinberg LLP Oren Weinberg

12 Divorce 1.4 What is the procedure and timescale for a divorce?

1.1 What are the grounds of jurisdiction for divorce The timeline for obtaining a divorce depends entirely on proceedings? For example, residence, nationality, whether the divorce application is contested and whether other domicile, etc.? relief aside from a simple divorce is being requested. The first step to obtaining a divorce is to prepare a divorce Divorces in Ontario are governed by the federal Divorce Act. application. This document will be relatively straightforward An Ontario court has jurisdiction where either spouse has been where the only claim is for a divorce. This application can be ordinarily resident in the province for at least one year immedi- jointly prepared and submitted by the parties. If other relief ately before commencing the proceeding. The residency require- is sought (such as property division, support, custody/access), a ment is a question of fact. The court considers such factors more detailed application will be required along with additional as whether the spouse resided in the province as a customary documents. mode of life as opposed to merely casually or occasionally, and The application must then be issued by the court. The applica- whether the spouse had the intention of making a home in that tion will be served on the other party, who has 30 days to respond. province for an indefinite period. This is not dependent on citi- The other party may make claims for other relief in their answer. zenship, domicile or immigration status. The other spouse may The next steps will depend on whether the other party files argue another jurisdiction presents a more convenient forum. responding material and whether claims for additional relief If neither spouse resides in Canada at the time of the applica- have been made. If they do not file any responding material, tion and each of the spouses is residing in a foreign jurisdiction and the only claim being made is for a divorce, a divorce may be that does not recognize the validity of their marriage, the federal granted within months. If other claims are made, the next step Civil Marriages Act provides that a court in the province where may be an uncontested trial without an oral hearing, which can the spouses were married may grant a divorce. occur relatively quickly. If the other party does file responding material, the next step is for the parties to schedule a case conference with the court, 1.2 What are the grounds for a divorce? For example, which is a relatively informal court appearance designed to allow is there a required period of separation, can the parties both parties to appear before a judge and explore the issues, have an uncontested divorce? discuss possible settlements and determine the next steps in the case. If the matter does not resolve at the case conference, either A court may grant a divorce where there has been a breakdown party will be free to bring a motion on any issues in the case in the marriage. A breakdown in the marriage can be estab- and the matter will eventually proceed to trial, following further lished only in the following circumstances: court conferences. ■ the spouses have lived separately and apart for a period of not less than one year immediately before the divorce is granted; 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. ■ the other spouse has committed adultery; or ■ the other spouse has been physically or mentally cruel to render a continuation of cohabitation intolerable. Before a court will grant a divorce in Canada, it needs to be satisfied that reasonable arrangements have been made for the support of any children. 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.6 Are foreign divorces recognised in your jurisdiction? If so, what are the procedural requirements, if any? Parties need not attend court to obtain a divorce. Once the 30 days for a response to the divorce application has lapsed, the spouse applying for the divorce can proceed to file written Canada will recognize a foreign divorce so long as the divorce documentation for a Divorce Order. It is not possible to have a is valid in the other country and one or both of the spouses was private divorce. ordinarily resident in the other country for at least a year immediately before applying for a divorce. To remarry in Ontario, the couple must provide a legal opinion from an Ontario lawyer to

Family Law 2021 Boulby Weinberg LLP 35

confirm the foreign divorce should be recognized and they must may also be relevant depending on the claims being made. In jointly sign a statement of sole responsibility that their foreign spousal support claims, the length of the marriage, the impact divorce will be recognized in the province. of childcare responsibilities, and the financial consequences of marriage breakdown to the parties are considered.

1.7 Does your jurisdiction allow separation or nullity proceedings? 2.4 Is the position different between capital and maintenance orders? If so, how? A nullity, or annulment of the marriage, can be sought in circumstances where one of the requirements for the validity Maintenance orders in Canada are termed spousal support of the marriage does not exist or where there are allegations of orders. Spousal support orders are distinct from property fraud. Some of the requirements for a valid marriage include orders. They are covered by different legislative provisions age, capacity to consent, and solemnization. and are more discretionary in nature. However, a court may consider the amount a party receives by way of an equalization payment when deciding on the issue of support. 1.8 Can divorce proceedings be stayed if there are proceedings in another country? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? A divorce proceeding commenced in Canada can be stayed where a court determines that the foreign jurisdiction is the more convenient forum. Some of the factors a court will consider in If the parties reach an agreement on the financial issues, they do making this determination include: not need to attend court and obtain a court order. The parties can simply execute a written agreement which will be recognized ■ the location of the parties; and enforced by the courts as long as it complies with formali- ■ the location of the key witnesses and evidence; ties of a domestic contract as prescribed by the Family Law Act. ■ the avoidance of a multiplicity of proceedings; ■ contractual provisions that specify applicable law or accord jurisdiction; 2.6 How long can spousal maintenance orders last and ■ the application law and its weight in comparison to the are such orders commonplace? factual questions to be decided in the case; ■ geographical factors suggesting the natural forum; and Spousal support orders are commonplace in Ontario and can be ■ whether declining jurisdiction will deprive the spouse who time-limited or indefinite depending on various factors, such as commenced the proceeding in Canada a legitimate jurid- the length of the marriage and the age of the parties at the time ical advantage available in the domestic court. of separation.

22 Finances on Divorce 2.7 Is the concept of matrimonial property recognised in your jurisdiction? 2.1 What financial orders can the court make on divorce? In Ontario, there is no special category of matrimonial property. All forms of property are equalized under the Family Law Act. The court can make orders in respect of child support, spousal support and property division. 2.8 Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than 2.2 Do matrimonial regimes exist and do they need to the law of the jurisdiction? be addressed by the court on divorce? Is there a default matrimonial regime? Foreign nationals are not treated differently assuming jurisdic- In Ontario, the Family Law Act deems all marriages to be tion is found. In very restricted circumstances, foreign law may economic partnerships. At the end of the marriage, whether by apply with respect to property rights if the parties separated separation or death, a spouse may seek an equalization payment while living in another jurisdiction. from the other. The equalization calculation provides for the parties to share an increase in wealth during the marriage. All 2.9 How is the matrimonial home treated on divorce? forms of property are valued at the date of marriage and the date of separation, with certain assets unrelated to the partnership, In Ontario, any home which the parties ordinarily occupied such as inheritances during the marriage, being excluded. In at the time of separation has special treatment in equaliza- rare cases, a court may order unequal division where equalization. The owner of the home may not claim a deduction for the tion would be unconscionable. same property at the date of marriage. Moreover, regardless of legal ownership, both parties have a right of possession to the 2.3 How does the court decide what financial orders to home until divorce or court order and neither party can sell or make? What factors are taken into account? encumber the property without the other party’s consent.

A court will consider factors related to the financial circum- 2.10 Is the concept of “trusts” recognised in your stances of the parties, including income, assets and liabilities jurisdiction? If so, how? both during the marriage and following separation. The circumstances and actions of the parties around the time of separation Trusts are recognized in Ontario.

Family Law 2021 36 Canada – Ontario

2.11 Can financial claims be made following a foreign 4.2 What financial orders can a cohabitant obtain? divorce in your jurisdiction? If so, what are the grounds? Cohabitants may claim child support, spousal support or assert Ontario courts do not have jurisdiction to hear and determine common law or equitable property claims. spousal support claims following a valid divorce in another jurisdiction. An Ontario court may have jurisdiction under the 4.3 Is there a formal partnership status for cohabitants Family Law Act to determine child support and family prop- (for example, civil partnerships, PACS)? erty claims.

There is no formal partnership status. 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? Parties may resolve their disputes by negotiation, mediation, arbitration or litigation. Same-sex couples may marry throughout Canada.

32 Marital Agreements 52 Child Maintenance

3.1 Are marital agreements (pre- and post-marriage) 5.1 What financial claims are available to parents on enforceable? Is the position the same if the agreement is behalf of children within or outside of marriage? a foreign agreement? A parent may claim child support on behalf of his or her child Parties may enter domestic contracts disposing of support and following separation where that parent is the child’s primary property rights before, during or after a marriage. A foreign caregiver or there is a shared parenting arrangement. contract governing such rights will be enforceable if it meets the formal validity requirements set by the Family Law Act. 5.2 How is child maintenance calculated and is it Domestic contracts concerning custody and access will not be administered by the court or an agency? enforced if they are not in the child’s best interests. Domestic contracts concerning child support that depart from Child Support Guidelines will not be enforced. Domestic contracts Child support is determined under the Child Support Guidelines may be set aside if the parties did not make comprehensive which calculate monthly child support based on the parenting financial disclosure, did not understand the nature and terms of arrangements, income and the number of children. In addition, a the contract, or otherwise under the law of contract. parent may seek contribution to special or extraordinary expenses including childcare, private school or university expenses. Where the payor spouse earns over $150,000 per year, the 3.2 What are the procedural requirements for a marital court has discretion to order an amount of support that differs agreement to be enforceable on divorce? from the Guidelines after considering the condition, means, needs and circumstances of the parties and the children. A marital agreement must be in writing, signed by both parties, and witnessed. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their 3.3 Can marital agreements cover a spouse’s financial children? For example, can a child seek maintenance claims on divorce, e.g. for maintenance or compensation, during university? or are they limited to the election of the matrimonial property regime? Can they deal with financial claims Parents must pay child support as long as the child is a dependant, regarding children, e.g. child maintenance)? even if over the age of majority, if that child is unable to withdraw from parental control because of illness, disability or education. Marital agreements can cover all financial claims for property and support. Agreements concerning child support that depart 5.4 Can capital or property orders be made to or for the from the Child Support Guidelines will not be enforced. benefit of a child? 42 Cohabitation and the Unmarried Family Family property rights are reserved for parents.

4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the 5.5 Can a child or adult make a financial claim directly grounds to make a financial claim? against their parents? If so, what factors will the court take into account? In Ontario, cohabitants have rights to support and may make equitable claims for relief in relation to property but do not have A dependent child, whether a minor or a legal adult, may apply the right to equalization. for support from a parent but this is rare. Unmarried spouses have spousal support rights if they have Child support is determined under the Child Support cohabited for at least three years. They may make common law Guidelines. An adult child will need to demonstrate that he property claims or equitable claims for unjust enrichment, other or she is still dependent and unable to withdraw from parental restitutionary claims or resulting trust claims. control because of illness, disability or education.

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62 Children – Parental Responsibility and child for a school-related program, counselling or medical treatment absent proof of the consent of the other parent. A parent Custody should not remove a child from the jurisdiction without the other parent’s consent. 6.1 Explain what rights of custody both parents have in your jurisdiction, whether (a) married, or (b) unmarried? 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? All parents, whether married or unmarried, may make a claim for custody or access to a child. There is no set presumption in the law for an equal division of Rights of custody include physical custody, or legal custody time between separating or divorcing parents. which concerns making major decisions for the child in relation to the child’s health, education and welfare. 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on 6.2 At what age are children considered adults by the separation or divorce? court?

Regardless of whether a claim is being made by a married or A child is considered an adult at 18 years old. unmarried parent, the legal test and the considerations are the same: the best interests of the child. 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)? 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? Custody and access orders do not operate once a child reaches If so, does the child meet the Judge? the age of 18 years or marries. A court may order an assessment to report on the needs of the 6.4 What orders can the court make in relation to child and the ability and willingness of the parents to meet these children? Does the court automatically make orders in needs by a qualified third-party professional. The author of this relation to child arrangements in the event of divorce? report must be appointed by the court prior to starting the assessment process and will typically be an independent mental health A court can make custody and access orders (now called professional with experience in the area of family disputes. The parenting orders under the Divorce Act). Access is the right court will consider the final assessment report prepared by this to spend time with a child and to make inquiries and be given professional when making a decision about custody and access information concerning the child’s health, education and of a child. A court may also obtain the views and preferences welfare. Custody is the right to make major decisions for a of the child by way of a judicial interview or by appointing legal child in relation to health, education, and welfare. A court can representation for the child. either grant sole or joint custody to a child. A court can also make orders about the physical custody of a child. This phys- 6.10 Is there separate representation for children in your ical custody can either be granted primarily to one parent, or jurisdiction and, if so, who would represent them, e.g. a can involve a sharing of time between parents. lawyer? Parents are free to reach their own agreement about the parenting arrangements following separation and this agree- An independent branch of the Ontario Government called the ment will be respected by the court so long as it accords with the Office of the Children’s Lawyer provides legal representation to best interests of the child. children and youth in child welfare and custody/access matters across the province. 6.5 What factors does the court consider when making In custody/access cases, the court has the discretion to orders in relation to children? order legal representation for the child under the Children’s Law Reform Act. Once this order is made, the Office of the The primary consideration when making a decision in relation Children’s Lawyer will then determine whether to actually to children is the best interests of the children in the circum- appoint a lawyer to act for the child. This decision will be made stances. In Ontario, a court will consider the love, affection based on the circumstances of the case and available resources. and emotional ties between the child and the parties, the child’s views and preferences, and the ability and willingness of the 6.11 Do any other adults have a say in relation to the parties to meet the needs of the child. A court will also consider arrangements for the children? E.g. step-parents or the willingness of a parent to facilitate contact between the child grandparents or siblings. What methods of dispute and another parent. resolution are available to resolve disputes relating to children?

6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? Any person including a grandparent or step-parent may apply for custody or access to a child. The parties may resolve parenting disputes by negotiation, mediation, arbitration or litigation. Without a court order or written agreement in place in respect of custody, parents may have difficulty unilaterally registering a

Family Law 2021 38 Canada – Ontario

72 Children – International Aspects 82 Overview

7.1 Can the custodial parent move to another state/ 8.1 In your view, what are the significant developments country without the other parent’s consent? in family law in your jurisdiction in the last two years?

A custodial parent may move a child to another jurisdiction if Ontario has introduced new parentage legislation in the the other parent does not object despite notice or with a court Children’s Law Reform Act which conceives parenthood as order. derived from intention rather than biology. The statute now addresses assisted reproduction technology and diverse family forms with multiple parents. The Divorce Act has been 7.2 Can the custodial parent move to another part of the state/country without the other parent’s consent? amended to modernize parenting provisions and prescribe the relevant factors for relocation cases. A custodial parent may move to another part of Ontario or another Canadian jurisdiction if the other parent does not object 8.2 What impact, if any, has the COVID-19 pandemic despite notice or with a court order. had on family law in your jurisdiction to date, and is likely to have over the next 12 months?

7.3 If the court is making a decision on relocation of a The COVID-19 pandemic has had a profound impact on family child abroad, what factors are taken into account? law cases. The courts have been shut for all but urgent matters affecting the health and welfare of children and for dire finan- A court must consider the child’s best interests, considering: cial circumstances affecting spouses. The courts have imple- ■ the reasons for the relocation; mented telephone conferencing and motions and, in some ■ the impact of the relocation on the child; circumstances, virtual conferences. It remains unclear if or ■ the amount of time spent by each parent with the child and when the courts will be able to conduct remote trials or when level of involvement in the child’s life; it will open for a broader range of cases beyond urgent matters. ■ provision of notice of the relocation; ■ existence of a court order, arbitral award or agreement with respect to the child’s place of residence; and 8.3 To what extent and how has the court process and other dispute resolution methods for family law been ■ reasonableness of the proposal for parenting time adapted in your jurisdiction in light of the COVID-19 following the move and compliance with existing obliga- pandemic (e.g. virtual hearings, remote access, tions under a court order, arbitral award or agreement. paperless processes)? Are any of these changes likely to remain after the COVID-19 crisis has passed? 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are In light of the COVID-19 pandemic, the courts in Ontario taken into account? are accepting family law court documents in electronic format and working towards establishing an electronic filing system. The factors are the same whether the proposed move is abroad It is not clear when that will be completed. The courts are or within Ontario or Canada. conducting telephone conferences and motions and, in some cases, virtual conferences and motions for matters that are considered urgent. The courts are otherwise closed for regular 7.5 In practice, how rare is it for the custodial parent to business for the time being. For parties that want to access alter- be allowed to relocate internationally/interstate? native dispute resolution methods, many mediators and arbitrators are offering their services virtually, conducting mediations These cases are highly fact-driven. It is fairly common for relo- and arbitrations online. cation applications to be approved.

8.4 What are some of the areas of family law which you 7.6 How does your jurisdiction deal with abduction think should be looked into in your jurisdiction? cases? For example, is your jurisdiction a party to the Hague Convention? Under Ontario’s current laws, unmarried spouses only have equitable property claims and do not have access to the family Canada is a signatory to the Hague Convention. Ontario has property regime that applies to married spouses. This causes incorporated the terms of the Convention into provincial legis- confusion and merits review. lation (the Children’s Law Reform Act) and made it clear that these terms override any conflicting provincial legislation.

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Sarah Boulby has practiced family law since 1993. She advises clients located in Ontario and internationally on complex support, property and parenting issues. She negotiates agreements and represents clients in court at the trial and appellate level as well as in mediations and arbitrations. Sarah is listed in Best Lawyers International. Sarah is ranked by Lexpert as one of Toronto’s Leading Practitioners of Family Law. She is a Fellow of the International Academy of Family Lawyers, a worldwide organization of family lawyers recognized by their peers as leading lawyers in their countries. Sarah is the President of the Canadian Chapter of the Academy. Sarah is a member of the Law Alumni Association Council of the University of Toronto Faculty of Law. She also serves as a Director of the Toronto Lawyers Association. Sarah speaks and writes frequently on family law issues. She is the author of educational material used by the Law Society of Upper Canada in its Licensing Process. Sarah graduated from Queen’s University with an Honours Bachelor of Arts in 1986 and a Master of Arts in 1989. She graduated with an LL.B. from the University of Toronto in 1991. Sarah served as Law Clerk to Mr. Justice Peter Cory at the Supreme Court of Canada in 1991- 1992. She was called to the Ontario Bar in 1993. She was counsel to the Ontario Law Reform Commission and since 1993 has practiced as a family lawyer.

Boulby Weinberg LLP Tel: +1 647 494 0113, ext. 101 80 Richmond Street West, 18th Floor Email: [email protected] Toronto, Ontario URL: www.boulbyweinberg.com M5H 2A4 Canada

Oren Weinberg has practiced family law exclusively since 2005. He advocates for his clients when negotiating agreements, appearing before trial and appellate courts as well as in mediations and arbitrations. Oren handles all aspects of family law including property and support, custody and access. Oren acts for clients based in Ontario and internationally. Oren graduated from York University with an Honours Bachelor of Arts in 1995. He obtained a Master of Arts in 1997 from the University of Toronto. Oren backpacked through Asia and Australia and worked for a major Canadian bank before attending law school. He graduated from the University of Western Ontario with an LL.B. in 2004. He was called to the Ontario Bar in 2005. Oren is a member of the Ontario Bar Association and the Advocates’ Society. He is a Fellow and Governor of the International Academy of Family Lawyers and is recognized by Best Lawyers. Oren is a certified specialist in mediation. He was granted the FDRP Med designation by FDRIO – the Family Dispute Resolution Institute of Ontario. Oren also participated in the Program on Negotiation at the Harvard Negotiation Institute where he completed the Mediating Disputes Workshop. As a mediator, Oren focuses on his client’s interests in order to tailor a solution-focused process that promotes the parties’ participation in resolving their own differences. When asked, Oren will also arbitrate. Oren has a passion for travel. He is an avid water skier and cyclist.

Boulby Weinberg LLP Tel: +1 647 494 0113, ext. 100 80 Richmond Street West, 18th Floor Email: [email protected] Toronto, Ontario URL: www.boulbyweinberg.com M5H 2A4 Canada

Boulby Weinberg LLP is a firm of experienced family law lawyers. Sarah Boulby and Oren Weinberg are both listed in Best Lawyers International. Both Sarah Boulby and Oren Weinberg are Fellows of the International Academy of Family Lawyers, a worldwide organization of family lawyers recognized by their peers as leading lawyers in their countries. Boulby Weinberg LLP regularly deals with all aspects of family law, including support, property division and custody/access for both local clients as well as those abroad. The firm provides a full breadth of services to clients, from the negotiation of agreements to attending at mediation, arbitration or court. www.boulbyweinberg.com

Family Law 2021 40 Chapter 7 Canada – Québec Canada Canada – Québec

Sonia Heyeur

Heyeur Jessop S.E.N.C.R.L. Shannon Jessop

12 Divorce Alternatively, if the parties have not filed a joint application but have come, nonetheless, to a complete settlement, they can, with the assistance of their attorneys, file all the required docu- 1.1 What are the grounds of jurisdiction for divorce ments and forms and obtain a divorce without having to attend proceedings? For example, residence, nationality, domicile, etc.? court. In both cases, a judge might require the presence of the parties should he or she need extra information or accuracies with regards The Divorce Act is a Federal act. The Act is applicable to all to the documents submitted or the allegations they contain. provinces and territories of Canada, including the province of Québec. In order to apply for a divorce in Québec, one of the spouses must have been residing in the province of Québec for 1.4 What is the procedure and timescale for a divorce? a period of one year prior to filing the application. Note that it is one of the spouses that must have been residing in Québec, The procedure is an application for divorce and corollary not necessarily the applicant spouse. Therefore, the grounds of relief. When the application is served to the other spouse (the jurisdiction for divorce proceedings is residence. defendant), this spouse has 15 days to file a response and then three months to establish a protocol for the different steps of 1.2 What are the grounds for a divorce? For example, the procedures leading to a hearing. If the served spouse resides is there a required period of separation, can the parties outside the jurisdiction of Québec, then the time to respond is have an uncontested divorce? 30 days. A protocol must also be established. Depending on the nature of the corollary relief and the degree The Divorce Act provides, at section 8, that a spouse may apply of contestation, it is possible for it to take up to two years before for a divorce when there is a breakdown of the marriage. The a divorce judgment is rendered. But often, within a year or a breakdown of the marriage is established only if: year-and-a-half, most cases are resolved. (a) the spouses have lived separately and apart for at least Before the divorce application is heard, one or both of the one year immediately preceding the determination of the parties normally applies for provisional measures in order for the divorce proceeding and were living separately and apart at questions of custody, child support and spousal support to be the commencement of the proceeding; and answered on a timelier basis. If there is an urgency to be heard (b) the spouse against whom the divorce proceeding is brought on any of these questions, it is possible to file for an order to safe- has, since the celebration of the marriage, committed guard. This application can be heard after 10 days’ notice. In adultery, or has treated the other spouse with physical or the case of extreme urgency, the 10-day period can be reduced. mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. We habitually consider that there are three grounds for 1.5 Can a divorce be finalised without resolving other divorce: (1) separation for at least one year; (2) adultery; and (3) associated matters? For example, children and finances. physical or mental cruelty. As for uncontested divorces, it is not possible to proceed on Yes, the Divorce Act provides for the possibility for the court this basis alone, since one of the grounds for divorce must be to render a divorce judgment that does not resolve all corol- alleged in the proceedings. It is, however, possible for parties lary measures. However, our courts will normally agree to who have completely settled all of the consequences of their pronounce a divorce judgment without resolving all the asso- divorce to file a joint application for divorce. ciated matters only if all questions related to the children are heard and resolved. All other matters can be decided or claimed 1.3 In the case of an uncontested divorce, do the at another time. parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.6 Are foreign divorces recognised in your jurisdiction? If so, what are the procedural requirements, If the divorce is uncontested as defined in question 1.2 (meaning, if any? if the parties have filed a joint application), it is possible to obtain a divorce judgment without appearing in court as long as all the Yes, but not all of them. The Divorce Act says that if either proper documents and forms have been completed and filed at spouse was ordinarily resident in the foreign country or region the same time as the joint application.

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for at least one year immediately preceding the commencement partition of the matrimonial regime, child/spousal support, of proceedings for the divorce, then the foreign divorce judg- compensatory allowances and provision for costs. ment can be recognised “for all purposes of determining the marital status in Canada of any person”. If the residency crite- 2.2 Do matrimonial regimes exist and do they need to rion is not respected, it will not be recognised. be addressed by the court on divorce? Is there a default If there are corollary reliefs attached to the divorce judgment, matrimonial regime? the foreign judgment must go through the process of recognition and enforcement as provided by our Code of Civil Procedure (Art. 507 C.C.P.). A certificate from a competent foreign public Yes, they do. The matrimonial regime by default is the partner- official stating that the decision is no longer appealable in the ship of acquests. When applying for a divorce, the dissolution State in which it was rendered or that it is final or enforceable of the matrimonial regime and the division of the assets of the must be filed with the application. regime forms part of the different corollary reliefs requested. This application can be contested on the basis of section 3155 of the Civil Code of Québec (C.C.Q.), which states that: 2.3 How does the court decide what financial orders to make? What factors are taken into account? “A decision rendered outside Québec is recognized and, where applicable, declared enforceable by the Québec authority, except in the following cases: Our Civil Code provides for the rules concerning the division of (1) the authority of the State where the decision was the family patrimony and the division of the assets of the matri- rendered had no jurisdiction under the provisions of monial regime that are applied by our courts. Child support this Title; is determined according to specific regulations with estab- (2) the decision, at the place where it was rendered, lished guidelines. The Civil Code also establishes rules for child is subject to an ordinary remedy or is not final or support, arrears and special costs. These rules also indicate enforceable; when a judge can exercise his discretion not to apply said rules. (3) the decision was rendered in contravention of the fundamental principles of procedure; 2.4 Is the position different between capital and (4) a dispute between the same parties, based on the same maintenance orders? If so, how? facts and having the same subject has given rise to a decision rendered in Québec, whether or not it has become final, is pending before a Québec authority, Even though we could say that everything is codified and regu- first seized of the dispute, or has been decided in a lated, there is always some room for discretion, both in capital third State and the decision meets the conditions and maintenance orders. Child support is the top priority for necessary for it to be recognized in Québec; judges, and they will render orders to make sure children are (5) the outcome of a foreign decision is manifestly not deprived. inconsistent with public order as understood in international relations; 2.5 If a couple agrees on financial matters, do they (6) the decision enforces obligations arising from the need to have a court order and attend court? taxation laws of a foreign State.” If the parties were married and they agree on financial matters, 1.7 Does your jurisdiction allow separation or nullity it is still necessary to obtain a court order (although they might proceedings? not have to attend court) in order to have their divorce finalised. Moreover, a judgment is necessary in order for third parties to Yes. Judgments regarding both separation as to bed and board be able to obtain the execution of the parties’ agreement. (Art. 493ss C.C.Q.) and nullity of marriage (Art. 380ss C.C.Q.) can be pronounced. 2.6 How long can spousal maintenance orders last and are such orders commonplace? 1.8 Can divorce proceedings be stayed if there are proceedings in another country? The duration of spousal maintenance orders varies on a case- by-case basis. Some judgments will provide a specific duration Yes. However, it is not automatic. The criteria for such requests based on the parties’ situation (age, duration of the marriage, can be found in Book Ten: Private International Law of the Civil financial situation, professional situation, etc.), while others will Code of Québec. It is at the discretion of the judge. not specify any. It is also possible for a judge to order that a lump sum be paid as spousal support. 22 Finances on Divorce Spousal support used to be a lot more common when it was the norm for women to stay home and men to work. Since then, it is becoming less common since both spouses usually work and 2.1 What financial orders can the court make on are able to be financially independent. divorce?

The court can make orders on the partition of the family patri- 2.7 Is the concept of matrimonial property recognised in your jurisdiction? mony (which includes the family residence, secondary residence, movables included in both residences, family vehicles, pension plans whether private or governmental, Registered Retirement Refer to question 2.1, where the notion of the family patrimony Savings Plan (RRSP) and Québec Pension Plan (RRQ)), is explained. It does exist.

Family Law 2021 42 Canada – Québec

2.8 Do the courts treat foreign nationals differently on can include a range of clauses, including the chosen matrimonial divorce? If so, what are the rules on applicable law? Can regime and successoral provisions. However, to be enforceable, the court make orders applying foreign law rather than these marriage contracts must be notarised and must respect the the law of the jurisdiction? rules of the partition of family patrimony as well as those of the chosen matrimonial regime (for example, a couple could not Everybody is treated equally in divorce procedures and in all include a clause specifying that the sums they contribute to their other family matters. Since the criterion for the jurisdiction of personal RRSPs following the marriage will not be partitioned). the court is residence, nationality has no bearing. Foreign law If the agreement is a foreign agreement, it must respect public might be applicable in the case of a divorce to explain and apply order, as well as Québec law. the foreign matrimonial regime. The foreign law must then be alleged and brought into evidence; otherwise Québec law will 3.2 What are the procedural requirements for a marital apply with regard to the matrimonial regime. agreement to be enforceable on divorce?

2.9 How is the matrimonial home treated on divorce? The party who wishes to make a claim based on the marriage contract must include a specific conclusion to this effect in their Since the matrimonial home is part of the family patrimony, it divorce application and file the marriage contract into evidence. will be included in the patrimony and the total net value of the The marriage contract must be notarised. patrimony will be divided equally (though one or both of the spouses may benefit from certain deductions provided at Art. 3.3 Can marital agreements cover a spouse’s 418 C.C.Q.). There is a possibility for an unequal division of financial claims on divorce, e.g. for maintenance the family patrimony based on the brevity of the marriage, the or compensation, or are they limited to the election waste of certain property by one of the spouses, or the bad faith of the matrimonial property regime? Can they deal of one of them. with financial claims regarding children, e.g. child maintenance)?

2.10 Is the concept of “trusts” recognised in your No. These claims are dealt with at the time of the divorce and jurisdiction? If so, how? are directly related to the parties’ financial situations at that time. Marital agreements cannot deal with financial claims regarding Yes, it is. Our Civil Code codifies the notion at section 1260 et children, since child support is of public order. seq. There can be three types of trust: for personal purposes, or for purposes of private or social utility. 42 Cohabitation and the Unmarried Family

2.11 Can financial claims be made following a foreign 4.1 Do cohabitants, who do not have children, have divorce in your jurisdiction? If so, what are the grounds? financial claims if the couple separate? What are the grounds to make a financial claim? Yes. With regards to child or spousal support, they can be modified if one of the parties can demonstrate a change in Cohabitants without children do not have financial claim circumstances. per se. If they do own properties jointly, the general civil rules A party could also ask for the partition of the assets in Québec concerning partition of these properties will apply. There is if such were not dealt with in the foreign divorce proceedings. one exception and it is not related to civil law rules but to fiscal rules, which recognise that cohabitants of more than a year are 2.12 What methods of dispute resolution are available treated like a married couple. This entitles them to the parti- to resolve financial settlement on divorce? E.g. court, tion of their Québec Pension Plan, which is a pension plan that mediation, arbitration? everyone who works must contribute to. There are also some private pension plans, which apply the same criteria as the fiscal authorities regarding partitioning. Parties are encouraged to attend mediation sessions (in fact, if the parties have children, they are entitled to five free mediation sessions). It is possible to attend mediation before or during 4.2 What financial orders can a cohabitant obtain? divorce proceedings. There is also the process of collaborative law, which one can choose to negotiate with the other parties If a cohabitant has enriched the patrimony of the other to his and their attorneys. It is also possible to attend a settlement or her own detriment, he or she could make a claim under the conference which is presided by a Superior Court judge. notion of unjust enrichment which is codified at section 1493 of the Civil Code of Québec: a person who is enriched at the 32 Marital Agreements expense of another shall, to the extent of his enrichment, indem- nify the other for the latter’s correlative impoverishment, if there 3.1 Are marital agreements (pre- and post-marriage) is no justification for the enrichment or the impoverishment. enforceable? Is the position the same if the agreement is a foreign agreement? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? The notion of marital agreements in Québec is not the same as in other provinces or countries. In fact, they are not traditional From a legal point of view (versus a fiscal point of view), there is “prenups”. Our agreements are called “marriage contracts” and no formal partnership status for cohabitants.

Family Law 2021 Heyeur Jessop S.E.N.C.R.L. 43

4.4 Are same-sex couples permitted to marry or enter 5.5 Can a child or adult make a financial claim directly other formal relationships in your jurisdiction? against their parents? If so, what factors will the court take into account? Yes. Same-sex couples are permitted to marry or enter into a civil union. Yes, an adult child can make a financial claim for support if the adult child is still attending university and not residing with his 52 Child Maintenance or her parents. The court will consider: the child’s income; level of degree (for example, first vs third degree); the child’s monthly expenses; and the parents’ financial capacity. 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? 62 Children – Parental Responsibility and Parents can request child support, which is calculated according Custody to the provincial or Federal guidelines, depending on whether the parents were married or not and where they are currently 6.1 Explain what rights of custody both parents have in residing. They can also request that the special expenses for your jurisdiction, whether (a) married, or (b) unmarried? their children be shared between the parents. These special expenses can include private education, extracurricular activi- The parents, whether married or unmarried, have the same ties, dental and orthodontic fees, etc. rights towards their children, including custody rights.

5.2 How is child maintenance calculated and is it 6.2 At what age are children considered adults by the administered by the court or an agency? court?

When both parents live in the province of Québec, whether they A child is considered adult (or full-aged) by the court when he or were married or not, child support is determined according to she turns 18 years old. the provincial guidelines. The parties must fill out the child support determination form, which calculates the available 6.3 What is the duration of children orders (up to the revenue of both parties in order to determine the amount of age of 16 or 18 or otherwise)? child support that is payable. The income of both parents is taken into consideration. When one parent lives in Québec and the other lives in Until the child is 18 years old or until they have completed their another province or country and the parties are divorced, then studies, enabling them to work. the Federal guidelines are applied. Finally, if one parent lives in Québec and the other lives in 6.4 What orders can the court make in relation to another province of country but the parties were not married, children? Does the court automatically make orders in then the Québec guidelines are applied. relation to child arrangements in the event of divorce?

5.3 For how long is a parent required to pay child Most of the time, an application for divorce filed by a parent will maintenance or provide financial support for their include a request for custody, child support, relocation if need be children? For example, can a child seek maintenance and other matters. As child support is a public order, a parent during university? cannot renounce it.

A parent must pay child support or provide financial support 6.5 What factors does the court consider when making for their children until they are of full age and considered able orders in relation to children? to support themselves. Consequently, the parent providing support for their full-aged child can seek support from the other The court’s only consideration is the best interest of the children. parent while the child attends university. The full-aged child For financial orders, it will apply the guidelines and will take can also seek maintenance from both his parents while the child into account the financial situation of the parents, if relevant. is attending university.

6.6 Without court orders, what can parents do 5.4 Can capital or property orders be made to or for the unilaterally? For example, can they take a child abroad? benefit of a child?

A parent cannot do anything unilaterally concerning their chil- Child support is payable on a monthly basis. In order to secure dren unless otherwise specified in a court order. future child support payments, a parent can register a legal The only exception would be in the case of urgent medical mortgage on the property of the debtor. situations when it is a question of life or death. The court might also decide that part of the child support or all of it be paid as a lump sum. The court may order that a trust be constituted for managing the lump sum and securing 6.7 Is there a presumption of an equal division of time the payments. between separating or divorcing parents?

No. The sole criteria applicable is the best interest of the children, which does not mean that they should share their time equally between their parents.

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6.8 Are unmarried parents treated in the same way 7.3 If the court is making a decision on relocation of a as married parents when the court makes orders on child abroad, what factors are taken into account? separation or divorce? The court takes into account the factors laid out in the 1996 With regards to orders related to children, yes. Supreme Court decision “Gordon vs. Goertz”: “[49] (…) 6.9 Is a welfare report prepared by an independent 1. Each case turns on its own unique circumstances. professional or is the decision taken by the Judge alone? The only issue is the best interest of the child in the If so, does the child meet the Judge? particular circumstances of the case. 2. The focus is on the best interests of the child, not the A welfare report (or “psychosocial expertise”) is not system- interests and rights of the parents. atically prepared. In fact, if a party would like a report to be 3. More particularly the judge should consider, inter alia: prepared, they must ask the permission of the court and demon- ■ the existing custody arrangement and rela- strate why such a report is necessary. tionship between the child and the custodial Children rarely meet the judges, though they can be repre- parent; sented by an attorney who might request that the child meet the ■ the existing access arrangement and relation- judge. Again, the party who would like the child to be repre- ship between the child and the access parents; sented must present an application to the judge in order for them ■ the desirability of maximizing contact between to authorise the child to be represented. the child and both parents; ■ the views of the child; 6.10 Is there separate representation for children in your ■ the custodial parent’s reason for moving, only jurisdiction and, if so, who would represent them, e.g. a in the exceptional case where it is relevant to lawyer? that parent’s ability to meet the needs of the child; ■ disruption to the child of a change in custody; Separate representation for children by a lawyer is possible. As ■ disruption to the child consequent on removal explained above, an application must be made to the court in from family, school, and the community he or order for a lawyer to be appointed as the child’s representative. she has come to know. [50] In the end, the importance of the child remaining with 6.11 Do any other adults have a say in relation to the the parent of whose custody it has become accustomed in arrangements for the children? E.g. step-parents or the new location must be weighed against the continuance grandparents or siblings. What methods of dispute of full contact with the child’s access parents, its extended resolution are available to resolve disputes relating to family and its community. The ultimate question in every children? case is this: what is in the best interests of the child in all the circumstances, old as well as new?” No other adult has a say in relation to the arrangements for the children, though they can testify during the hearing in order to The above is the current status of the courts’ decision. With the new relay to the court their own experience with the children and Divorce Act coming into force in March 2021, this will change. their parents or extended family. 7.4 If the court is making a decision on a child moving 72 Children – International Aspects to a different part of the state/country, what factors are taken into account? 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? The same factors from Gordon vs. Goertz are taken into account for a move to a different city or province. It depends. If a judgment has been rendered and does not include specific orders with regards to relocation or change of 7.5 In practice, how rare is it for the custodial parent to residence, the custodial parent can, technically, move with the be allowed to relocate internationally/interstate? child without the other parent’s consent. However, if this move interferes with the other parent’s The custodial parent’s request to relocate internationally or access, then the other parent can file criminal charges against interstate is almost always granted. The situation might change the parent who has relocated with the child without his/her when the new Divorce Act comes into force. consent, even though the Hague Convention would not apply. If the judgment specified that neither parent can change the child’s residence without the authorisation of the other parent, 7.6 How does your jurisdiction deal with abduction then the custodial parent cannot move. cases? For example, is your jurisdiction a party to the Hague Convention?

7.2 Can the custodial parent move to another part of The province of Québec is party to the Hague Convention the state/country without the other parent’s consent? and has consolidated the principles and rules set out in the Hague Convention in the “Act Respecting the Civil Aspects of The answer is the same as above. Once you go out of the prov- International and Interprovincial Child Abduction”. ince of Québec, it is considered another State or country, even if one is still in Canada.

Family Law 2021 Heyeur Jessop S.E.N.C.R.L. 45

82 Overview 8.3 To what extent and how has the court process and other dispute resolution methods for family law been adapted in your jurisdiction in light of the COVID-19 8.1 In your view, what are the significant developments pandemic (e.g. virtual hearings, remote access, in family law in your jurisdiction in the last two years? paperless processes)? Are any of these changes likely to remain after the COVID-19 crisis has passed? The new Divorce Act is the most significant development in family law in Québec. It was supposed to come into effect on The Ministry of Justice has worked hard and with efficiency in July 1, 2020; however, due to the pandemic, this has been post- providing our Court of Appeals with a totally virtual system. poned to March 2021. The current Divorce Act dates back to For the Superior Court, where divorce cases and other family 1985. The new Divorce Act will address society’s new reality cases are heard, in the district of Montréal, more than 150 court with regards to relocation (although with COVID-19, who rooms have been equipped with equipment for virtual hearings. knows what will happen with these cases?). Moreover, all court rooms have been modified so that hearings can be held in the presence of the parties. All health measures 8.2 What impact, if any, has the COVID-19 pandemic have been appropriately applied and the system works. It is the had on family law in your jurisdiction to date, and is same for the district of Québec and other more remote districts likely to have over the next 12 months? will all be completely functional for September 2020. These changes are here to stay. There have been numerous requests to suspend access rights within the province. All decisions have maintained the current 8.4 What are some of the areas of family law which you access schedule in the best interest of the children. The courts think should be looked into in your jurisdiction? have been busy with these requests. The important question that remains to be adjudicated by our The new Divorce Act, which will come into force in March 2021, courts is that of international access rights – should the court will require a lot of adjustment on the part of the law commu- maintain access rights that are to be exercised abroad by a child nity. We will have to see how the province of Québec will adjust living in Québec? its law for the common law spouses, as well as for those going Another impact the pandemic has had on family law is the through a separation as to bed and board, since a lot of new delays to hearings – between mid-March and June 1, 2020, the provisions in the Divorce Act dealing with children, custody, large majority of hearings were postponed. These had some- access and relocation will become applicable in cases of divorce, times been set many months before and were postponed to but not for the children of common law spouses or those in the fall and even to 2021. We can only imagine that this will separation as to bed and board proceedings. increase the delays for setting down hearing dates in new files.

Family Law 2021 46 Canada – Québec

Sonia Heyeur has been a member of the Québec Bar since 1984, has developed a broad expertise in the prevention and resolution of child abduction and, over the past 20 years, in the field of international family law. For several years, she also worked in immigration law, and acted as an Immigration Judge (arbitre) from 1990 to 1992. Me Heyeur is particularly invested in cases involving child abduction (parental kidnapping), the application of the Hague Convention, international family law and domestic family law. Me Heyeur has spoken at several conferences for organisations including the Québec Bar, the International Society of Family Law, the Société québécoise de droit international, the Organization for the Protection of Children’s Rights and the Canadian Bar Association, always on the subjects of international child abduction and international family law. Me Heyeur has also contributed to several publications. Me Heyeur is a member of the Association des avocates et avocats en droit de la famille du Québec (AAADFQ), the Reunite organisation in the UK, the AIFI (Association internationale francophone des intervenants auprès des familles séparées), the IAFL (International Academy of Family Lawyers) and the ISFL (International Society of Family Law).

Heyeur Jessop S.E.N.C.R.L. Tel: +1 514 284 5618 ext. 201 442, Saint-Gabriel Street, Suite 001 Email: [email protected] Montréal, Québec, H2Y 2Z9 URL: www.heyeur-jessop-avocates.ca Canada

Shannon Jessop is a 2009 Université de Montréal graduate and member of the Québec Bar since 2011, having articled with Me Heyeur in 2010. She continued on at Heyeur Avocate as a lawyer in 2011 and, in 2018, partnered with Me Heyeur to form Heyeur Jessop. Me Jessop is passionate about international family law and has a particular interest in parental child abduction cases, as well as relocation cases. In order to obtain more knowledge on the matter and diversify Heyeur Jessop’s approach to the files they take on, Me Jessop took part in family mediation training in 2014, as well as distance learning in international mediation (though she is not licensed as a mediator). Me Jessop is a member of the Association des avocates et avocats en droit de la famille du Québec (AAADFQ) and the AIFI (Association internationale francophone des intervenants auprès des familles séparées). She is fluent in French and English, and can communicate in Spanish and Italian.

Heyeur Jessop S.E.N.C.R.L. Tel: +1 514 284 5618 ext. 202 442, Saint-Gabriel Street, Suite 001 Email: [email protected] Montréal, Québec, H2Y 2Z9 URL: www.heyeur-jessop-avocates.ca Canada

Heyeur Jessop is a boutique firm which focuses on international family law matters revolving around children, notably parental child abduction (Hague Convention and non-Convention cases), relocation and international divorce and custody cases. Passionate about the work we do, we make it a point to work on cases that we whole-heartedly believe in. Our approach is client-centred and each file is analysed and treated according to the client’s specific needs. Heyeur Jessop has, over the years, established an extensive network of specialists in many related fields who can contribute their knowledge and expertise in order to ensure that our clients obtain the best services possible. www.heyeur-jessop-avocates.ca

Family Law 2021 Chapter 8 47

England & Wales & Wales England

Charlotte Bradley

Kingsley Napley LLP Stacey Nevin

12 Divorce ■ the parties’ separation for two years or more, with the respondent’s consent; ■ the parties’ separation for five years or more (no consent 1.1 What are the grounds of jurisdiction for divorce required); or proceedings? For example, residence, nationality, ■ the respondent’s desertion of the applicant for a period of domicile, etc.? at least two years. The existing law also applies for the dissolution of civil part- At the time of writing, jurisdiction to commence divorce nerships, save that the fact of adultery is not available. Under proceedings in England and Wales is established under the current system, divorces can proceed uncontested and European Council Regulation no. 2201/2003 (“Brussels II”). usually do. Family law practitioners have campaigned for no The Courts of England and Wales will have jurisdiction for fault divorce for many years, without the need for a lengthy divorce proceedings where: period of separation, and a change to the law, introducing ■ the habitual residence of both spouses is in England and no fault divorce, has recently been introduced. The Divorce, Wales; Dissolution and Separation Act 2020 received Royal Assent on ■ the last habitual residence of both spouses was England 25 June 2020, and it is anticipated that the new law will come and Wales and one spouse still resides there; into force in Autumn 2021. Under this new law, one party will ■ the respondent’s habitual residence is in England and be able to cite in a statement that the marriage has broken down, Wales; without having to provide evidence of bad behaviour. Parties ■ the applicant’s habitual residence was in England and will also be able to make a joint application for divorce. A state- Wales for at least one year immediately before the applica- ment of irretrievable breakdown will be conclusive evidence that tion is made; the marriage has irretrievably broken down and the court must ■ the applicant’s habitual residence was in England and then make a divorce order. The new law will also apply to the Wales for at least six months and he/she is domiciled in dissolution of civil partnerships. England and Wales; ■ both spouses are domiciled* in England and Wales; and 1.3 In the case of an uncontested divorce, do the ■ where the Court of no other EU Member State (party to parties need to attend court and is it possible to have a Brussels II) has jurisdiction for divorce proceedings, juris- “private” divorce, i.e. without any court involvement? diction can be based on the domicile* in England and Wales of one of the spouses. No. The first decree of divorce, decree nisi, is pronounced in open Following the United Kingdom’s exit from the European court but the parties do not need to attend. The second and Union, from 1 January 2021, Brussels II will no longer apply to final decree of divorce, decree absolute, is sent out to both parties the UK. In England & Wales, the current proposal is to amend on paper. The Divorce, Dissolution and Separation Act 2020 its domestic legislation to replicate the jurisdiction provisions will not change this, and parties will not be required to attend for Brussels II, save that the provisions will be extended to court. The terminology will change, however, from decree nisi include the ground of sole domicile of either party. and decree absolute to “conditional order” and “final order”. *Note that domicile is a UK concept and does not mean residence. 1.4 What is the procedure and timescale for a divorce?

1.2 What are the grounds for a divorce? For example, A divorce petition/application is issued and served on the is there a required period of separation, can the parties have an uncontested divorce? respondent. The respondent completes an acknowledgment of service which is returned to the Court. The applicant can then apply for the first decree of divorce, decree nisi. Six weeks and There is one ground for divorce in England and Wales: the irre- one day after decree nisi, the applicant can apply for decree absolute. trievable breakdown of the marriage. The respondent can apply a further six months later, if the appli- At the time of writing, this ground is then proven with refer- cant has not done so. ence to one of five facts: In an uncontested divorce, subject to court delays, the process ■ the respondent’s adultery (with a person of the opposite takes approximately four months. sex); If there are court delays or the respondent delays in returning ■ the respondent’s unreasonable behaviour; the acknowledgment of service, the timescale will be longer.

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The new online divorce procedure is often quicker than submit- (3) both spouses were nationals of that State; ting petitions directly to the court, with less scope for court delays. (4) the petitioner was a national of that State and one of the The mandatory time scale of no less than six weeks and one day following further conditions was fulfilled: between decree nisi and decree absolute still applies, however. (a) the petitioner had his habitual residence there; or When The Divorce, Dissolution and Separation Act 2020 (b) he had habitually resided there for a continuous comes into force, the period between the conditional order and the period of one year falling, at least in part, within the final order (previously decree nisi and decree absolute, respectively) two years preceding the institution of the proceed- will be extended from six weeks and one day to six months and ings; or it looks set to impose a minimum six-month period between the (5) the petitioner for divorce was a national of that State and lodging of a petition to the divorce being made final. both the following further conditions were fulfilled: (a) the petitioner was present in that State at the date of 1.5 Can a divorce be finalised without resolving other institution of the proceedings; and associated matters? For example, children and finances. (b) the spouses last habitually resided together in a State whose law, at the date of institution of the proceed- Yes. Children and financial issues are addressed separately to ings, did not provide for divorce. the divorce in England and Wales and there is no requirement for the Court to be involved in either aspect before the decree 1.7 Does your jurisdiction allow separation or nullity absolute (the final step in the divorce) can be granted. proceedings?

1.6 Are foreign divorces recognised in your Yes; England and Wales has processes for both Judicial jurisdiction? If so, what are the procedural requirements, if any? Separation and Nullity, although they are rarely used in practice.

Yes, in certain circumstances. The rules are set out in the 1.8 Can divorce proceedings be stayed if there are Family Law Act 1986 and, as between EU Member States (not proceedings in another country? Denmark), in Brussels II. At the time of writing, however, Brussels II will cease to apply to the United Kingdom from 1 Yes, they can. January 2021 (unless the Brexit transitional period is extended Within the EU, Brussels II provides for mandatory stays or the UK and the EU enter into a bespoke agreement). where there are proceedings first seized in another Member As between EU Member States, a judgment, i.e. divorce in State. The United Kingdom will remain subject to Brussels II a Member State is recognised by other Member States without until at least 1 January 2021 (it is understood that this period is a special procedure. This remains the case with the United unlikely to be extended). Thereafter, in the absence of a bespoke Kingdom until 1 January 2021. Thereafter, the UK will treat agreement between the United Kingdom and the EU, EU coun- EU countries in the same manner it treats non-EU countries. tries will be dealt with in the same manner as non-EU countries. As between non-EU countries, the Family Law Act 1986 distin- Under Schedule 1, paragraph 9 of the Domicile and Matrimonial guishes between “proceedings” and “non-proceedings” divorces. Proceedings Act 1973 the court has discretion to impose a stay An overseas divorce obtained by proceedings is recognised if the divorce is effective under the law of the country where it was of proceedings if there are proceedings in another country, if it obtained and either party to the marriage was habitually resi- considers it is in the balance of fairness to do so. dent, domiciled or a national of the country of divorce. The Domicile and Matrimonial Proceedings Act 1973 provides If the divorce was not obtained by proceedings, it is recog- for a mandatory stay when there are proceedings elsewhere in the nised if: British Isles. It also provides for discretionary stays when there ■ the divorce is effective under the law of the country in are proceedings in another jurisdiction. which it was obtained; ■ at the relevant date, each party was domiciled in that 22 Finances on Divorce country or either party was domiciled in that country and the other party was domiciled in a country under whose 2.1 What financial orders can the court make on law the divorce is recognised as valid; and divorce? ■ neither party to the marriage was habitually resident in the UK for the period of one year before the date of the divorce. The United Kingdom is a signatory to the 1970 Hague The Court’s powers are set out in ss22–24 of the Matrimonial Convention on the Recognition of Divorces and Legal Causes Act 1973. The Court can make the following financial Separations (“the 1970 Hague Convention”). In respect of orders: signatories to the 1970 Hague Convention (subject to any reser- ■ Maintenance pending suit (interim maintenance). vations or extensions), England & Wales will recognise divorces ■ Payment in respect of legal services (costs of proceedings). and legal separations in all other contracting states if, at the date ■ Periodical payments (maintenance/alimony). of the institution of the proceedings in the State of the divorce ■ Lump sum(s). or legal separation (hereinafter called “the State of origin”), one ■ Periodical payments for the benefit of a child of the family of the following apply: (child maintenance). (1) the respondent had his habitual residence there; ■ Secured periodical payments. (2) the petitioner had his habitual residence there and one of ■ Property adjustment (transfer of property). the following further conditions was fulfilled: ■ Sale of property. (a) such habitual residence had continued for not less ■ Settlement of property. than one year immediately prior to the institution of ■ Varying an ante-nuptial or post-nuptial settlement. proceedings; or ■ Pension sharing and pension adjustment. (b) the spouses last habitually resided there together;

Family Law 2021 Kingsley Napley LLP 49

2.2 Do matrimonial regimes exist and do they need to 2.5 If a couple agrees on financial matters, do they be addressed by the court on divorce? Is there a default need to have a court order and attend court? matrimonial regime? It is not obligatory to have a court order but it is advisable to There is no concept of matrimonial regimes under the law of ensure the parties’ agreement is recorded and that financial England and Wales and there is, therefore, no default regime. claims are dismissed to avoid either party applying for finan- Other countries believe that we have a “separation of property” cial provision in the future (which they can do even though they regime as spouses are treated separately during the marriage, i.e. are divorced). The parties do not usually need to attend court they are not automatically responsible for the other’s debts, but for their agreement to be approved by the Court. A “Consent we do not have property regimes. Order” recording their agreement is lodged at court for approval by a Judge who will consider the fairness of the order and the 2.3 How does the court decide what financial orders to parties’ financial circumstances. make? What factors are taken into account? 2.6 How long can spousal maintenance orders last and The Court has regard to the following factors set out in s25 of are such orders commonplace? the Matrimonial Causes Act 1973: ■ all the circumstances of the case and first consideration Spousal maintenance orders are commonplace, particularly will be given to the welfare of a minor child; where there are children of the family and/or there is a disparity ■ the parties’ income, earning capacity, property and other in earnings as between the parties. The Court has a duty to financial resources (now or in the foreseeable future), consider capitalising spousal maintenance and will do so if the including any increase in earning capacity, which it would parties have sufficient capital. be reasonable to expect a party to the marriage to take Spousal maintenance orders can be for any duration including steps to acquire; for the parties’ joint lives (i.e. until the death of either party). ■ the financial needs, obligations and responsibilities which A common term of spousal maintenance is until the children each of the parties to the marriage has or is likely to have reach maturity or cease full-time education. Spousal mainte- in the foreseeable future; nance orders automatically come to an end when the recipient ■ the standard of living enjoyed by the family before the remarries. Cohabitation is a relevant factor but will not auto- breakdown of the marriage; matically bring an end to spousal maintenance orders. England ■ the age of each party to the marriage and the duration of and Wales are considered generous in terms of their approach on the marriage; maintenance but the Court’s approach to whether a term order ■ any physical or mental disability of either of the parties to or joint lives order should be made can vary across the country. the marriage; ■ the contributions which each of the parties has made or is 2.7 Is the concept of matrimonial property recognised likely in the foreseeable future to make to the welfare of in your jurisdiction? the family, including any contribution by looking after the home or caring for the family; ■ the conduct of each of the parties, if that conduct is such Yes, even though we do not have formal property regimes, the that it would in the opinion of the Court be inequitable to Court deals with concepts of matrimonial and non-matrimonial disregard it; and property (property brought into the marriage or inherited from ■ the value to each of the parties to the marriage of any third parties) and can treat them differently when deciding what benefit which, by reason of the dissolution or annul- orders to make. Generally non-matrimonial property is brought ment of the marriage, that party will lose the chance of into account only if it is required to meet both parties’ needs. acquiring. The Court has regard, in particular, to the principles set out in 2.8 Do the courts treat foreign nationals differently on case law, namely needs, sharing (and equality of assets built up divorce? If so, what are the rules on applicable law? Can during the marriage) and compensation. the court make orders applying foreign law rather than the law of the jurisdiction?

2.4 Is the position different between capital and maintenance orders? If so, how? No. In family law, England and Wales operates on the basis of lex fori (law of the forum) and will not apply foreign law. Only English law will be applied by the English Court. The same factors set out in question 2.3 above are considered when making both capital and maintenance orders. However, case law confirms that capital and maintenance orders 2.9 How is the matrimonial home treated on divorce? are very different (although they interplay) and, whilst matrimonial capital may be divided equally on divorce (the sharing prin- The English Court will consider all financial resources, whether ciple), future income is not shared equally and maintenance orders they are in joint or sole names. In English law we have concepts are generally calculated by reference to “needs”. The Court has of “matrimonial” and “non-matrimonial” property. The matri- a duty to consider whether a party can adjust to a termination of monial home is treated differently to other assets and will maintenance without undue hardship, and whether a clean break often be treated as matrimonial property whatever its origins (i.e. no ongoing maintenance claims) is appropriate. (although that does not necessarily mean an equal division of the property). In the case of Miller/McFarlane [2006] UKHL 24; [2006] 2 A.C. 618 Lord Nicholls said:

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“The parties’ matrimonial home, even if this was brought 32 Marital Agreements into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As 3.1 Are marital agreements (pre- and post-marriage) already noted, in principle the entitlement of each party to enforceable? Is the position the same if the agreement is a foreign agreement? a share of the matrimonial property is the same however long or short the marriage may have been.” Marital agreements are not automatically enforceable in England and Wales and there is no provision in our statute to provide 2.10 Is the concept of “trusts” recognised in your for the enforceability of such agreement. The jurisdiction of jurisdiction? If so, how? the Court of England and Wales to order financial provision on divorce cannot be ousted by the parties’ agreement. However, Yes. English law recognises Trusts (where property is held by our case law has developed rapidly over the last six years and as one party for the benefit of another) and they regularly appear in a result of the UK Supreme Court case of Radmacher v Granatino divorce proceedings. The English Court can take into account [2010] UKSC 42, the case law now says that the Court should available resources from a Trust (interest in a Trust and distri- give effect to a nuptial agreement that is freely entered into by butions/income from a Trust). The English Court has power to each party with a full appreciation of its implications unless, in vary a Trust insofar as it is a nuptial settlement capable of vari- the circumstances prevailing, it would not be fair to hold the ation s24(c) Matrimonial Causes Act 1973. The Court can also parties to their agreement. join Trustees to financial proceedings on divorce. When deciding whether it is fair to hold the parties to a pre-nuptial agreement at the time of the divorce, the burden 2.11 Can financial claims be made following a foreign is now on the person seeking to set aside the agreement and a divorce in your jurisdiction? If so, what are the grounds? number of factors have been identified as relevant. For example, the parties must enter into the agreement of their own free will. Duress or undue pressure could reduce the weight that Yes. Following a foreign (proceedings) divorce, either party is given to the agreement and could even negate it completely. has a potential claim in England and Wales if he/she can The Court will look at the parties’ circumstances at the time the come within the provisions under the Matrimonial and Family agreement was entered into (age, maturity and emotional state) Proceedings Act 1984. Remarriage prevents a claim by that in considering whether the parties understood the implications party. Permission of the Court is required to make a claim. The of the agreement and whether they intended it to be effective. Court has jurisdiction in the following circumstances: Whether the parties obtained independent legal advice and the ■ if either party was domiciled in England and Wales on the level of financial disclosure will also be relevant. date of application or date of divorce; Any children of the marriage remain an overriding consider- ■ if either party was habitually resident in England and ation and the terms of the agreement (with particular attention Wales for the period of one year before the application or on needs) should still result in a “fair” outcome. The closer the the date of divorce; and effect of an agreement to an outcome that the Court would find ■ if either or both parties had at the date of application a to be fair, with needs met, the more likely it is to be upheld in beneficial interest in possession in a property in England the future but the agreement does not need to mirror what the which was at some time during the marriage a matrimonial Court would award if there had been no agreement. home. The position in relation to a foreign agreement will depend on The Court will consider whether it is appropriate to make an the circumstances of the case but all of the above considerations order in England and Wales with regard to: will be relevant and, in particular, the Court will look at the ■ the connection which the parties have to England and parties’ intentions at the time of the agreement. For example, Wales; was the foreign agreement a full agreement dealing with future ■ the connection with the country of divorce and any other claims in the event of a divorce or a simple contract to choose country; the couple’s property regime which does not mention a future ■ any financial benefit already received/likely to be received separation? as a consequence of the divorce; ■ the extent to which any foreign order has been complied with; 3.2 What are the procedural requirements for a marital ■ any right which the applicant has to apply for financial agreement to be enforceable on divorce? relief outside of England and Wales; ■ the availability of property in England and Wales and the There are no procedural requirements because the agreement extent to which any order is likely to be enforceable; and is not automatically enforceable, but the Law Commission and ■ the length of time which has elapsed since the divorce. case law guidance confirms that certain safeguards should be in place to assist with the enforceability of such an agreement: 2.12 What methods of dispute resolution are available ■ each party should have independent legal advice on the to resolve financial settlement on divorce? E.g. court, terms and effect of the agreement; mediation, arbitration? ■ the agreement should be entered into 28 days before the wedding; and The parties can agree a financial settlement themselves, engage ■ each party should give material disclosure of their finan- in a court process, or use other dispute resolution methods of cial circumstances. mediation, collaborative law, private judging or arbitration. As these guidelines are not yet in statute, an agreement can still be upheld without those safeguards.

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3.3 Can marital agreements cover a spouse’s financial 52 Child Maintenance claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? Can they deal with financial claims 5.1 What financial claims are available to parents on regarding children, e.g. child maintenance)? behalf of children within or outside of marriage?

A marital agreement can deal with capital or income claims, or Parents can make income/maintenance and capital claims on both. As we do not have matrimonial property regimes in our behalf of children under s15 and Schedule 1 to the Children Act jurisdiction, an English pre- or post-nuptial agreement would 1989 (known as Schedule 1 claims). Capital claims are limited not elect a matrimonial property regime. to housing/settlement of property claims (returned to the payer It is not possible for parties to contract out of child mainte- when the child reaches majority) and lump-sum claims to cover nance. Marital agreements, however, can set out how parties capital expenditure for the child. Claims for legal costs can also wish child maintenance to be calculated, including whether it be made. should be payable until the child is 18 years old or completion of tertiary education. If at the time of the divorce, jurisdiction 5.2 How is child maintenance calculated and is it for Child Maintenance lies with the Child Maintenance Service administered by the court or an agency? (“CMS”), the court will not be in a position to make an order in accordance with the terms of the marital agreement, unless the parties agree. If jurisdiction for child maintenance lies with the Child maintenance will be determined either by the CMS or by court, the court is not bound by the terms of the marital agree- the Court. If the CMS has jurisdiction to deal with an applica- ment but will consider them as a factor in the case. Please see tion for child maintenance, the Court will not interfere unless section 5 below for further information. the parties agree to an order of the Court. The CMS will not have jurisdiction if one parent is abroad and the Court will also 42 Cohabitation and the Unmarried Family have jurisdiction if the payer earns in excess of the maximum assessment. The rates of child maintenance are determined under the 2012 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the child maintenance scheme (nil rate, flat rate, reduced rate, basic grounds to make a financial claim? rate and default rate) depending on gross income. Child maintenance is calculated on a percentage of gross salary basis. The calculations are complicated and depend on various scenarios Cohabitants, especially without children, have very limited but there is an online calculator at: http://www.cmoptions.org/ financial claims in England and Wales. Their financial claims e n/c a lc u l ator/. are limited to claims in relation to an interest in property which The maximum amount of gross weekly income that can be they can make under the Trusts of Land and Appointment of taken into account when the CMS calculates maintenance is Trustees Act 1996. £3,000. If the Court makes an award of child maintenance under 4.2 What financial orders can a cohabitant obtain? Schedule 1 it will consider the CMS calculation but can make a top-up award over and above the CMS rates with regard to a Under the Trusts of Land and Appointment of Trustees Act, a number of factors far wider than the CMS formula. It can take cohabitee can apply for: into account the carer’s own expenditure when making the child ■ a declaration in relation to the extent of a person’s interest maintenance order. As such, in high-net-worth cases where in property; and the parties are not married, child maintenance awards can be ■ an order for sale in relation to the property. significant. If there is a child, the cohabitant can make claims for the benefit of the child under Schedule 1 of the Children Act 1989 5.3 For how long is a parent required to pay child (see section 5 below). maintenance or provide financial support for their children? For example, can a child seek maintenance during university? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? Normally, until the age of 18/end of secondary education but In England and Wales, we now allow civil partnerships for the Court can specify a later date, usually when the child has heterosexual couples as well as homosexual couples. Civil part- completed a first degree at university. ners are entitled to the same financial protection as married A child can apply for child maintenance for him/herself in spouses in divorce. certain circumstances (e.g. for university education).

4.4 Are same-sex couples permitted to marry or enter 5.4 Can capital or property orders be made to or for the other formal relationships in your jurisdiction? benefit of a child?

Yes. The Marriage (Same Sex Couples) Act 2013 was passed on Yes; as set out above, the Court can order capital and housing 17 July 2013 and the first marriages of same-sex couples took for the benefit of a child. Property orders will only last for the place on 29 March 2014. Same-sex couples can also enter into child’s dependence and will then revert to the payer. The Court formal civil partnerships under the Civil Partnership Act 2004 does not consider children are entitled to capital themselves which came into force on 5 December 2005. To register a civil unless there are exceptional circumstances (e.g. severe disability partnership, the parties must sign a civil partnership document requiring long life care). in front of two witnesses and a registrar.

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5.5 Can a child or adult make a financial claim directly ■ specific issues, e.g. religion, schooling, change of name; against their parents? If so, what factors will the court and take into account? ■ prohibited steps, for example prohibiting travel. The Court can also make parental responsibility orders and Yes, in limited circumstances. A child who has reached the age of declarations of parentage in relation to a child, as well as parental 16 may apply for an order for periodical payments or a lump sum if orders (in surrogacy cases) and adoption orders. he or she is, will be or (if an order were made) would be receiving The Court does not automatically make orders in relation to a instruction at an educational establishment or undergoing training child following divorce proceedings. We have a “no order prin- for a trade, profession or vocation of if there are special circum- ciple” whereby the Court will only make an order in relation to stances which justify the making of an order. If the applicant is a child/children where necessary. Both parents retain parental a child over 18, he or she can apply against either or both parents responsibility following a divorce. as long as they do not live together and no order was in force with respect to him prior to reaching the age of 16. Where an 6.5 What factors does the court consider when making applicant is seeking periodical payments (maintenance), the Child orders in relation to children? Maintenance Service must have provided a maximum assessment of the potential payer’s income. The court will consider all of the circumstances of the case, the financial means of the parties, the The child’s welfare is the Court’s paramount consideration. A needs of the applicant child and the reasons for the application. court has regard, in particular, to: ■ the ascertainable wishes and feelings of the child concerned 62 Children – Parental Responsibility and (considered in the light of his/her age and understanding); ■ his/her physical, emotional and educational needs; Custody ■ the likely effect on him/her, of any change in his/her circumstances; 6.1 Explain what rights of custody both parents have in ■ his/her age, sex, background and any characteristics of your jurisdiction, whether (a) married, or (b) unmarried? his/hers which the Court considers relevant; ■ any harm which he/she has suffered or is at risk of The birth mother and a married father will always have parental suffering; responsibility for a child and retain it after divorce. Parental ■ how capable each of his/her parents, and any other person responsibility means all the rights, duties, powers, responsibil- in relation to whom the Court considers the question to be ities and authority which, by law, a parent has in relation to the relevant, is of meeting his/her needs; and child and his/her property. This means that both parents need ■ the range of powers available to the Court under the to agree the important decisions in the child’s life (e.g. educa- Children Act 1989 in the proceedings in question. tion) and one parent needs the other’s agreement to take them out of the jurisdiction, even for a holiday. 6.6 Without court orders, what can parents do An unmarried father will have parental responsibility: unilaterally? For example, can they take a child abroad? ■ es if h i registered on the birth certificate (after 1 December 2003); ■ e if h and the mother make a parental responsibility Without a court order, a parent cannot take a child abroad agreement; without the consent of the other parent with parental respon- ■ if the Court orders that he should have parental responsi- sibility. Any significant decisions in relation to the child’s bility; or upbringing will need to be taken by both parents together, or in ■ following fertility treatment under the provisions of the default of agreement, by the Court. Human Fertilisation and Embryology Act 2008. 6.7 Is there a presumption of an equal division of time 6.2 At what age are children considered adults by the between separating or divorcing parents? court? There is no presumption of an equal division of time, but there is Children are considered adults by the Court at age 18. a presumption that the child will spend time with both parents.

6.3 What is the duration of children orders (up to the 6.8 Are unmarried parents treated in the same way age of 16 or 18 or otherwise)? as married parents when the court makes orders on separation or divorce? Normally, until a child reaches age 16 but in exceptional cases until the age of 18. Yes, assuming the parents both have parental responsibility.

6.4 What orders can the court make in relation to 6.9 Is a welfare report prepared by an independent children? Does the court automatically make orders in professional or is the decision taken by the Judge alone? relation to child arrangements in the event of divorce? If so, does the child meet the Judge?

The Court can make Child Arrangements Orders in relation to A welfare report is prepared, if ordered by the Court, by a the following: court-appointed social worker (usually from the Children and ■ where the child is to live (previously called residence) Family Court Advisory and Support Service, “CAFCASS”). including shared residence; The CAFCASS officer (or independent social worker) will meet ■ where and when the child will spend time with another the child and report to the Court. A child can meet a judge, but parent (previously called contact); it is rare.

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6.10 Is there separate representation for children in your ■ the guidance is not confined to an application from the jurisdiction and, if so, who would represent them, e.g. a primary carer and can be applied in all relocation cases lawyer? should the judge deem it appropriate; and ■ the following key questions should be asked: Yes, it is available, but not in most cases. (1) Is the application genuine and not motivated by a desire to exclude the “left behind” parent from the child’s life? 6.11 Do any other adults have a say in relation to the (2) Is the application realistically founded on prac- arrangements for the children? E.g. step-parents or tical proposals that are both well-researched and grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to investigated? children? (3) What would be the impact on the applicant of a refusal of their realistic proposal? (4) Is the “left behind” parent’s opposition motivated by Court, mediation, arbitration and non-legal routes such as genuine concern for the child’s welfare or is it driven family therapy are available to help parties resolve disputes. The by an ulterior motive? Courts encourage mediation in children cases. (5) If the application is granted, what is the extent of the detriment to the “left behind” parent and their 72 Children – International Aspects future relationship with the child? (6) To what extent would that detriment be offset by the 7.1 Can the custodial parent move to another state/ development of the child’s relationship with their country without the other parent’s consent? extended family or homeland upon relocation? Three recent Court of Appeal cases, Re K [2011] EWCA Civ 79, No, the custodial parent cannot remove a child from the juris- F [2012] EWCA Civ 1364 and Re F [2015] EWCA Civ 882, have diction without either the prior written consent of each person clarified the Court’s approach. The focus must be on the child’s with parental responsibility or a court order granting permission best interests having regard to court guidance (i.e. the guidance (s13(1)(b) Children Act 1989). set by Payne) but such guidance and the factors set out are not However, the custodial parent (i.e. the person named in a presumptions but part of the overall welfare analysis. The second Child Arrangements Order as the person with whom the child Re F [2012] held that there is a need for the Court to carry out (1) lives ) can remove the child from the jurisdiction for a period of a holistic comparative balancing exercise of the realistic options less than one month without the other parent’s consent (s13(2) before the Court including the plans of both parents, and (2) a Children Act 1989). proportionality evaluation in respect of the interference with the established family life the children had with the other parent (so taking into account that the effect of an international relocation is 7.2 Can the custodial parent move to another part of such that the Article 8 rights of a child are likely to be infringed). the state/country without the other parent’s consent? In England and Wales, particularly in cases where there is a shared residence arrangement, the Courts are therefore increas- Unlike the position if one parent with parental responsibility ingly looking closely at the impact on the child of the reduced moves abroad without the other parent’s consent, it is not a time with the left behind parent. As such, it is now more diffi- criminal offence to move to a different part of the UK. Consent cult than in previous years for applicants to be successful in relo- of the other parent should be sought first, however, or, in the cation applications. absence of consent, permission of the court. If the custodial parent moves the child without consent, the other parent could 7.4 If the court is making a decision on a child moving seek an order requiring the return of the child. Each case will to a different part of the state/country, what factors are turn on its own facts. taken into account?

7.3 If the court is making a decision on relocation of a Please see the answer to question 7.3. The law as to relocating child abroad, what factors are taken into account? within the country has become more in line with applications to relocate outside England and Wales, in that the plans need to be Relocation applications (or “leave to remove” applications) well thought out and reasonable with proper consideration as to are subject to the welfare principle (s1(1) Children Act 1989) the future contact with the “left behind parent”. which dictates that the child’s welfare is the Court’s paramount consideration. 7.5 In practice, how rare is it for the custodial parent to Until recently, the leading authority on relocation was the case be allowed to relocate internationally/interstate? of Payne [2001] EWCA Civ 166. Under this precedent the Court considered the following: A study in 2012 by Dr. Rob George found that applications for ■ the welfare of the child; international relocation had a success rate of 66.7% (where 95% of ■ whether the application was genuine; and the applications in the study were brought by mothers who, in the ■ the impact on the applicant of a refusal. majority of the cases, were fairly clearly the child’s primary carer). The Court in Re TC and JC (Children: Relocation) [2013] EWHC The research also demonstrated the following: 292 (Fam) took the opportunity to consolidate the guidance on ■ the extent to which the child spends overnight time with the Court’s approach to relocation applications: both parents was important, with applications less likely ■ the only principle to be applied when determining a relo- to succeed where the child spends frequent overnight time cation application is that the welfare of the child is para- with both parents; mount and outweighs all other considerations; ■ where the applicant was in a new long-term relationship, ■ the guidance given in previous case law is valuable and they had a higher chance of succeeding; and helps the judge to identify which factors are likely to be ■ the greater the proposed distance of the relocation, the less most important; likely it was that the application would succeed.

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However, as decisions on relocation are made on a case-by- 8.2 What impact, if any, has the COVID-19 pandemic case basis through analysis of the welfare checklist, the guid- had on family law in your jurisdiction to date, and is ance (see question 7.2) should not be applied rigidly and the like- likely to have over the next 12 months? lihood of success depends on the individual facts of each case. On a practical level, there has been an increase in remote 7.6 How does your jurisdiction deal with abduction hearings, and the family courts and practitioners have had to cases? For example, is your jurisdiction a party to the quickly get used to new online platforms by which hearings are Hague Convention? conducted. Please see the answer to question 8.3. In respect of financial arrangements, the impact of COVID-19 England and Wales is a party to the Hague Convention on the at this time is difficult to quantify. Business valuations are likely Civil Aspects of International Child Abduction which is incor- to be affected, with some businesses no doubt finding it more porated into domestic law by the Child Abduction and Custody difficult to recover. Many businesses have had to seek the Act 1985. The same act gives the Court the jurisdiction to: support of government loans during the COVID-19 lockdown ■ order that a welfare report be prepared by the CAFCASS period, which will increase liabilities and may affect both the or a local authority (s6); capital value and any assessment of sustainable income. Some ■ declare that a child’s removal from the UK was wrongful business sectors have in fact benefitted from COVID-19, but (s8); whether such effects will be long term or short lived is unknown. ■ recognise and enforce the custody decisions of other coun- For many, income has been adversely affected by COVID- tries (Part II); and 19, whether due to a loss or reduction in bonus, pay reductions, ■ make wide-ranging interim orders against any person who furlough or redundancy. Where maintenance is being paid, the Court has reason to believe may have relevant informa- or likely to be paid, this raises questions of affordability and tion, to disclose this information in an attempt to find out possibly variation. the whereabouts of a child (s24A). In relation to children arrangements, the pandemic has led The Hague Convention is used between England and Wales many parents to change the arrangements for the division of and non-EU countries who have signed up to the Convention. parenting time (with many clients continuing to work at home The Child Abduction Act 1984 created the criminal offence of and children not attending school during lockdown) and we child abduction where a person connected with a child removes have seen an increase in children disputes as a result. or sends that child out of the jurisdiction without the appropriate consent. If convicted, the offending party is liable for a 8.3 To what extent and how has the court process and fine and/or imprisonment for a term not exceeding six months other dispute resolution methods for family law been (summary conviction) or imprisonment for a term not exceeding adapted in your jurisdiction in light of the COVID-19 seven years (conviction on indictment). pandemic (e.g. virtual hearings, remote access, In respect of EU countries, the UK will continue to apply paperless processes)? Are any of these changes likely to (and remains bound by) Brussels II until 1 January 2021 and in remain after the COVID-19 crisis has passed? cases of child abduction between England and Wales and other European countries the provisions of Brussels II are used (they In the initial aftermath of the UK lockdown, a number of court are similar to the provisions of the Hague Convention but with hearings were postponed, as courts closed and considered how more limited defences). From 1 January 2021, the UK will deal they could reopen safely. As courts began to reopen, many have with EU countries in the same manner as non-EU countries. had to operate with a reduced number of staff, due to social distancing guidance and/or because some staff were required to 82 Overview shield, and it is anticipated that the family court will not resume a full service until spring 2021. Whilst there has been an increase in remote hearings, to ensure cases can continue to be heard, 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? the initial closures have seen a backlog of cases which is likely to cause delays. Not all cases are suitable for remote hearings, and physical attendance at court is sometimes necessary in the No fault divorce will finally become law in late 2021, which interests of justice and fairness. Some courts (for example, the not only gives individuals a route to petitioning without having Central Family Court in London) have restricted the number of to cite examples of poor behaviour of the other party, but also lawyers who are permitted to attend per client (i.e. one barrister gives parties the option of filing joint petitions. This is hugely or one solicitor, but not both), and set limits on the number of symbolic for many people, and it is hoped it will make the witnesses who can attend in one day. process of divorce a little easier for many. The family courts have been quick to adapt, with consulta- It seems increasingly likely that the United Kingdom will tions organised to improve remote systems, and regular updates face a no deal scenario in respect of Brexit, unless the transi- from the head of the family division, Sir Andrew McFarlane. tion period is extended (the UK has recently formally rejected Equally, many practitioners have been quick to adapt; paper- an extension, so it is thought that an extension will now only be less working with electronic bundles is now the norm for many, granted if a deal is close to being reached). If this proves to be and many practitioners have invested in suitable platforms such the case, it will be a very uncertain period for family law practi- as Zoom, Skype for Business, Microsoft Teams etc., to ensure tioners and their clients dealing with UK/EU cases, as we start they can continue to conduct client meetings, without needing to navigate family law in the post-Brexit era, and many prac- to meet in person. titioners consider that there are likely to be a number of “test cases” in the first few years.

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Whilst the disruption and delay that COVID-19 has no doubt Pre-nuptial agreements is another area that many practitioners caused for many people is deeply unfortunate, many practi- believe needs reform – there is nothing in our statute that means tioners hope that it will lead to an increase in alternative dispute that pre-nuptial agreements are automatically enforceable and resolution, such as mediation, but also private hearings, and arbi- the Courts retain a significant discretion as to whether the trations, where social distancing can be accommodated more terms will be enforced on divorce. Like other areas of finance easily to ensure parties can attend with their representatives. on divorce, and, with an increasing number of self-represented Whilst some have concerns that this might lead to different tiers persons due to the withdrawal of legal aid, there are increasing of justice, as litigants have to pay for private judges, there are a calls for a reform of the approach to finances on divorce to number of cost-effective private judges and arbitrators offering make it simpler and less discretionary. The Divorce (Financial their services, and parties can often see a cost saving by avoiding Provision) Bill 2019–20 proposes to make pre- and post-nuptial lengthy delays. agreements binding. The Bill is not limited to pre-nuptial agreements, and some provisions remain controversial amongst some practitioners. The fate of the Bill remains to be seen. 8.4 What are some of the areas of family law which you think should be looked into in your jurisdiction?

The law for cohabitants is in dire need for reform, as cohabitees have very few rights when they separate from their partner – many cohabitees believe incorrectly that they automatically obtain rights by living with someone for many years.

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Charlotte Bradley is head of the Family team at Kingsley Napley, where she has been a partner since 2001. Charlotte specialises in all aspects of family law, including international issues, both in relation to finance (particularly cases of Schedule 1 provision for unmarried parents) and children (particularly relocation). She is also an accredited mediator and collaborative lawyer. She writes regular articles and has co-authored a number of books on family issues. She is the Contributing Editor for ICLG – Family Law and fellow of the International Academy of Family Lawyers. In the recent published legal directories, Chambers UK and The Legal 500, she has been described as “a complete delight”, “fantastic – she has all the attributes you want from an international family lawyer, and has warmth in abundance”, being “absolutely brilliant at jurisdictional elements of work”, “universally respected”, “an absolute star with a relaxed and authoritative style” and “a wonderful person with an excellent mind and exceptional client care skills”.

Kingsley Napley LLP Tel: +44 207 814 1279 Knights Quarter Email: [email protected] 14 St John’s Lane URL: www.kingsleynapley.co.uk London, EC1M 4AJ United Kingdom

Kingsley Napley LLP Tel: +44 207 369 3824 Knights Quarter Email: [email protected] 14 St John’s Lane URL: www.kingsleynapley.co.uk London, EC1M 4AJ United Kingdom

Family Law 2021 Chapter 9 57

France France

Diane Sussman’s Law Office Diane Sussman

12 Divorce enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property, sets that the court of 1.1 What are the grounds of jurisdiction for divorce a Member State seized to rule on divorce, legal separation proceedings? For example, residence, nationality, or marriage annulment, has jurisdiction on matters of the domicile, etc.? matrimonial property of the spouses.

The French court first applies the rules of Regulation (EC) 2201/2003 (“Brussels II bis”) which determines the jurisdiction 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties of an EU Member State in matters relating to divorce on the have an uncontested divorce? following alternative grounds: ■ habitual residence of spouses; ■ last habitual residence of spouses, insofar as one of them Divorce may be pronounced on the grounds of: still resides there; ■ mutual consent (uncontested divorce). This divorce needs ■ habitual residence of the respondent; an agreement of both parties on the principle of divorce ■ in the event of a joint application, habitual residence of one and all its consequences; spouse; ■ acceptance of the principle of the breakdown of the ■ habitual residence of the applicant who resided there for at marriage. The spouses agree on the principle of the least a year immediately preceding the application; divorce but disagree on matters related to children and ■ habitual residence of the applicant who resided there for ancillary relief, which are dealt by the family judge; at least six months immediately preceding the application ■ definitive alteration of the bond of marriage. For divorce and is either a national of the Member State in question; or requests entered into before January 1, 2021, it is automat- ■ nationality of both spouses or, in the case of the United ically pronounced by the court if one spouse establishes Kingdom and Ireland, domicile of both spouses. two years of separation without reconciliation at the time Case law defines habitual residence as the country where a of lodging the petition for divorce; the March 23, 2019 party has fixed his permanent or habitual centre of his interests. Justice reform, which comes into force January 1, 2021, has This is a question of facts. lowered the requirement to a one-year separation (cf. ques- If no EU jurisdiction is designated by the Brussels II bis tion 1.4 below); and Regulation, the French court shall have jurisdiction according ■ fault, which is pronounced when a party establishes facts to French internal rules, which are mainly based on the French which constitute a serious or renewed violation of the citizenship of petitioner or defendant (sections 14 and 15 of the duties of marriage which makes marital life unbearable Civil Code). These rules aiming to designate French jurisdic- (for instance, adultery, domestic violence, desertion of the tion based on French international rules may only apply against marital home…). a defendant who does not have his habitual residence in an EU Member State, nor an EU citizenship. 1.3 In the case of an uncontested divorce, do the Even though the French court has jurisdiction to pronounce parties need to attend court and is it possible to have a the divorce, its jurisdiction regarding ancillary matters is not “private” divorce, i.e. without any court involvement? automatic. In relation to: ■ parental responsibility, the Brussels II bis Regulation is The law changed in November 2016 on uncontested divorces applied (articles 8 to 15); and entered into force on January 1, 2017. As of this date, except ■ maintenance obligations, Regulation (EC) 4/2009 on in cases where a child asks to be heard by the judge or where a jurisdiction, applicable law, recognition and enforcement spouse is under guardianship measures, the divorce agreement of decisions and cooperation is applied (articles 4 to 7); and is no longer subject to judicial homologation. ■ the division of assets: for marriages celebrated before Parties no longer need to attend court. Each spouse must be January 29, 2019, French jurisdiction is determined on represented by an attorney. Both attorneys draft a project of the ground of the residence in France of the family or agreement which they submit to their clients for review. Once the defendant, or on the ground of the French nationality they reach an agreement, the final contract is sent to the parties of one spouse; and for marriages celebrated afterwards, by certified mail, which they can sign after a 15-day delay upon article 5-1 of Council Regulation 2016/1103 implementing receipt. The contract is then countersigned by the attorneys and

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handed over to the notaire who lodges the deed and annexes at including a proposal for the division of the assets. Interim the rank of his minutes. The role of the notaire is essential as he measures are not mandatory anymore. If a party seeks ensures legal formal compliance of the agreement and confers such measures, they must be contained in an independent its enforceability. section of the divorce petition or be the subject of a sepa- Where there is an international element (foreign nationality, rate submission. In that case, the pre-trial judge may grant foreign residency, etc.), practitioners must be very cautious about interim measures, regarding custody and visitation rights resorting to this extrajudicial process. Indeed, other countries over the children during the procedure, temporary main- might not recognise this type of private agreement as a valid tenance for the impoverished spouse and the children, and divorce. authorise one spouse to remain in the matrimonial home. Within the European union, judicial divorces are recognised ■ The preliminary hearing (called “orientation hearing”) by operation of the EU “Brussels II bis” Regulation. However, aims at an exchange between the parties, their lawyers the Court of Justice of the European Union ruled in 2017 that, as and the judge to decide on the next steps of the proce- French divorces by private agreement may not be equated to judi- dure, by redirecting to a mediation or setting a timetable cial orders, they do not fall within the scope of the EU Regulations, for proceedings. The aim is to facilitate agreements, but hence the recognition of those being left to rely on each EU State’s also to condense it in order to speed it up. good will, as it is for all other foreign, non-EU states. In litigations with international elements, this new procedure Moreover, even though the deed is registered by a notaire, it has two major interests: is not considered an authentic instrument according to EU law, ■ the parties can be represented by their lawyers and no which also hampers its circulation within the EU. longer systematically have to be present in person, as was To solve this issue, the EU drew up the new Council previously the case; and Regulation (EU) 2019/1111 of June 25, 2019 (“Brussels II ter”). ■ the unification of the previous two-stage divorce process Its article 65 provides that agreements on divorces have binding might allow a decrease of the required servicing, which, in legal effect in the Member State of origin, thus they shall be the case of service abroad, leads to costs and longer delays. recognised in other Member States without any special procedure. As a consequence, under Regulation “Brussels II ter”, 1.5 Can a divorce be finalised without resolving other which enters into force on August 1, 2022, the European circu- associated matters? For example, children and finances. lation of the conventional French divorce will be ensured automatically between Member States. However, practitioners will In regard to uncontested divorce, the divorce agreement must have to remain cautious when dealing with countries outside the settle all matters at stake deriving from the divorce itself (i.e. European Union, including regarding the enforcement of such the use of marital name, child custody, maintenance obligations, an agreement as to the consequences of the divorce (financial division of assets). and children) outside French borders. In the case of contested divorces, unless the French court has no jurisdiction on one of these issues, the final divorce judgment 1.4 What is the procedure and timescale for a divorce? rules on all others matters (e.g. the French court might have jurisdiction to rule on the divorce, because both spouses are In the case of a divorce by mutual consent, which is conven- French citizens, but no jurisdiction to rule on parental responsibility, because the children do not reside in France but in tional, the procedure has been outlined above (cf. question 1.3). another Member State and one of the parents denies the proro- The timescale for these divorces depends on the time it takes for gation of jurisdiction). the parties and their lawyers to reach an agreement and on the It is also important to note that the liquidation of the matri- time taken to draw up said agreement. monial regime is not always decided by the judge at the same With regard to contentious divorces, as of January 1, 2021, the time as the divorce is granted. This is only the case if a deed of procedure has been modified. liquidation is already drawn up by a notaire at that time and if the Beforehand, the procedure consisted of two stages: parties do not disagree. Otherwise, the judge will rule later on ■ Interim measures step: the applicant first lodges a divorce this question. request at the local family court. After a preliminary hearing where the presence of the parties is required, an interim order is delivered (“non-conciliation order”) 1.6 Are foreign divorces recognised in your through which the family affairs judge mainly authorises jurisdiction? If so, what are the procedural requirements, the spouses to live separately, determines custody and visi- if any? tation rights over the children during the procedure, sets temporary maintenance for the impoverished spouse and For a foreign divorce to be recognised in France, the interested the children and authorises one spouse to stay in the matri- party must seek its transcription on the French civil registers of monial home. the city of the marriage. On this occasion, if the registrar denies ■ Divorce step: one spouse lodges the divorce petition the transcription, the party is left with no other alternative than up to 30 months after the temporary order. The judge applying for an exequatur before the court. pronounces the divorce, rules again on custody and visi- In any case, requirements for the recognition of foreign divorces tation rights over the children, sets the maintenance for will depend on the country from which the decision comes. the children, as well as the financial support to be paid for If a divorce is granted in EU Member States (except for the impoverished spouse (compensatory allowance) and Denmark), Brussels II bis Regulation provides that judgments proceeds to the division of assets in accordance with the given in Member States shall be recognised in the other Member matrimonial property regime of the parties. States without any special procedure being required, with some As of January 1, 2021, the March 23, 2019 Law came into exceptions (articles 21 and 22). force and unified the two stages. From now on: If a divorce is granted in a non-EU Member State: in the ■ Divorce proceedings are instituted by a single divorce peti- absence of a specific bilateral or multilateral international tion, which shall contain the claims on all the ancillaries, convention regarding the recognition of foreign judgments,

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foreign divorces are recognised in France through a specific mandatory anymore (cf. question 1.4 above). When appropriate, proceeding: an interim order can set interim monthly maintenance for the ■ the jurisdiction of the foreign court: there shall be strong impoverished spouse and the children. connection factors of the case with the foreign jurisdic- As concerns the final decree of divorce, it: tion, and the French court must not have exclusive juris- ■ determines the compensatory allowance to be paid for the diction over the case; impoverished spouse (“prestation compensatoire”), if needed. ■ the compatibility of the foreign judgment with French This allowance aims to compensate, as far as possible, the “public policy”: the foreign order must ascertain that a fair disparity that the breakdown of the marriage creates in the process was followed (procedural public policy) and must respective standards of living; and not strike the essential values which underpin the French ■ orders the division of assets in accordance with the prop- legal system (substantial public policy); and erty regime of the parties and appoints a notaire to divide ■ the absence of fraud: the French court must ensure that the the properties. petitioner did not fraudulently evade another law. 2.2 Do matrimonial regimes exist and do they need to 1.7 Does your jurisdiction allow separation or nullity be addressed by the court on divorce? Is there a default proceedings? matrimonial regime?

Both exist. As in many countries of continental Europe, France uses the (a) An application for a decree of judicial separation (“sépa- concept of the matrimonial property regime, which is indeed ration de corps”) can be lodged if one of the grounds for addressed by the family judge upon divorce. divorce exists. Most of its provisions are similar to the To determine which law rules the matrimonial regime of divorce provisions. This procedure authorises spouses to the spouses, three conflict of law systems coexist in France, live separately. All other duties of the marriage remain. depending on the date of marriage: The reform of family procedure previously mentioned (cf. ■ if the spouses married before September 1, 1992: French case law question 1.4 above) allows the parties to settle the sepa- states that the judge has to seek the will of the spouses on ration through a private agreement countersigned by the circumstantial evidence. The preponderant factor was the spouses’ lawyers and registered by the French notaire. country where they established their first residence right (b) The annulment of the marriage shall be obtained: if the after the union; essential requirements for the formation are not met (an ■ if the spouses married after September 1, 1992: the 1978 Hague error as to the identity of the person or her/his substantial Convention concerning the law applicable to the matrimo- characteristics, duress); in the case of absence of authori- nial property regime applies. Therefore, the French court sation on the part of the legal representative of one spouse applies the law designated under the Convention (French (for example, if one of them is a minor); in the case of or other). In the case that the parties make no positive non-respect of the minimum age to marry; in the case of choice of marriage regime upon marriage contract and do not elect a marriage regime at a later date, there is a default bigamy; or in the case of incest. rule which applies the law of first place of marriage (article 4), which can be superseded either by later positive elec- 1.8 Can divorce proceedings be stayed if there are tion of regime, or through a substantial period of time of proceedings in another country? residence (10 years) or shared residence in a new country (article 7); and The process of staying the French divorce procedure depends on ■ if the spouses married after January 29, 2019 or signed/or modi- the foreign jurisdiction in which proceedings were first started: fied a post-nuptial agreement after this date: Council ■ If the applicant first started proceedings in a European Regulation 2016/1103 implementing enhanced cooper- Union country: The French judge informed of this other ation in the area of jurisdiction, applicable law and the petition is obliged to stay its proceedings until such time recognition and enforcement of decisions in matters of as the jurisdiction of the first jurisdiction where proceed- matrimonial property regimes, shall apply. The applicable ings were first started is established, and once established, law shall be the same for both immoveable and move- is obliged to decline jurisdiction in favour of that court able property: article 22 authorised spouses to designate (article 19, Brussels II bis Regulation). or change the law applicable on this matter and article 26 ■ If the applicant first started proceedings in a non-Euro- determines the applicable law in the absence of choice by pean Union country and no international convention is the parties between the spouses’ first common habitual applied, the defendant is entitled to apply to stay proceed- residence after the marriage or common nationality. ings before the French court until either jurisdiction orders its decision (international lis pendens). The French family 2.3 How does the court decide what financial orders to judge has no obligation to stay proceedings or deny its make? What factors are taken into account? jurisdiction and will scrutinise all the connecting factors of the case with France and the other country and will (a) Regarding interim maintenance: article 208 of the Civil check that the foreign order can be recognised in France Code contains a general rule on maintenance obligations once it has been rendered. stating that they are granted in proportion of the needs of the claimant and the income of the defendant. The idea is 22 Finances on Divorce to achieve a balance between the budgetary needs and the income available to the parties, knowing that two house- 2.1 What financial orders can the court make on divorce? holds have a greater cost than one. The court will take into account both spouses’ income and compulsory expenses A distinction should be made between interim measures and (taxes, mortgage, rent, etc.) and also the standard of living definitive ones. As of January 1, 2021, interim measures are not of the impoverished spouse.

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(b) Regarding compensatory allowance: article 271 of the duration of which should not exceed eight years. This amount Civil Code sets out the factors which the judge must take cannot be increased or decreased, even in the case of a substantial into account: change of the financial situation of the debtor. In this case, the ■ duration of the marriage; debtor shall nevertheless obtain judicial permission to vary the ■ age and state of health of each spouse; mode of payment (beyond the standard eight years). It is due even ■ professional qualifications and occupations; after the debtor’s death by and charged over the deceased’s estate. ■ consequences of the professional choices made by It can happen, although very infrequently, that the judge one spouse during their living together for educating grants a lifetime maintenance. It may be decreased (never the children and the time which must still be devoted increased), suspended or suppressed in the case of an important to this education, or for favouring his or her spouse’s change in the resources or needs of either. career at the expense of his or her own; ■ estimated or foreseeable assets of the spouses, both 2.7 Is the concept of matrimonial property recognised in capital and income, after liquidation of the prop- in your jurisdiction? erty matrimonial regime; and ■ respective situations as to retirement pensions. The matrimonial property regime determines the rules regarding The compensatory allowance generally consists in a lump the powers and ownership of each spouse on assets, acquired sum (the idea is to make a clean break). However, it can before or after the marriage. also take the form of the allocation of an asset in owner- When the marriage breaks down, the treatment of property ship, usufruct or the right to use an asset or its usufruct. acquired before or built up during the marriage depends on the Where the debtor cannot afford the payment of a lump matrimonial property regime of the couple: sum, the judge shall allow him/her to pay the capital in ■ in a separation of the property regime, each spouse remains instalments, which should not exceed eight years. Very the exclusive owner of his property and income, whether exceptionally, it can take the form of a lifetime rent when acquired before or during the marriage; the age or state of health of the creditor does not allow him ■ in the community of property regime (the default regime), or her to attend to his or her own needs. assets acquired during the marriage (“acquêts”) are shared Article 270 of the Civil Code allows judges to deny a 50/50 and assets acquired by one spouse through inher- compensatory allowance to the spouse on the basis of itance or legacy during the marriage or any assets acquired equity (especially in the case of divorces on the ground of before the marriage (“biens propres”) belong exclusively to fault with particularly serious circumstances). this spouse; and (c) Regarding the division of assets, it is ordered on the basis ■ in the universal community regime, all assets acquired of the matrimonial property regime of the spouse. before or during the marriage are common assets, whatever their origin. 2.4 Is the position different between capital and It is worth noting that, unlike in common law countries, the maintenance orders? If so, how? “needs” of the spouses are not considered in this field, notwithstanding the disparity induced by the divorce between them. Yes. The philosophy of these two mechanisms is different. The resulting potential disparity might be offset by a compensa- Interim maintenance aims to maintain the standard of living of tory allowance, but not through the division of assets, in which the impoverished spouse throughout the duration of the divorce equity is not taken into account by the judge. proceedings, whereas the compensatory allowance is a lump sum meant to counterbalance the gap created by the divorce 2.8 Do the courts treat foreign nationals differently on between spouses’ respective ways of life. divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of the jurisdiction? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? They are not treated differently as the foreign citizenship of a spouse is not a relevant factor for applicable law. If the spouses agree on all issues of divorce, they no longer need French law is not automatically applied by the French judge. to attend court (cf. question 1.3 above). All the financial issues The judge shall apply a foreign law, depending on the interna- are included in the agreement lodged at the rank of the minutes tional factors of the case (mainly habitual residence of the parties of a notaire. but also even if subsidiary, common citizenship of the parties). In cases where there are still pending issues to be dealt by The following regulations determine the applicable law: the court (for example, children), they only need to exchange an ■ cause of divorce or legal separation: Regulation (EU) affidavit on their point of agreement, and do not need to attend n°1259/2010 (“Rome III”) (in case the couple did not court. An order will be rendered by the court. agree in advance on the applicable law, the judge applies article 8 which designates firstly the law of the habitual 2.6 How long can spousal maintenance orders last and residence of the couple at the time the court is seized); are such orders commonplace? ■ parental responsibility: 1996 Hague Convention on Parental Responsibility matters (article 15 mainly desig- Monthly maintenance awarded by interim order lasts until the nates forum law, i.e. French law, with some exceptions); divorce is finally granted; the maintenance order may be varied ■ maintenance issues: 2007 Hague Protocol on the Law at any time in the course of the procedure if there is a significant Applicable to Maintenance Obligations mainly designates the law of the habitual residence of the creditor (article 3); change in the income and needs of one spouse. and A compensatory allowance is generally a lump sum, but where ■ division of assets: one of the three systems described (cf. the debtor is unable to afford this, it is commonplace that the judge allows this capital to be paid in monthly instalments, the question 2.2 above).

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2.9 How is the matrimonial home treated on divorce? divorce proceedings) or the damages for the prejudiced spouse. The parties need to introduce an arbitration clause in their contract of marriage, or in an agreement. Interim orders may authorise one spouse to stay in the matrimonial home. Mostly, it is awarded to the spouse with custodial rights in order to maintain the children there. In case the matri- 32 Marital Agreements monial home is a jointly owned property or the property of the other parent, the interim order specifies whether this occupa- 3.1 Are marital agreements (pre and post marriage) tion is gratuitous or not. enforceable? Is the position the same if the agreement is a foreign agreement? In the divorce decree, in cases where the spouse did not settle the treatment of the matrimonial home in advance, the court may grant compensatory allowance by the allocation of the Strictly speaking, there is no equivalent in France to pre- and matrimonial home in ownership or of a right of use, dwelling or post-nuptial agreements where parties can, in advance, organise usufruct, temporary or for life. If it is the personal property of in a contract all the financial consequences of their divorce, one spouse only, the judge shall also give the matrimonial home compensatory allowance and division of their assets. on lease to the custodial parent. These solutions are limited to Under French case law, compensatory maintenance cannot be cases where the debtor owns sufficient assets. decided in advance and a French court would not enforce an agreement on that matter if French law on maintenance issues is applied. 2.10 Is the concept of “trusts” recognised in your The agreement existing in France is the marriage contract jurisdiction? If so, how? which is entered into before the marriage and can be changed during the course of marriage. It is enforced during the Even though France did not ratify the 1985 Hague Trust marriage and also when the marriage breaks down and sets out Convention, the concept is recognised in France and foreign rules regarding the matrimonial property regime and the divi- trusts shall be recognised by French courts providing that its sion of the assets only (cf. question 2.2 above for the applicable provisions: comply with the law of the country of its creation; law to division of assets under the Hague Convention on the are in agreement with French public policy; and do not violate law applicable to Matrimonial Property Regime 1978 and the the reserve portion of an estate. Council Regulation June 24, 2016). Moreover, on the one hand, the French law has acknowledged The position of a French court could be different in the case “la fiducie”, an institution that is similar to the trust and on the of a foreign marriage agreement, which designated a foreign other hand also allows French lawyers to act as trust protectors applicable law to maintenance obligation which authorises for foreign trusts. agreements covering maintenance claim. There is a doctrinal discussion on whether a pre-nuptial or post-nuptial agreement could be recognised by a French judge 2.11 Can financial claims be made following a foreign on the ground of maintenance obligations. divorce in your jurisdiction? If so, what are the grounds?

3.2 What are the procedural requirements for a marital If a French judge has jurisdiction as per Regulation (EC) 4/2009 agreement to be enforceable on divorce? on maintenance issues, he/she could state on financial claims in the following circumstances: ■ a foreign court has jurisdiction on divorce case but not on A marriage contract shall be entered into by a notaire before the maintenance issues; marriage. Parties hire the same notaire and do not need to be ■ a foreign divorce decree is recognised in France except on assisted by counsels. The notaire confers authentic form to the the financial orders because it is contrary to the French contract, which becomes indisputable until an “inscription of international public policy (exequatur partiel ); and forgery”. ■ a foreign financial order needs to be varied due to a change It is now possible to change the contract post-marriage without any time limit, whenever both spouses agree to it. of circumstances. If no division of properties was ordered in the foreign divorce decree, a petition to divide assets shall be lodged in France if the 3.3 Can marital agreements cover a spouse’s defendant is habitually resident in France or one of the spouses financial claims on divorce, e.g. for maintenance or is a French citizen. compensation, or are they limited to the election of the matrimonial property regime?

2.12 What methods of dispute resolution are available As previously mentioned, French marriage contracts only cover to resolve financial settlement on divorce? E.g. court, mediation, arbitration? the matrimonial property regime. If the parties elect a foreign applicable law (under the Hague Protocol on the law applicable to maintenance obligation), Parties are allowed to settle their divorce through mediation or and the foreign law chosen allows them to sign a contract in collaborative law. The solution of this process can be subject to advance on the compensatory allowance, case law is uncer- ratification by the court. tain on the validity of the contract (French judges are reluctant Two arbitration courts on family issues have recently been to accept a contract’s validity, especially if said contract states created. Although articles 2059 and 2060 of the Civil Code that there shall be no compensatory allowance). The Cour de prohibit internal arbitration on extra-patrimonial issues (name, Cassation prohibited, in 2015, a German contract suppressing ground of divorce, parental responsibility, parenthood, principle compensatory allowance considering that it was against French of compensatory allowance), patrimonial issues may be subject public policy. There is a real uncertainty that the solution to arbitration as for division of matrimonial assets, the amount would be the same in a contract with a predetermined amount of the compensatory allowance (only after the introduction of of maintenance.

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42 Cohabitation and the Unmarried Family In the case of a separation, any parent with custodial right is allowed to obtain, in court, child maintenance. Mostly, the claim consists of a monthly allowance or the direct payment by 4.1 Do cohabitants, who do not have children, have the other parent, in whole or in part, of the children’s expenses financial claims if the couple separate? What are the grounds to make a financial claim? (school, sport activities, health insurance, etc.). It may also take the form of: the payment of a sum of money to an accredited agency in charge of maintaining, on behalf No maintenance or compensatory allowance is due in the case of the child, an index-linked annuity; a surrender of assets in of a separation of cohabitants, unlike in the case of a married usufruct; or an allocation of assets yielding income. couple. There is no support and assistance duty for the other in cohabitation. Cohabitants are only untitled to palliative civil mechanisms such as the de in rem verso action. In rare cases, 5.2 How is child maintenance calculated and is it compensation can be paid to the cohabitee who has helped and administered by the court or an agency? participated in the evolution of a common business or asset (he will benefit from the increase in value). Maintenance is calculated on the needs of the children and the Cohabitants are also entitled to seize the family judge to order respective resources of the parents (the “available” income, the division of the properties owned jointly, in case no agree- which is the difference between income and compulsory ment is reached by parties. expenses as income/taxes, rent, loans, mortgage, etc.). In the According to article 373-2-9-1 of the Civil Code, the judge is case of a change in the resources of the parents or the needs of able to grant the use of the family house to one of the parents when he is seized of such request. the children, it can be varied. Child maintenance is ordered by the family judge. In the case of an unmarried couple, judicial action is an option. Unmarried 4.2 What financial orders can a cohabitant obtain? parents are not obliged to proceed through court, even though it is highly recommended. Aside exceptions, a cohabitant can only obtain financial orders relating to children issues and the use of the family house (cf. 5.3 For how long is a parent required to pay child section 5). maintenance or provide financial support for their children? For example, can a child seek maintenance 4.3 Is there a formal partnership status for cohabitants during university? (for example, civil partnerships, PACS)? Article 371-2 of the Civil Code expressly states that the finan- Cohabitants can decide whether to remain under the cohabit- cial support of parents does not end once the child becomes an ants’ regime (which is an informal regime with few duties) or adult (at 18 years old in France). A parent is required to provide conclude a formal partnership: a civil pact of solidarity (PACS) financial support until the day the child is in a stable situation. (article 515-1, CC). As a consequence, partners are legally bound Therefore, parents’ financial support covers university expenses. by a duty of assistance and commit to a common life. European Enhanced Cooperation Regulation dated June 24, 2016 has contributed to the recognition of formal partnership status 5.4 Can capital or property orders be made to or for the among participant states. benefit of a child?

4.4 Are same-sex couples permitted to marry or enter As previously mentioned (cf. question 5.1 above), a capital or other formal relationships in your jurisdiction? property order can be made, where the situation of the debtor allows it, but it is less common. Same-sex couples are allowed to enter: ■ a civil pact of solidarity (PACS); or 5.5 Can a child or adult make a financial claim directly ■ marriage: the right for same-sex couples to marry has been against their parents? recognised in France since May 2013, and is governed by sections 74, 202-1 and 202-2 of the Civil Code. The law There is a difference between a maintenance obligation and offers a favor matrimonii since same-sex couple can contract marriage if two conditions are met: the personal or residence alimony obligation. law of one of them authorises such union (section 202-1) A maintenance obligation aims at feeding and raising a child: and the French public officer is competent (section 74). according to article 203 of the Civil Code, any child who is still The latter is indeed competent to celebrate such union if a studying and is not in a stable situation is entitled to make a minimal link to France is satisfied; for example, if a spouse’s financial claim against their parents even if he is an adult (above parent has a secondary house in France. As a consequence, 18), under the conditions described above in §5.3. an Italian and a Brazilian living in Belgium can marry in An alimony obligation rests on family solidarity: according France if their parents have a secondary house in France. to articles 205 and 206 of the Civil Code, any adult who has finished studies is able to claim alimony against any of his/ 52 Child Maintenance her parents (father/mother/grandparents/great-grandparents/ spouse’s parents) in order to contribute to maintain a minimum 5.1 What financial claims are available to parents on standard of living (essential expenses for his living). The plain- behalf of children within or outside of marriage? tiff needs to demonstrate his needs and that the debtor have sufficient income to support his/her family and contribute to this claim. Each parent, married or unmarried, has a duty to participate in the needs of their children proportionally to his/her resources.

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62 Children – Parental Responsibility and the ability of each parent to assume their duties and to respect the rights of the other; eventually, the results of a court-ordered Custody medical psychological expert assessment or social investigation (conducted by social workers); and any duress or violence, phys- 6.1 Explain what rights of custody both parents have in ical or psychological, carried out by one parents upon the other. your jurisdiction whether (a) married, or (b) unmarried? Alternate/shared custody often requires that the following conditions be met: the age of the child; the proximity of parents’ Parental responsibility (“autorité parentale”) and custody (“fixation residence; the availability of each parent; the ability of the de la résidence”) are two different concepts. Parental responsi- parents to discuss; and so on. bility covers the rights and duties of each parent towards their child regarding essential matters such as residence, education, 6.6 Without court orders, what can parents do health, religion and so on, whilst custody covers the sole ques- unilaterally? For example, can they take a child abroad? tion of the residence of the child (i.e. at which parent’s residence the child shall live). Any issue concerning parental responsibility (relocation of the Separation of parents, married or unmarried, does not, in child, especially in another country, changing of school, major principle, affect the joint parental responsibility. It is only in health decision to be made and so on) shall be decided jointly. rare cases, where the best interests of the child require it, that the In the case of disagreement, one parent should seek a court judge will order a unilateral parental responsibility. order. However, a parent is presumed to act with the other’s If separated parents do not reach an agreement regarding agreement for usual acts. custody, the court awards custody to one or the other parent, and access/visitation rights to the non-custodial parent. Courts also allow alternate/shared residence, depending on the many 6.7 Is there a presumption of an equal division of time factors mentioned in question 6.5 below. between separating or divorcing parents? In certain cases, courts shall order the supervised access of one parent under the supervision of a trusted third party or in a There is no such presumption written in French law. The welfare designated meeting place. of the child remains the paramount criterion. Nevertheless, alternate residence remains the principle, whenever its implementation is materially possible. 6.2 At what age are children considered adults by the court? 6.8 Are unmarried parents treated in the same way They are considered adults at the age of 18 years old. However, as married parents when the court makes orders on when a child reaches the age of “discernement” i.e., he has a suffi- separation or divorce? cient degree of understanding, he can be heard by the judge (this age depends on the judge’s discretionary appreciation). The Yes, they are. child’s voice grows gradually with his age until it is decisive. 6.9 Is a welfare report prepared by an independent 6.3 What is the duration of children orders (up to the professional or is the decision taken by the Judge alone? age of 16 or 18 or otherwise)? If so, does the child meet the Judge?

Child-related decisions (parental responsibility, custody, visita- It depends on the case. The judge can take his/her decision alone. tion rights) last until they are 18 years old. However, for teen- The hearing of a child is not mandatory and, in any case, must agers above 15, it is difficult to impose the respect of custodial be requested by the child himself and authorised by the judge, rights if he/she is reluctant. provided that the child has a sufficient degree of understanding. In cases where the judge has no sufficient element, or there is an allegation that a child presents disorders, the judge shall order 6.4 What orders can the court make in relation to children? Does the court automatically make orders in a social investigation (by social workers or specialised associa- relation to child arrangements in the event of divorce? tion in family issues), or designate an expert (either a psychiatrist or a psychologist) who is an independent professional. The court makes orders regarding parental responsibility, custody, visitation rights and child maintenance. The court shall 6.10 Is there separate representation for children in your also ratify any arrangement of parents as long as it protects the jurisdiction and, if so, who would represent them, e.g. a best interests of the child. lawyer? The court automatically makes orders in relation to child arrangements in the event of a divorce knowing that the prin- Yes. In cases where children are heard by the judge, they are ciple is that separation has no consequences on the parental assisted by a lawyer appointed by the lawyer’s bar, independently responsibility, as mentioned above at question 6.1. from the parents’ counsels. There is no cost for such assistance.

6.5 What factors does the court consider when making 6.11 Do any other adults have a say in relation to the orders in relation to children? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to The court’s decision as to custody is based on the paramount children? criterion of the child’s best interests. The following factors stated in articles 373-2 and 373-2-11 of the Civil Code are taken into consideration: the practice previ- Any person is able to testify in the judicial process, among them ously followed by the parents; the feelings expressed by the child; step-parents or grandparents or siblings.

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There is also a specific claim for step-parents or grandparents The “bureau du droit de l’Union, du droit international privé et de l’en- who are entitled to ask the judge for visitation rights towards traide civile” of the Ministry of Justice has been designated as the the child according to article 371-4 of the Civil Code. The Central Authority. European Court of Justice has recently ordered that the visi- Once checked, the request received by the Central Authority tation right mentioned in Brussels II bis includes grandparents is forwarded to the general prosecutor of the Court of Appeal (ECJ, May 31, 2018, n°C-335/17). The step-parent who has where the abducting parent resides. The parties are encouraged resided with the child and his/her parent, who participated to by the Central Authority to reach an agreement. If mediation his/her education, maintenance and has formed an affectional fails, the prosecutor requests an emergency petition for return bond is also entitled to ask for visitation rights. to be heard before the family judge. It is recommended that Mediation or collaborative law can be used to resolve disputes the parent hires a lawyer, even if not mandatory, especially if relating to children. the abducting parent raises exception for defence. Prosecutors often think that the case is the parent’s business and do not strongly fight these exceptions. 72 Children – International Aspects Alternatively, the “left-behind” parent may choose to bypass the Central Authority and proceed directly to the court, using an 7.1 Can the custodial parent move to another state/ emergency procedure. country without the other parent’s consent? 82 Overview A custodial parent cannot decide to relocate without the consent of the other parent or the leave of the court, unless the court had 8.1 In your view, what are the significant developments previously awarded unilateral parental responsibility (which is in family law in your jurisdiction in the last two years? extremely rare as previously mentioned). First, there has been a profound evolution regarding alternative 7.2 Can the custodial parent move to another part of ways of resolution of family issues such as mediation, participa- the state/country without the other parent’s consent? tory process (based on a contract signed by the parties bounding them to collaborate jointly and in good faith so as to obtain a Please see the answer to question 7.1. mutual agreement – section 2062 to 2067 of the Civil Code) and arbitration, as mentioned above at question 2.12. As of January 1, 2020, a participatory process may also be 7.3 If the court is making a decision on relocation of a resorted to as a substitute to the pre-trial stage of divorce child abroad, what factors are taken into account? proceedings. Instead of being conducted by the pre-trial judge, the parties, assisted by their respective counsel, will negotiate There are no specific rules about relocation abroad in the Civil until reaching the point where the case is trial-ready, and the Code or any other text. The welfare of the child remains the para- Court can make a final decision. mount consideration. Family courts will scrutinise the factors Secondly, the Justice reform of March 23, 2019, which enters mentioned in question 6.5 and other factors such as the previous into force on January 1, 2021, will change the divorce procedure, information of the other parent of the relocation project, reasons with the purpose of expediting the timescale, by unifying the for relocation, the good faith of the relocating parent, the need prior two stages (cf. question 1.4. above). The parties may waive for stability and the age of the child, the continuity/offer of the benefit of interim measures. education, the length of the relocation, the distance to the rela- Lastly, the other notable evolution in family law in France tion country, the ability of the relocating parent to respect the concerns surrogacy. French law still prohibits any surrogacy rights of the other, the separation of siblings, and so on. contract and does not acknowledge the validity of any foreign legal convention (section 16-7 of the Civil Code). Thus, since 1994, courts have been facing the question of the transcrip- 7.4 If the court is making a decision on a child moving tion of the filiation for children born by surrogacy towards the to a different part of the state/country, what factors are intended parents. In July 2017, the Cour de Cassation (French taken into account? Highest Court) admitted transcription of birth certificates that matched the “reality” of article 47 of the Civil Code. The Court Please see the answer to question 7.3. interpreted this reality as “the biological reality” for years, hence the Court refusing transcription towards the intended mother who did not give birth to the child. On October 4, 2019, the 7.5 In practice, how rare is it for the custodial parent to Court had to rule again on this question and validated the tran- be allowed to relocate internationally/interstate? scription towards the intended mother, stating it was a very specific case pending for 19 years. At this juncture, the Court Even though each case is unique, and every factor should be inves- had implied that it shall not be transposed to all analogous situ- tigated, it is difficult to obtain a positive decision of relocation as ations. Yet, on December 18, 2019, the Court extended its deci- family courts often consider that the loss of relationship with the sion, admitting from now on transcription for both intended non-relocating parent is contrary to the welfare of the child. parents, considering that all situations shall be equally treated.

7.6 How does your jurisdiction deal with abduction 8.2 What impact, if any, has the COVID-19 pandemic cases? For example, is your jurisdiction a party to the had on family law in your jurisdiction to date, and is Hague Convention? likely to have over the next 12 months?

France ratified the Hague Child Abduction Convention. French The COVID-19 pandemic has challenged many aspects of case law is in accordance with the guide of good practice of The family law in France. Significantly, it had a direct conse- Hague Convention. quence for ongoing proceedings, which have been suspended

Family Law 2021 Diane Sussman’s Law Office 65

or delayed (see below, question 8.3), but it also had several other Virtual hearings have not been settled in family law litiga- impacts. For instance, it entailed doubt for separated couples tions. In Paris, the Head of the Court of Appeal ruled on March regarding alternating residence and visitation rights on children. 25, 2020 that until June 25, 2020, non-criminal cases where The government clarified that custody measures remain to be the assistance of an attorney is mandatory can be exempted followed whenever health recommendation can be ensured. from oral presentation of arguments by counsels. If all parties The particular situation of some parents (long distance) required consent to it, written pleadings shall be filed at the court and them to make efforts and reach temporary suitable arrange- the judge will render his decision based on the written closing ments, not based on any court substantiation. arguments of each parties. The aim is indeed to whittle down Endangered or troubled kids who were or were to be placed attendance at Court for obvious sanitary reasons. Although under educational measures also suffer from the restraints some clients might be reluctant to waive the oral pleading for imposed on social workers. their divorce, in any event French divorce procedure is written, The pandemic is likely to have other collateral consequences, which means that the judge is only bound by the written claims; such as loss of income or patrimonial impairment loss, which the oral argument is optional and is only intended for attorneys will predictably lead to petitions for variation of maintenance. to make observations. Last, the entry into force of the divorce reform brought by Regarding uncontested divorces, the divorce agreement must the March 23, 2019 Law, initially expected in September 2020, is be signed by the parties and their respective counsels, all of postponed to January 2021. them being required to be physically present. Whenever sanitary measures can be ensured and the parties reach to set up a safe organisation to schedule a signature meeting, signature of 8.3 To what extent and how has the court process and other dispute resolution methods for family law been uncontested divorces has been possible since May 11, 2020. adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, 8.4 What are some of the areas of family law which you paperless processes)? Are any of these changes likely to think should be looked into in your jurisdiction? remain after the COVID-19 crisis has passed?

As previously mentioned, the issue of the international recog- As a result of the COVID-19 pandemic, the French govern- nition of the conventional mutual consent divorce, which is a ment imposed a national lockdown starting on March 16, private divorce, should be looked into as the Regulation Brussels 2020. As of that date, courts have been closed and all processes II ter will enter into effect by August 1, 2022. have been suspended, except for “essential litigations”, which mainly concern cases where urgent actions are to be undertaken (domestic violence, and illegal abduction of a child, etc.).

Family Law 2021 66 France

Diane Sussman has been a member of the Paris Bar since 1996. She is an accredited specialist of family and patrimonial law with the French Bar. Her practice is exclusively dedicated to family and patrimonial issues, from advice to litigation, especially where there is an international element. Diane Sussman is involved in pro bono work. She is a member of the IAFL (International Academy of Family Lawyers). She is fluent in English and holds a Postgraduate Diploma in North American Commercial Law from University Paris 1 – Pantheon Sorbonne.

Diane Sussman’s Law Office Tel: +33 1 4221 4199 10 rue de Seze Email: [email protected] 75009 Paris URL: www.avocat-sussman.fr France

Diane Sussman’s office, based in Paris, was established in 2012. The firm is an independent law boutique focusing on all aspects of family law, domestic and international, both in relation to finance and children. www.avocat-sussman.fr

Family Law 2021 Chapter 10 67

Germany Germany

MEYER-KÖRING Marie von Maydell

12 Divorce not necessary that both parties attend the court hearing at the same time. If one party lives abroad or far away from the court having jurisdiction, the hearing can be held in another court or 1.1 What are the grounds of jurisdiction for divorce the party may be excused. proceedings? For example, residence, nationality, In Germany, there is no private divorce. A marriage can only domicile, etc.? be divorced by family court.

Jurisdiction is primarily based on the grounds of Council Regulation (EC) No. 2201/2003 of 27 November 2003, the 1.4 What is the procedure and timescale for a divorce? so-called “Brussels II bis Regulation”. According to article 3 of this Regulation, Germany, as a Member State, has jurisdiction Divorce has to be filed by a lawyer to the family court. In case for divorce proceedings if: of an uncontested divorce, the other party is not required to hire ■ the spouses are habitually resident in Germany; a lawyer. ■ the spouses were last habitually resident in Germany, if one There is no foreseeable timeframe for a contested divorce. If of them still resides there; the parties reach a comprehensive divorce settlement before- ■ the respondent is habitually resident in Germany; hand, including the equalisation of pension rights, an uncon- ■ in the event of a joint application, either of the spouses is tested divorce can be finalised within weeks. Otherwise it will habitually resident in Germany; take at least three to six months. ■ the applicant is habitually resident in Germany and resided there for at least one year immediately before the applica- 1.5 Can a divorce be finalised without resolving other tion was made; associated matters? For example, children and finances. ■ the applicant is habitually resident in Germany for at least six months immediately before the application was made and is a German national; or Ex officio, the family court adjusts the pension rights of both ■ both spouses are of German nationality. parties on divorce, which basically means that court transfers If no court of a Member State has jurisdiction according to half of the gained pension rights during marriage to the other the Brussels II bis Regulation, German law determines jurisdic- party. However, the parties are entitled to conclude the pension tion. Conforming to section 98 of the Family Procedure Act rights in a divorce settlement. (FamFG), a German court has jurisdiction if one of the spouses Other associated matters such as maintenance, matrimonial is of German nationality. property and child-related matters are only resolved within the divorce procedures, if one of the parties files a corresponding motion. 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an uncontested divorce? 1.6 Are foreign divorces recognised in your jurisdiction? If so, what are the procedural requirements, if any? Apart from hardship cases (e.g. severe domestic violence), divorce is granted if the marriage has failed. The breakdown of marriage is presumed unchallengeable if According to article 21 of the Brussels II bis Regulation, the parties are separated for more than a year and the divorce divorces of another Member State are recognised without any is uncontested. In case of a separation longer than three years, special procedure. consent between the parties is not required. Other foreign divorces need to be recognised by the state administration conformable to section 107 of the FamFG.

1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a 1.7 Does your jurisdiction allow separation or nullity “private” divorce, i.e. without any court involvement? proceedings?

Parties need to attend a court hearing and have to make a state- There are no separation proceedings in Germany. Nullity ment regarding the grounds for the divorce. However, it is proceedings are possible on the grounds of section 1313 of the German Civil Code (BGB), but the chances are very low.

Family Law 2021 68 Germany

1.8 Can divorce proceedings be stayed if there are individual case (e.g. duration of the marriage, child education). proceedings in another country? Usually spousal maintenance orders are temporary. In extreme cases, spousal maintenance is ordered for lifetime. Yes, according to article 19 of the Brussels II bis Regulation a German family court shall stay the proceedings if divorce proceed- 2.7 Is the concept of matrimonial property recognised ings were brought before the court of a Member State first. in your jurisdiction?

22 Finances on Divorce Matrimonial property does not exist under German law if the spouses have the statutory property regime of the community of 2.1 What financial orders can the court make on accrued gains (“Zugewinngemeinschaft”). Each spouse also remains divorce? owner of his/her property if bought during the marriage. Co-ownership emerges only if the spouses acquire property Besides the pension right adjustment ex officio, the family court jointly. This joint property will not be dissolved by divorce. If can give a ruling in the following matters: they, e.g. buy a house together during their marriage, they will ■ Spousal maintenance. stay co-owners also after their divorce unless they sell the house ■ Child maintenance. or one spouse takes over or buys the other half from the other. ■ Equalisation of accrued gains during the marriage The spouses will only have joint/matrimonial property if (“Zugewinnausgleich”). they choose community of property “Gütergemeinschaft” as their ■ Separation of household items and the matrimonial home. matrimonial regime, which is not very common.

2.2 Do matrimonial regimes exist and do they need to 2.8 Do the courts treat foreign nationals differently on be addressed by the court on divorce? Is there a default divorce? If so, what are the rules on applicable law? Can matrimonial regime? the court make orders applying foreign law rather than the law of the jurisdiction?

German law recognises four different matrimonial regimes. By default, spouses obtain the community of accrued gains In case of foreign relations, the court having jurisdiction applies (“Zugewinngemeinschaft”). In a (pre-)marital agreement, the spouses the law the spouses agreed upon on the grounds of article 5 of can choose a separate property (“Gütertrennung”), a community of Council Regulation (EU) No. 1259/2010 of 20 December 2010 property (“Gütergemeinschaft”) or a special community of accrued (Rome III). In the absence of a choice, the law applicable is gains between Germany and France (“Wahl-Zugewinngemeinschaft”). determined on the grounds of article 8 of the Regulation. In Family court will not address the matrimonial regime upon general, German law is applicable if the spouses are or were last divorce unless one of the spouses files a motion. In this case, habitually resident in Germany or are both German nationals. court needs to decide within the divorce proceedings. Failing that, German law is applicable if a German family court has jurisdiction for the divorce. Foreign nationals are not treated differently for divorce. 2.3 How does the court decide what financial orders to German family courts used to apply foreign law quite regularly make? What factors are taken into account? before the Rome III Regulation became effective. Also, now, courts apply foreign law if chosen by the parties or applicable The family court only gives a ruling if one party files a specific for other reasons. motion, e.g. claims concerning the matrimonial regime, maintenance or other financial claims. 2.9 How is the matrimonial home treated on divorce?

2.4 Is the position different between capital and If the parties do not agree, the family court can assign the matri- maintenance orders? If so, how? monial home to one party, if one of the spouses files a motion. The decisive factor taken into account by the court is the best Court orders on capital are based on the matrimonial regime interest of the children, if existing and the ownership. However, and follow a different procedure than maintenance payments. the court ruling does not affect the ownership. Capital orders only concern the development during the time of the marriage. Maintenance payments, however, also include the behaviour of the parties during the marriage and a prospect 2.10 Is the concept of “trusts” recognised in your for the future. jurisdiction? If so, how?

In general, yes, but not between spouses. 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? 2.11 Can financial claims be made following a foreign If the agreement meets the required form (in most cases notari- divorce in your jurisdiction? If so, what are the grounds? sation), the parties do not need a court order or to attend court. Yes, if the jurisdiction lies with a German family court. If, e.g. the marriage was dissolved in another country but one of 2.6 How long can spousal maintenance orders last and are such orders commonplace? the spouses and the children have their habitual residence in Germany, they can claim for spousal maintenance and child maintenance in Germany. Furthermore, the equalisation of the Spousal maintenance orders are commonplace, in case of an accrued gains may be claimed in Germany, if the family court income disparity of the spouses. The duration depends on the

Family Law 2021 MEYER-KÖRING 69

has jurisdiction. Often, the equalisation of German pension 42 Cohabitation and the Unmarried Family rights must be claimed in front of a German court separately if the divorce was proclaimed in a foreign country. 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the 2.12 What methods of dispute resolution are available grounds to make a financial claim? to resolve financial settlement on divorce? E.g. court, mediation, arbitration? The applicable law concerning spouses does not extend to cohabitants. Only on the general grounds of German civil law Spouses can seek mediation from a specially trained lawyer can claims be made against each other. There are no specific or even a judge during court proceedings. The competent rules for cohabitants. court also tries to reach a settlement prior to giving a ruling. Arbitration is not recognised in case of divorce. 4.2 What financial orders can a cohabitant obtain? 32 Marital Agreements Cohabitants may agree on a special relationship agreement 3.1 Are marital agreements (pre- and post-marriage) (so-called “Partnerschaftsvertrag”). Otherwise, financial orders are enforceable? Is the position the same if the agreement is subject to the German civil law. a foreign agreement? 4.3 Is there a formal partnership status for cohabitants Pre- and post-nuptial agreements are legally binding in Germany, (for example, civil partnerships, PACS)? if they comply with the formalities and are not unjust or immoral. An agreement is enforceable if these requirements are fulfilled. No. Registered partnerships were only possible for same-sex Foreign pre- or post-nuptial agreements are generally upheld. couples until the introduction of same-sex marriage in 2017. Depending on the subject of the agreement and where it was concluded, the agreement will not only be examined in its morality and unfairness but will also be reviewed on its consist- 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? ency with the public policy clause (ordre public). If it does not comply, the rules of the German Family Law will be applied without regard to the foreign agreement. Since 1 October 2017, same-sex marriage has been legal under German law. Before that time, same-sex couples were only able to register their partnership (“Eingetragene Lebenspartnerschaft”). 3.2 What are the procedural requirements for a marital After 30 September 2017, same-sex couples cannot enter agreement to be enforceable on divorce? into a registered partnership (“Eingetragene Lebenspartnerschaft”). Registered partnerships originating from before 30 September In order to give effect to the agreement, a notary must record 2017 can be transferred into a marriage, but do not need to be. pre-nuptial agreements with both parties being present according to section 1410 of the BGB. Post-nuptial agreements 52 Child Maintenance must either be notarised or recorded by court in order to give effect to the agreement if it is concluded while divorce proceedings are pending. If the agreement is concluded after the divorce 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? is legally binding, e.g. concerning post-marital maintenance, a notarisation or recording by court is no longer necessary. The choice of a matrimonial property regime always needs to In cases of joint custody (married or unmarried parents), both be notarised. parents have to enforce financial claims on behalf of the child. Since 29 January 2019, the Matrimonial Property Regulation In case of a separation of the parents, the primary caregiving (No. 2016/1103), as well as the Registered Partnership Property parent can make claims (e.g. child maintenance or child benefit Regulation (No. 2016/1103), require that an agreement shall (“Kindergeld”)) against the other parent according to section 1629 be expressed in writing, dated and signed by both spouses. of the BGB. If one of the parents has sole custody, this parent Additionally, the formal requirements of the Member State must make financial claims on behalf of the child. in which the spouses have their habitual residence shall apply (article 23). 5.2 How is child maintenance calculated and is it administered by the court or an agency? 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance Generally, both parents are subject to paying child maintenance, or compensation, or are they limited to the election especially if the child is of age. If the child is underage, the of the matrimonial property regime? Can they deal primary caregiver fulfils his maintenance obligation by taking with financial claims regarding children, e.g. child care of the child. The other parent has to pay child maintenance. maintenance)? Child maintenance can be ordered by court or be adminis- trated by the child welfare office (“Jugendamt”). The latter can Yes, marital agreements can cover financial claims on divorce calculate the amount but can only certificate the claim by mutual additional to the choice of the matrimonial property regime. It agreement of the parents. is also possible to cover financial claims regarding children. The amount of child maintenance is calculated on the basis of the parent’s income after taking certain liabilities into account.

Family Law 2021 70 Germany

Under consideration of the child benefit (“Kindergeld”) the 6.4 What orders can the court make in relation to amount is based on the guidelines of the courts of appeal. The children? Does the court automatically make orders in “Düsseldorfer Tabelle” is widely used in Germany. Higher or relation to child arrangements in the event of divorce? special demand of the child can be awarded additionally by the court having jurisdiction. The family court can make diverse orders in relation to children. The most common orders concern visitation rights and custody. 5.3 For how long is a parent required to pay child Court orders on children are only included in the divorce, if one maintenance or provide financial support for their party files a special motion. In general, court makes an order children? For example, can a child seek maintenance apart from the divorce. during university?

6.5 What factors does the court consider when making Child maintenance has to be paid until the end of professional orders in relation to children? education, for instance until the end of university or education in general. This principle is restricted if the child is able to meet First of all, and of capital importance, the family court takes the its demands on an own income. At the same time, the child is wellbeing and the best interests of the children into account. not required to take a job during its education.

6.6 Without court orders, what can parents do 5.4 Can capital or property orders be made to or for the unilaterally? For example, can they take a child abroad? benefit of a child?

In case of joint custody, both parents need to agree on major life In general, child maintenance has to be paid monthly. The decisions of the child, such as religious education, schooling, family court cannot make a capital order. habitual residence and medical treatments. Decisions regarding the everyday life can be made by the primary caretaking parent. 5.5 Can a child or adult make a financial claim directly In cases of equally shared residence, both parents can make deci- against their parents? If so, what factors will the court sions regarding everyday life. Parents can generally take a child take into account? abroad if there is no warning for the specific country. Only if the other parent can prove that there is a serious risk of child The primary caregiver represents a child on financial claims. abduction, the court will forbid a trip abroad. Once the child has reached the age of 18, he/she must make a claim directly against both parents in his/her own name. The 6.7 Is there a presumption of an equal division of time family court may take into account existing credits, financial between separating or divorcing parents? burden, the number of children or if the child has forfeited her/ his claim. However, any factor has to be named by the sued parent. The family court will not examine the factors ex officio. No. A specific agreement or court order is needed. Recently, there was a political discussion whether such a presumption 62 Children – Parental Responsibility and should be applied, but it was declined. Custody 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on 6.1 Explain what rights of custody both parents have in separation or divorce? your jurisdiction, whether (a) married, or (b) unmarried?

Yes. Concerning visitation rights always and concerning (a) Married parents automatically have joint custody. custody, a preceding court order granting joint custody might (b) Unmarried parents need to agree on joint custody in front be necessary. of the youth welfare office (“Jugendamt”) or joint custody can be ordered by family court. Otherwise, the mother has sole custody. 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 6.2 At what age are children considered adults by the court? A welfare report is prepared by the youth welfare office (so-called “Jugendamt”). Additionally, court appoints a guardian ad litem, Children are considered adults at the age of 18. who investigates what solutions are in the best interest of the child. Furthermore, experts on special topics can be consulted. 6.3 What is the duration of children orders (up to the Finally, the Judge has to hear the child before deciding. An age of 16 or 18 or otherwise)? exception can only be made if the child is too young.

If the court order does not contain a different duration, court 6.10 Is there separate representation for children in your orders are valid until the child is of age. jurisdiction and, if so, who would represent them, e.g. a lawyer?

The family court usually assigns a guardian ad litem (“Verfahrensbeistand”). Only in exceptional cases or because of severe time pressure, a guardian ad litem is not assigned.

Family Law 2021 MEYER-KÖRING 71

6.11 Do any other adults have a say in relation to the 7.6 How does your jurisdiction deal with abduction arrangements for the children? E.g. step-parents or cases? For example, is your jurisdiction a party to the grandparents or siblings. What methods of dispute Hague Convention? resolution are available to resolve disputes relating to children? Germany has been a party of the Hague Convention on the civil aspects of international child abduction of 25 October 1980 Other adults (e.g. grandparents) do not have a say in front of the since 1 December 1990. Return orders under article 8 of this family court. However, they can testify as a witness and they convention are easier to obtain than a return order if the child have an own visitation right they can claim, if they have or had was abducted within the borders of Germany. a good relationship with the child prior to the separation of the parents. 82 Overview The family court encourages the parents to reach a mutual agreement. Furthermore, parents can seek mediation or consul- 8.1 In your view, what are the significant developments tation from the youth welfare office (“Jugendamt”). in family law in your jurisdiction in the last two years?

72 Children – International Aspects The amendment to legalise same-sex marriages was definitively the most important development regarding changes in the law. 7.1 Can the custodial parent move to another state/ However, its impact on the practice of law is not very significant. country without the other parent’s consent? During the last couple of years, practice has shifted towards cases concerning children instead of cases concerning financial matters If a parent has sole custody (“Sorgerecht”) for the child, this between spouses. Since the decision of the Federal Supreme Court parent also has the right to determine the habitual residence (BGH) on 1 February 2017 on shared residence (“Wechselmodell”), (“Aufenthaltsbestimmungsrecht”) of the child. This means this this question is becoming more and more relevant. parent can move anywhere in the world and relocate the child without the other parent’s consent. If the parents have joint 8.2 What impact, if any, has the COVID-19 pandemic custody, the consent of both parents is necessary. If the parents had on family law in your jurisdiction to date, and is cannot agree, a court order is necessary. likely to have over the next 12 months?

7.2 Can the custodial parent move to another part of Due to the COVID-19 pandemic and the often accompanying the state/country without the other parent’s consent? decrease in income, change procedures regarding child and/or spousal maintenance needed to be filed or will have to be filed within the next few months. Furthermore, the questions of German jurisdiction does not differentiate between moving custody and visiting rights needed to be re-evaluated. Because abroad or moving to a different part of the country. of a temporary “shutdown” of most of the family courts, existing proceedings are delayed and new proceedings are expected to 7.3 If the court is making a decision on relocation of a take longer. child abroad, what factors are taken into account? 8.3 To what extent and how has the court process and Under German law, family court does not decide on relocation other dispute resolution methods for family law been of the child. If one of the parents wants to relocate (no matter adapted in your jurisdiction in light of the COVID-19 if abroad or within the country) the court will have to decide pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to whether it is in the best interests of the child to move with this remain after the COVID-19 crisis has passed? parent or stay with the other parent. As mentioned in question 7.1, court will transfer the right to determine the habitual residence (“Aufenthaltsbestimmungsrecht”) of the child. Factors Family courts did not adapt significantly to the current situa- taken into account are continuity (personal and geograph- tion. New regulations concerning the distance between people ical), parenting skills, tolerance regarding a good relationship in court rooms and rules of hygiene were put into place. If possible, written procedures were arranged. Due to the lack of between the child and the other parent, the ability to promote infrastructure at many courts throughout Germany, data protec- the child’s personal skills and the child’s will. tion video conferences or remote hearings were not performed. However, virtual hearings are admissible under German law. 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into account? 8.4 What are some of the areas of family law which you think should be looked into in your jurisdiction?

Please see the answer to question 7.3. German legislation needs to find a way to adjust the rights of cohabitants to family law. Fewer people get married, but the law 7.5 In practice, how rare is it for the custodial parent to has not yet been adapted to this situation. be allowed to relocate internationally/interstate? Furthermore, the process of divorce could be sped up. In particular, in most cases it is not just for the spouses to wait one In Germany it is fairly common to allow a parent to relocate year to be able to file for divorce. Special reasons for an imme- with the child. There is no possibility to forbid a parent to relo- diate divorce should also be recognised. cate, even if this would be in the best interest of the child. A Finally, the consequences of shared residence (“Wechselmodell”) decision can only be made concerning the child. as regards maintenance, tax issues, registered address and child benefit need to be adjusted.

Family Law 2021 72 Germany

Marie von Maydell practises in all areas of German and international family and matrimonial law, including divorce, spousal and child support, financial and property issues, pre-nuptial, post-nuptial and separation agreements, and Hague Convention matters. She is experienced in negotiating settlements and, when necessary, litigating cases through trial and appeals. Marie von Maydell was born in Frankfurt/Main, Germany and studied at Albert-Ludwigs-Universität, Freiburg, Germany, Université de Lausanne, Switzerland and Humboldt-Universität Berlin, Germany. During her education, she worked in Los Angeles, Ca (USA), Tallinn (Estonia), Brussels (Belgium) and Paris (France). She was admitted to the Bar in 2001. She is an expert in Family Law (“Fachanwältin für Familienrecht”). She is a member of the German Bar Association, Committee on Family Law of the German Bar Association, Committee on Inheritance Law of the German Bar Association, Bonn Bar Association (vice chair), Committee on Family Law of the Bonn Bar Association (head), German Family Court Committee and IAFL (International Academy of Family Lawyers).

MEYER-KÖRING Tel: +49 228 72636 86 Oxfordstrasse 21 Email: [email protected] 53111 Bonn URL: www.meyer-koering.de Germany

MEYER-KÖRING is one of the oldest law firms in Bonn, practising law since 1906. Around 40 lawyers cover a wide range of economic and civil law at two locations in Germany (Bonn and Berlin). For many years, MEYER- KÖRING has been awarded as a top law firm in Germany. The department of Family Law is among the largest Family Law firms in the region of Bonn, with currently two specialised Senior Partners and three Associates. MEYER-KÖRING covers all aspects of family and divorce law, providing legal counsel and representation in court on a national and international level. www.meyer-koering.de

Family Law 2021 Chapter 11 73

Hong Kong Hong Kong

Sharon Ser

Withers Philippa Hewitt

12 Divorce In addition, it is possible to have a substantial connection with more than one jurisdiction. This can mean that, even if the court agrees that a party has a substantial connection with Hong 1.1 What are the grounds of jurisdiction for divorce Kong, it may not be the most appropriate forum if there is proceedings? For example, residence, nationality, another choice. Then the parties become embroiled in a forum domicile, etc.? dispute. In Z,SN (aka K,SN) v K,VSF (Domicile and substantial connec- Every party to a divorce in Hong Kong must satisfy the basic tion) [2019] HKFLR; [2019] HKCA 840, the Court of Appeal jurisdictional requirements under Section 3 of the Matrimonial held that there was no substantial connection on all the facts, Causes Ordinance Cap 179 (MCO), which states that the court including the “matrimonial connecting factors”. shall have jurisdiction in proceedings for divorce if: Issues as to substantial connection and forum non conveniens (a) either of the parties to the marriage are domiciled in Hong regularly come before the court in Hong Kong and the princi- Kong at the date of the petition or application; ples were further confirmed in the Court of Final Appeal case (b) either of the parties to the marriage are habitually resident of SPH v SA (Forum and marital agreements) [2014] HKFLR 286. in Hong Kong throughout the period of three years immediately preceding the date of the petition or application; or (c) either of the parties to the marriage had a substantial 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties connection with Hong Kong at the date of the petition or have an uncontested divorce? application. In Hong Kong, it is irrelevant where the parties married or their nationality. So long as they can satisfy one of the above, Under MCO s11, the only ground for divorce in Hong Kong is they are entitled to petition for a divorce or apply for a joint irretrievable breakdown of the marriage. Pursuant to s11A, the application. divorce can only be proven by at least one of the following five Domicile and habitual residence are well-recognised concepts factors: but unique to Hong Kong is the ability for a party to claim a (a) the respondent’s adultery; substantial connection to Hong Kong by demonstrating to the (b) the unreasonable behaviour of the respondent; court that either party had a sufficient degree of settlement there. (c) the parties have lived apart for a continuous period of one A list of factors was helpfully given by the Court of Appeal in year and the respondent consents to the divorce on this the case of RI v SSH [2011] HKFLR 318, which included the basis; past pattern of the parties’ lives and whether they regard Hong (d) the parties have lived apart for a continuous period of two Kong as home for the time being, even if their lifestyle may indi- years, regardless of whether the respondent consents or cate that they may not take root in one place for too long. The not; or court would look at the place of work of the parties, the location (e) the respondent’s desertion. of their assets, if they had a home here, and whether the chil- There is also an option to jointly apply for divorce in Hong dren of the family were schooled in Hong Kong. A simple busi- Kong. The sole ground is irretrievable breakdown of the ness interest is not sufficient (Z v Z [2012] HKFLR 346), nor is marriage and the sole fact is one year’s separation by consent. an ID card or the place of marriage; however, in B v A [2007] Both parties must sign the petition, and all relevant documents. HKFLR 138 the wife was deemed to have a substantial connec- Under MCO s12, a party to a marriage is unable to petition for tion with Hong Kong although she had only been there for six divorce until they have been married for one year. months because she had arrived fully intending to make it her The parties can have an uncontested divorce if the respondent home for the foreseeable future and the children’s schools were files an Acknowledgment of Service (Form 4) with the court applied for and a deposit paid on an apartment. indicating that he/she has no intention to defend the divorce. More recently, the Court of Appeal in ZC v CN [2014] HKFLR Also, if the respondent does not file his/her acknowledgment of 469 set out a comprehensive and in-depth review of the meaning service within eight days of service (including the day of service) of substantial connection and the authorities. Here, substantial the petition can proceed undefended, so long as proper service connection was not found. The courts have made it clear that can be proved. it is not their intention to create a convenient offshore divorce There are a number of alternatives in respect of service should jurisdiction, although substantial connection does allow some it prove difficult to serve, including deemed service, substituted flexibility in Hong Kong’s uniquely cosmopolitan population. service or application for an order dispensing with service.

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1.3 In the case of an uncontested divorce, do the A decree absolute will not be made if there are applications or parties need to attend court and is it possible to have a appeals pending, or if issues relating to an application under s17A “private” divorce, i.e. without any court involvement? MCO have not been resolved. S17A MCO relates to the duty of the court to consider the financial position of the respondent If the parties agree that they will not contest the divorce, then following a divorce based on either one or two years’ separation. neither party need attend court. The matter is placed in the If there is an emergency, the petitioner can apply to expe- Special Procedure list and fast-tracked. dite the decree absolute. The usual reason for such a request is The decree nisi is pronounced in open court and a note of the an imminent birth or the remarriage of the petitioner. If it is order made is provided to the petitioner who then draws up both the respondent who would like to expedite, he/she must ask the decree nisi and the order made. the petitioner to make this application. If the request is before It is not possible to have a “private” divorce in Hong Kong. A the decree nisi, the court will consider the application then. If it is requested after , there must be an application by petition or joint application must be filed and a decree obtained decree nisi summons (see LPK v SH and HSH (expedition of decree absolute) from the court. [2012] HKFLR 257). See Court of Appeal case JAH v VH [2013] HKEC 2017, 1.4 What is the procedure and timescale for a divorce? [2013] HKFLR 664 for a summary of the law on decree absolute. If the petitioner fails to make the application for decree absolute, Once the respondent has filed his/her Form 4 and indicates the respondent may apply three months after the date of the expi- that he/she does not intend to defend the divorce (or is out of ration of the time limit, namely six weeks plus three months. The time), the petitioner can file an application for directions for application must be made inter partes and supported by an affidavit. trial supported by an affidavit in support of petition (Form 21) to get a date for decree nisi. 1.6 Are foreign divorces recognised in your The decree nisi will be pronounced in open court, and if there jurisdiction? If so, what are the procedural requirements, are outstanding matters yet to be agreed, such as a dispute over if any? finances or children, these will be adjourned to a later date (see Practice Direction 15.4 Special Procedure). The decree Foreign divorces (and legal separations) are recognised in Hong will record the place and date of the marriage, the names of Kong under Part IX MCO if they have been obtained by means the parties, the ground of irretrievable breakdown and the fact of judicial or other proceedings and are effective under the law on which it was based. The draft order will set out the order of that place. The spouse must have been habitually resident for costs and whether the matter has been adjourned. If the (and/or domiciled) and/or was a national of that place. parties have settled, the order will reflect their settlement and Exceptions are contained in s61 and include instances where the matter can proceed in due course to decree absolute. the divorce was obtained without one of the spouses being given The decree absolute can be applied for within six weeks of the sufficient notice or an opportunity to take part in the proceed- decree nisi by the petitioner. ings or where it would be manifestly contrary to public policy. If the respondent indicates in his/her Form 4 that he/she The leading case, which changed the law in respect of enabling wishes to dispute the petition, he/she has 29 days from the a party to make an application for ancillary relief despite a receipt of the notice of proceedings (in Form 3), inclusive of the foreign decree is the Court of Final Appeal case of ML v YJ date of receipt, to file an answer. If outside the jurisdiction, the [2011] 1 HKC 447. time for filing the acknowledgment of service is extended to 21 There are no specific procedural requirements to recognise a days and the time for filing the answer to 42 days, inclusive of foreign decree but the fact of the legal separation of decree must the day of receipt. be proved. See section 58 MCO. The respondent can file a cross-petition if he/she wishes to allege that the marriage has broken down due to other facts. 1.7 Does your jurisdiction allow separation or nullity The petitioner has 14 days in which to reply to the answer and proceedings? cross petition. No further pleadings may be filed without leave of the court. Disputed divorces are rare in Hong Kong. Where they do Yes, Hong Kong has provision for both judicial separation and occur, they inevitably increase the timescale for the divorce nullity applications. significantly. Should the matter go to trial, directions will be With an application for judicial separation, the party must given and a date set. The usual procedure for trial will then plead one or more of the five facts but must not plead that be followed with cross-examination, etc. Costs orders may be the marriage has broken down irretrievably. The jurisdic- made against parties who unreasonably defend a petition or tional requirements are the same as for divorce. There is no where the matter could have proceeded on a non-fault basis. two-stage process of decrees nisi and absolute and the judicial separation degree is the final decree. The same orders can be made in respect of children and the finances. See s24 MCO Part V. 1.5 Can a divorce be finalised without resolving other With nullity, there is a choice between pleading that the associated matters? For example, children and finances. marriage is either void from the start due to the status of the parties or voidable because of circumstances surrounding the Although the decree absolute can be applied for within six weeks marriage which would cause it to have no legal effect. See s19 of the decree nisi, this is generally not done until all matters are MCO Part IV. The parties are not required to have been married resolved. for a year with nullity proceedings and the jurisdictional require- In respect of children, a decree absolute will not be granted ments are broader; as well as the three requirements outlined without an s18 declaration (s18 Matrimonial Proceedings and above for divorce, a party can apply for nullity if the marriage Property Ordinance Cap 192 (MPPO)) that “arrangements for was celebrated in Hong Kong or if the respondent at the time the welfare of every child have been made and are satisfactory or of the petition was resident in Hong Kong, or both parties were are the best which can be devised in the circumstances”. resident in Hong Kong at the date of the petition.

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1.8 Can divorce proceedings be stayed if there are The court has the power to sell property which has been the proceedings in another country? subject of an order under s4, 5 or 6 (s6A). Orders for Maintenance Pending Suit can be made prior to Yes, and they regularly are if the other country is deemed to be the decree nisi (s3 MPPO). the more appropriate jurisdiction. Hong Kong follows England Orders for variation can be made under s11 MPPO. and Wales and the principles in cases such as Spiliada Maritime Corp v Consulex Ltd [1987] AC 460 (see Court of Appeal cases 2.2 Do matrimonial regimes exist and do they need to DGC v SLC (nee C) [2005] 3 HKC 293 and LN v SCCM (Forum be addressed by the court on divorce? Is there a default non conveniens) [2013] HKFLR 358). matrimonial regime? The leading case on forum non conveniens is the Court of Final Appeal case of SPH v SA [2014] HKFLR 286. Here, the Court No, Hong Kong is a common law jurisdiction very similar to of Final Appeal found overwhelmingly that the wife had jurisdic- England and Wales. tion as of right and therefore there was no need to advance further in the Spiliada test. Having found that the wife could pursue her petition, the burden shifted to the husband in his stay application 2.3 How does the court decide what financial orders to to show that Germany was distinctly more appropriate, which he make? What factors are taken into account? failed to do. It was material in this case that the wife had lived and worked in Hong Kong for many years, and the marriage, although The court is obliged to consider the factors set out in s7(1) relatively short, was conducted in Hong Kong. MPPO as follows: Since the Court of Final Appeal case of ML v YJ mentioned It shall be the duty of the court in deciding whether to exercise above at question 1.6, the Hong Kong government passed an its powers under s4, 6 or 6A in relation to a party to the marriage amendment to the MPPO “to empower the courts in Hong Kong and, if so, in what manner, to have regard to the conduct of to order financial relief for a former spouse whose marriage has the parties and all the circumstances of the case including the been dissolved or annulled, or who has been legally separated … following matters, that is to say: in a place outside Hong Kong”. This provision came into force (a) the income, earning capacity, property and other financial in March 2011 as Part IIA of the MPPO. resources which each of the parties to the marriage have or are likely to have in the foreseeable future; 22 Finances on Divorce (b) the financial needs, obligations and responsibilities which each of the parties to the marriage have or are likely to 2.1 What financial orders can the court make on have in the foreseeable future; divorce? (c) the standard of living enjoyed by the family before the breakdown of the marriage; Financial orders the court can make are found in the MPPO s4, (d) the age of each party to the marriage and the duration of 5, 6 and 6A. the marriage; On granting a decree of divorce, the court may make orders (e) any physical or mental disability of either of the parties to for periodical payments, secured periodical payments and lump the marriage; sums (s4). (f) the contributions made by each of the parties to the welfare Under s5(2) MPPO, the court can order similar financial of the family, including any contribution made by looking provision for the child of the family, although the court is able to after the home or caring for the family; and make such an order before decree nisi on behalf of children (s5(1)). (g) in the case of proceedings for divorce or nullity of The court can make the following property adjustment orders marriage, the value to either of the parties to the marriage under s6: of any benefit (for example, a pension) which, by reason of (a) an order that a party to the marriage shall transfer to the the dissolution or annulment of the marriage, that party other party, to any child of the family or to such person will lose the chance of acquiring. as may be specified in the order for the benefit of such a The court must bear these factors in mind at all times and child such property as may be so specified, being prop- case law has developed interpreting these laws. The leading erty to which the first-mentioned party is entitled, either case in Hong Kong for the determination of marital financial in possession or reversion; claims is the Court of Final Appeal case of LKW v DD [2010] 13 (b) an order that a settlement of such property as may be so HKCFAR 582; [2011] HKFLR 106. specified, being property to which a party to the marriage This case laid down four guidelines and five steps to assist the is so entitled, be made to the satisfaction of the court for judiciary, practitioners and lay people alike. the benefit of the other party to the marriage and of the The four guidelines are as follows: children of the family or either or any of them; (i) the objective is to achieve a fair outcome; (c) an order varying for the benefit of the parties to the (ii) a rejection of discrimination; marriage and of the children of the family or either or (iii) there should be a yardstick of equality against which judges any of them any ante-nuptial or post-nuptial settlement can check their tentative views which should be departed (including such a settlement made by will or codicil) made from only with “good, articulated reasons”; and on the parties to the marriage; (iv) a rejection of minute retrospective investigations. (d) an order extinguishing or reducing the interests of either of The Court of Final Appeal set out the following five steps: the parties to the marriage under any such settlement; and (1) Identify the assets. (e) an order for the sale of such property as may be specified (2) Assess the parties’ financial needs. If there are insufficient in the order, being property in which or in the proceeds of assets, an assessment will be made at this point. sale of which, either or both of the parties to the marriage (3) If there are assets surplus to needs, the court must consider have a beneficial interest, either in possession or reversion, the “sharing principle”. and for the use of the proceeds of such sale.

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(4) Considering whether there should be a departure from basis. Also, in Hong Kong, many cases come before the court to equality, the court may consider a list of potential and determine whether an asset which is beneficially owned by one common “material factors” which include a consideration of the parties, does in fact belong to that party. It is common of the facts including the source of the asset, conduct, length for family members to put property in the names of their chil- of marriage, contributions to the family – both financial dren or parents without the intention of transferring ownership. and non-financial and any claims for compensation. Leading cases on this topic include the Court of Final Appeal (5) Deciding the outcome weighing up all the considerations, decisions in KLK v PLTO Court of Final Appeal 21 of 2013; particularly in Step 4. [2014] HKFLR 329 and Court of Appeal PW v PPTW (Ancillary As the Hong Kong Ordinance is so similar to that of England relief; non-matrimonial property) [2015] HKFLR; No. 224 of 2013. and Wales, in particular s7 MPPO with s25 Matrimonial Causes Act 1973, the case law is also very similar and practitioners in England will be familiar with the cases cited in Hong Kong 2.8 Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can judgments. the court make orders applying foreign law rather than the law of the jurisdiction? 2.4 Is the position different between capital and maintenance orders? If so, how? No, the courts in Hong Kong do not treat foreign nationals differently. So long as a party can meet the jurisdictional No, the same factors apply to both capital and maintenance requirements set out under s3 MCO (see question 1.1 above), orders. However, capital will be subject to the sharing principle, they can bring an action here. if needs are covered, but it is less clear in respect of equal sharing The courts can only apply foreign laws if an application is of future income. It will depend on the facts as to whether made for a mirror order in Hong Kong; Lex Fori applies in Hong future income can be taken into account: A v B [2016] HKFLR Kong as in England & Wales. 332. There is no statutory duty in Hong Kong to consider a clean break. See also SSLT v SMFC (Ancillary relief; non-matrimonial assets) [2019] HKFLR 458; [2019] HKFC 250. 2.9 How is the matrimonial home treated on divorce?

The matrimonial home is treated in the same way as any other 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? marital asset in Hong Kong and will form part of the marital asset pool. The majority of the population in Hong Kong are housed If there is agreement between the parties, they must submit in rented accommodation. There is also a Home Ownership their settlement in the form of a consent summons to court for Scheme which relates to housing for low income families which a court order. Even if there are no assets and no children, it have been sold to them for less than the market value. Any order is advisable to finalise all matters and dismiss all claims in a for the transfer of such properties requires the consent of the consent order sealed by the court. Housing Authority and is subject to the sale restrictions of the If the parties have been able to agree on all matters before Housing Ordinance Cap 283. they issue the divorce petition, or if they are able to agree before the First Appointment, they will never have to attend court. If there is any dispute as to children or finances, the chances 2.10 Is the concept of “trusts” recognised in your are that they will have to attend either the First Appointment jurisdiction? If so, how? which is the initial hearing in respect of disputed finances, or the Children’s Appointment if there is disagreement in respect The concept of “trusts” is recognised in Hong Kong. The devel- of the children, or both. opment of trusts originated in the need for tax planning to mitigate Estate Duty but this was abolished in 2006 with the passing 2.6 How long can spousal maintenance orders last and of the Revenue (Abolition of Estate Duty) Ordinance. The law are such orders commonplace? in relation to trusts in Hong Kong was revised in April 2014 with the Trustee Ordinance Cap 29. Spousal maintenance orders are commonplace in Hong Kong. There are a number of ways in which trusts can become The order for spousal maintenance cannot begin before involved in divorce proceedings, including where there is a making an application for an order and cannot take effect until claim under s6 MPPO for a variation of settlement or where after decree absolute. The order will last until the death of either the trust is a resource of the family (s7(1)(a)MPPO). In Hong of the parties or remarriage, whichever is earlier, unless there is Kong, all assets, wherever situated, will be subject to scrutiny, an agreement between the parties that the order should cease including trusts. The leading case in Hong Kong where the at a certain date or on a certain occurrence (such as permanent trust funds were found to be a resource of the marriage is KLK cohabitation with another partner). If the periodical payments v PLTO Court of Final Appeal 21 of 2013; [2014] HKFLR 329. are to cease on a specified date, this is more commonly known Hong Kong often looks to English case law in respect of as a deferred clean break. trusts in divorce.

2.7 Is the concept of matrimonial property recognised 2.11 Can financial claims be made following a foreign in your jurisdiction? divorce in your jurisdiction? If so, what are the grounds?

Yes, in Hong Kong, many cases go before the courts arguing Since the passing of the Matrimonial Proceedings and Property whether or not a property is matrimonial. (Amendment) Ordinance 2010, Hong Kong courts have had the Often the cases involve pre-marital or post-marital property power to make orders in respect of financial claims following a which one party is seeking to take out of the marital pool on this foreign divorce.

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The grounds for making such an application are set out in 32 Marital Agreements Part IIA MPPO ss29AA–29AL. They are very similar to the English Part III Matrimonial and Family Proceedings Act 1984. An applicant must first ensure that he/she has jurisdiction to 3.1 Are marital agreements (pre and post marriage) make the application. He/she will be excluded if he/she has enforceable? Is the position the same if the agreement is a foreign agreement? remarried but applications can be made so long as the divorce is recognised as valid according to the laws in Hong Kong (s29AB). The applicant must first obtain leave to make the applica- The Court of Final Appeal in SPH v SA (Forum and marital agree- tion and similar jurisdictional hurdles must be cleared as with ments) [2014] HKFLR 286 held that the principles enunciated in divorce in respect of domicile, habitual residence and substan- the English Supreme Court case of Radmacher v Granatino [2011] 1 tial connection. AC 534 represents the law on marital agreements in Hong Kong. Under s29AF(2), the considerations which the court must take The court also held that there would be no need to distinguish into account are as follows: between pre- and post-marital agreements. (a) the connection that the parties to the marriage have with It was further held in SPH v SA that foreign elements may Hong Kong; be relevant to the question whether the parties intended their (b) the connection that those parties have with the place agreement to be effective, citing the case in Radmacher where the where the marriage was dissolved or annulled or where issues were governed by English law and the relevance of the they were legally separated; German law and choice of law clause was that it demonstrated (c) the connection that those parties have with any other place that the intention of the parties was that they were to be bound outside Hong Kong; by their agreement. Therefore, it would appear that the position (d) any financial benefit that the applicant or a child of the is the same if the agreement is foreign or not but there may be family has received, or is likely to receive, in consequence evidence in respect of intention which may be relevant as to the of the divorce, annulment or legal separation, by virtue weight which should be given to such agreements. of any agreement or the operation of the law of a place Hong Kong, therefore, follows English law as it develops in outside Hong Kong; this area. In LCYP v JEK (Ancillary relief, section 17, prenuptial (e) if an order has been made by a competent authority outside agreements & trusts) [2019] HKFLR 238; [2019] HKCFI 1588, Hong Kong requiring the other party to the marriage to the Court of First Instance considered whether the wife should make any payment or transfer any property to, or for the be held to an unvitiated prenuptial agreement. In that case the benefit of, the applicant or a child of the family: Judge held that the circumstances had changed to such a degree (i) the financial relief given by the order; and over a long marriage that the parties could not have antici- (ii) the extent to which the order has been complied with pated their situation at divorce at the time of the signing of the or is likely to be complied with; prenuptial agreement. The court would, however, have regard (f) any right that the applicant has, or has had, to apply for to the agreement where it was not unfair to do so. financial relief from the other party to the marriage under the law of any place outside Hong Kong and, if the appli- 3.2 What are the procedural requirements for a marital cant has not exercised that right, the reason for that; agreement to be enforceable on divorce? (g) the availability of any property in Hong Kong in respect of which an order for financial relief in favour of the appli- The facts surrounding the finalisation of the agreement will be cant may be made; material as to how much weight can be placed on the agreement. (h) the extent to which any order for financial relief is likely to There must be both procedural and substantive fairness. An be enforceable; and agreement will only carry full weight: (i) the length of time that has elapsed since the date of the “if each party had entered into it of his or her own free divorce, annulment or legal separation. will, without undue influence or pressure, having all the Once leave has been granted, the court has power to make information material to his or her decision to enter into the usual financial orders under ss4–6A MPPO set out above. the agreement and intending that it should be effective The leading case in Hong Kong for Part IIA applications is C to govern the financial consequences of the marriage v H (Foreign Decree: Part IIA) [2012] HKFLR 199. coming to an end … Enforcement of the agreement could be rendered unfair by the occurrence of contingencies 2.12 What methods of dispute resolution are available unforeseen at the time of the agreement or where, in the to resolve financial settlement on divorce? E.g. court, circumstances prevailing at the time of separation, one mediation, arbitration? partner would be left in a predicament of real need while the other enjoyed a sufficiency.” (Para. 34 SPH v SA.) At present, dispute resolution in Hong Kong comprises court The parties should finalise the agreement within 28 days litigation, mediation and collaborative practice. before the marriage. This is not a rule but an indication that Hong Kong does not have a system in place yet for family arbi- both parties had sufficient time to consider their positions before tration although from January 2016 there has been a pilot scheme the wedding. The parties should also both sign the document as for, private adjudication. For the time being, private adjudication a deed and if there is a language element, a translator should be can only be for financial disputes, not matters involving children present. There should be independent legal advice on both sides. or the divorce itself. The scheme is consensual and parties agree to be bound by the decision of the private adjudicator. Hong 3.3 Can marital agreements cover a spouse’s financial Kong saw the first such private adjudication recently. claims on divorce, e.g. for maintenance or compensation, Mediation is well-established in Hong Kong, both privately or are they limited to the election of the matrimonial and as part of the court procedure. All parties who are in property regime? Can they deal with financial claims dispute over finances and children must go through the regarding children, e.g. child maintenance)? Financial Dispute Resolution procedure and Children’s Dispute Resolution procedure respectively. This procedure is designed Such agreements can cover a spouse’s financial claims on to promote court-assisted settlement. divorce, including maintenance and compensation. The parties

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cannot oust the jurisdiction of the court and every agreement The law in respect of children of married parents is found in which a party seeks to enforce will be scrutinised by the Hong MPPO. The law in respect of children of unmarried parents is Kong courts. found in the Guardianship of Minors Ordinance Cap 13 (GMO). There is no matrimonial property regime in Hong Kong. The court can make financial provision orders for children Pre-marital agreements in Hong Kong do not deal with child of married parents under s5 MPPO for periodical payments, maintenance or other claims relating to the financial mainte- secured periodical payments and lump sum, which can be payable nance of children. Post-marital agreements may contain such in instalments. Under s6 MPPO, the court can order a property provisions, particularly if the agreement is a separation agree- adjustment order in favour of a child and the jurisdiction of the ment aimed at settling all financial and custody arrangements court is the same as that relating to an order in favour of a spouse. prior to issuing a petition for divorce. The court can make financial provision orders for the children of unmarried parents under s10(2) GMO as follows: 42 Cohabitation and the Unmarried Family (a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum 4.1 Do cohabitants, who do not have children, have (whether in one amount or by instalments) for the imme- financial claims if the couple separate? What are the diate and non-recurring needs of the minor or for the grounds to make a financial claim? purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reason- There is no right under matrimonial legislation for a cohabitee to able having regard to the means of that parent; make a financial claim in Hong Kong if they separate. The party (b) an order requiring payment to the applicant by such parent must fall back on the remedies available to those arising out of or either of such parents of such periodical sum towards the general laws of, e.g., contract (if any contract has been entered the maintenance of the minor as the court thinks reason- into to govern the parties’ rights), or property, e.g., contribution able having regard to the means of that parent; to the purchase price or loan repayments on a property may give (c) an order requiring the securing to the applicant by such rise to a beneficial interest and/or a right to live in the property, parent or either of such parents, to the satisfaction of the as may a common intention by the parties in that regard, even if court, of such periodical sum towards the maintenance of the property is registered in the other party’s name. the minor as the court thinks reasonable having regard to the means of that parent; 4.2 What financial orders can a cohabitant obtain? (d) an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or A cohabitee in Hong Kong does not have a right to apply for either of such parents, of such property, being property to financial orders other than as an applicant in the civil courts which the parent is entitled (either in possession or rever- mentioned above. sion), as the court thinks reasonable having regard to the The position is different if there are children of the relation- means of that parent; and ship. In that case, in addition to the financial provision set out in (e) an order requiring the settlement for the benefit of the question 5.1 below, the parent who has the care and control of the minor, to the satisfaction of the court, of such property, children can apply for a carer’s allowance. This is a monthly sum being property to which such parent or either of such which is payable to compensate the carer for any restriction in parents is so entitled, as the court thinks reasonable having employment as a result of looking after the children. The courts regard to the means of that parent. in Hong Kong have made it clear that such an allowance cannot See the Court of Appeal case of IDC v SSA (Lump sum for chil- be as generous to a cohabitee as to a spouse. The leading case is dren of unmarried parents) [2014] HKFLR 267. WGL v ASB (Child maintenance under the GMO) [2013] HKFLR 391. 5.2 How is child maintenance calculated and is it administered by the court or an agency? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? There is no agency in Hong Kong and child maintenance is No, there is not. assessed by the court bearing in mind the factors set out in s7(2) MPPO as follows: “(a) the financial needs of the child; 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? (b) the income, earning capacity (if any), property and other financial resources of the child; (c) any physical or mental disability of the child; No, they are not. (d) the standard of living enjoyed by the family before the breakdown of the marriage; and 52 Child Maintenance (e) the manner in which he/she was being and in which the parties to the marriage expected him/her to be 5.1 What financial claims are available to parents on educated, behalf of children within or outside of marriage? and so to exercise those powers as to place the child, so far as it is practicable … in the financial position in which the The children of parents within and outside of marriage are child would have been if the marriage had not broken down treated differently, albeit the overarching consideration for the and each of those parties had properly discharged his or courts is the welfare and best interests of the child irrespective her financial obligations and responsibilities towards him.” of the marital status of his/her parent.

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5.3 For how long is a parent required to pay child specific mention in the GMO and therefore the definition under maintenance or provide financial support for their Cap 1 is adopted. children? For example, can a child seek maintenance Unfortunately there is some inconsistency in the MPPO, during university? as s18(5)(a) (which requires the court to be satisfied that the arrangements for the child are the best that can be achieved The usual order in respect of children’s maintenance is that the under the circumstances) defines a child of the family to whom order should continue until the child reaches 18, or completes the section applies as being a minor child who is below the age his/her full-time education, whichever is later. of 16 years or who is receiving instruction at an educational Under s10(1) MPPO, the court cannot make an order in favour establishment or undergoing training for a trade, profession or of a child who has reached 18, but under s10(3)(b) an order can vocation. This legislation is currently under review. be made if: (a) that child is, or will be, receiving instruction at an educational establishment or undergoing training for a trade, 6.4 What orders can the court make in relation to profession or vocation, whether or not he/she is also, or will also children? Does the court automatically make orders in be, in gainful employment; or (b) there are special circumstances relation to child arrangements in the event of divorce? which justify the making of the order or provisions (for example, if the child is suffering from a disability). There are similar provisions for children of unmarried parents The court can make orders for joint or sole custody, care and under the GMO s12A(3). control and access. “Custody” in Hong Kong means the right to make important decisions on behalf of the child, for example in respect of education, health and religion. The non-custodial 5.4 Can capital or property orders be made to or for the parent can always be heard on these issues on his/her applica- benefit of a child? tion to the court. “Care and control” is the day-to-day care of the children and “access” comprises the arrangements which Yes, please see question 5.1 above. ensure the children’s right to contact with the non-custodial parent. The leading case is the Court of Appeal case of PD v 5.5 Can a child or adult make a financial claim directly KWW (Child: Joint Custody, care and control) [2010] HKFLR 184. against their parents? If so, what factors will the court The courts will occasionally make an order for shared care if take into account? that is the agreement between the parties. The court will make an order in respect of children. There is currently no provision for “no order” to be made in the Hong Yes, it is possible for a child to make a claim against his/her Kong courts. The court must also make a s18 declaration (see parents if he/she has a guardian ad litem to make the application on his/her behalf. An individual who has attained 18 years question 1.5), whether there are children of the family or not. but who is still in full-time education or undergoing training for a trade, profession or vocation can make an application against 6.5 What factors does the court consider when making a parent. orders in relation to children? The factors that a court must take into account with any application for child maintenance, if such maintenance is payable The court must regard the best interests of the child as the first pursuant to s10(3)(b), would be the same as those set out at ques- and paramount consideration (s3 GMO and s48 MCO). With tion 5.2 above. this in mind, the court must take into account the views of the child, having regard to his/her age and understanding, and “any 62 Children – Parental Responsibility and material information” including any social welfare report. Custody In Hong Kong, there is not a list of factors to which the courts must have regard, but in practice the courts do look at a list of 6.1 Explain what rights of custody both parents have in factors recommended by the Law Reform Commission which your jurisdiction whether (a) married, or (b) unmarried? is based on the English Children Act 1989, and which includes some elements of the Australian Family Law Act. Such factors (a) Both parents in a marriage have equal rights of custody. include the child’s physical, emotional and educational needs, (b) Under s3(1)(c) GMO, only the mother has rights of custody the likely effect on him/her of any change in circumstances, where the parents are unmarried. For the father to gain his/her age, maturity, sex, social and cultural background, any equal rights, he must make an application to the court harm which he/she has suffered or is at the risk of suffering, the pursuant to s3(1)(d). capability of his/her parents to meet his/her needs, the nature of his/her relationship with each parent and the attitude to the child and the responsibilities of parenthood demonstrated by 6.2 At what age are children considered adults by the each of the parents. court?

6.6 Without court orders, what can parents do Under s3 of the Interpretation and General Clauses Ordinance unilaterally? For example, can they take a child abroad? Cap 1, a child is defined as a person who has not yet attained 18 years of age. If there are no proceedings before the court, the parents can move freely with their children. Upon the commencement of 6.3 What is the duration of children orders (up to the proceedings, however, all children of the family fall within the age of 16 or 18 or otherwise)? jurisdiction of the court and if one parent wishes to remove the child from Hong Kong, consent of the other party is required. Under s19(1) MPPO, the court can make an order for custody Once a custody order has been made, there will be a restriction for a child of the family who is under the age of 18. There is no on the removal of the child from Hong Kong without leave of

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the court, unless the parent removing the child files a written so that they are able to effectively parent their children post sepa- undertaking to return the child to the jurisdiction and the other ration or divorce. The intention is to ensure that whilst the best parent consents in writing to the removal. interests of children remain the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere. The focus is therefore on 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? the children’s best interests together with the duties and responsibilities of their parents”. Please see Practice Direction 15.13. Collaborative practice is also available for the resolution of There is no presumption of an equal division of time, although children’s disputes. the courts recognise that children normally benefit from access to both parents. The court will look at all the factors and decide 72 Children – International Aspects what is in the children’s best interests given their education and commitments. 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? No, if one parent wants to move permanently from the jurisdiction of Hong Kong, consent of the other parent is required. There is also a requirement to obtain an order for leave for a Similar provisions apply under the GMO and the MPPO in child to be permanently removed, or, in the event that the child respect of custody although, as noted above, the father of an has already left, that leave be given allowing him/her to remain illegitimate child will have to make an application under s3(1)(d) permanently outside the jurisdiction, whether or not by consent. to be recognised as having equal rights to the mother.

7.2 Can the custodial parent move to another part of 6.9 Is a welfare report prepared by an independent the state/country without the other parent’s consent? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? As Hong Kong is a relatively small country, this does not apply. Normally, the judge will be guided by the social welfare report prepared by an officer of the Director of Social Welfare as the 7.3 If the court is making a decision on relocation of a “eyes and ears” of the court. However, such a report is only to child abroad, what factors are taken into account? assist the judge and there is no presumption that any recommendation in the report will be followed by the judge. The judge can The court must make a decision based on the best interests of meet the child and in 2012, the Chief Justice produced a helpful the child. There are no statutory guidelines in respect of factors guidance note to assist judges should there be a judicial meeting. a court should take into account, although courts do regularly This note covers whether there should be a meeting, the factors refer to a “welfare checklist”, which includes: the ascertain- a judge should bear in mind and the procedure to follow. able views of the child; his physical, emotional and educational needs; the likely effect on him of any change in his circumstances; his age, maturity, sex, social and cultural background; 6.10 Is there separate representation for children in your any harm which he has suffered or is at risk of suffering; and the jurisdiction and, if so, who would represent them, e.g. a lawyer? nature of the relationship of the child with each of the child’s parents and with other relevant persons and the attitude to the child, and to the responsibilities of parenthood, demonstrated A child may have his/her own separate legal representation or be by each of the child’s parents. represented by the Official Solicitor. Guidance has been given The court will also consider the reasonable proposals of the by the Court of First Instance in C v S (On separate representa- parent wishing to leave, scrutinising whether there is a genuine tion) [2018] HKFLR 159 ([2018] HKCFI 390). Guidance has motivation for the move and not to bring contact with the also been given by the Chief Justice in Practice Direction SL6 other parent to an end. The arrangements for the child must in 2012, which provides a list of circumstances in which the be practical and set out well. The effect on the primary carer is judge could consider making an order that the child be sepa- important, although not paramount, in Hong Kong as part of rately represented. the welfare of the child principle. The effect on the parent left behind is also important and the court will carefully consider 6.11 Do any other adults have a say in relation to the continuing contact. arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute 7.4 If the court is making a decision on a child moving resolution are available to resolve disputes relating to to a different part of the state/country, what factors are children? taken into account?

At present, there is very little that adults, other than the parents, See the answer to question 7.2. can do unless they apply under the laws of guardianship. The law in this area is currently under review. In addition to litigation through the courts in respect of 7.5 In practice, how rare is it for the custodial parent to custody and access, disputes relating to children are often dealt be allowed to relocate internationally/interstate? with through private mediation. There is also a scheme in the Family Court for Children’s In practice, primary carers can normally leave Hong Kong if Dispute Resolution which aims to support “mothers and fathers, the arrangements are suitable for the child. The Hong Kong

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courts see a number of such applications each year involving and applications to vary maintenance. The lockdown inevi- expatriates seeking to go “home”. Increasingly, however, if the tably placed extreme strain on relationships which were already parenting is deemed to be shared, the courts may not allow the in trouble and the poor economic outlook suggests that there child to permanently relocate if the children were benefitting will be more applications to vary maintenance and defaults in from the shared care. payments.

7.6 How does your jurisdiction deal with abduction 8.3 To what extent and how has the court process and cases? For example, is your jurisdiction a party to the other dispute resolution methods for family law been Hague Convention? adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to Hong Kong is a signatory to the Hague Convention and the remain after the COVID-19 crisis has passed? provisions of the convention were given effect by the enactment of the Child Abduction and Custody Ordinance Cap 512 in 1997. Habitual residence in respect of Hague applications and issues Courts in Hong Kong have increasingly used video conferencing as to removal of children from Hong Kong were considered in as a result of the GAP. In a judgment by the Court of Appeal, the Court of Appeal cases of JEK v LCYP CACV 125 of 2015; CSFK v HWH (Appeal against an FDR order) [2020] HKCA 207, [2015] HKFLR 425; [2015] 5 HKC 293 and BMC v BGC (Hague) the court confirmed that it was permissible to conduct a hearing [2020] HKCA 317. using video conferencing facilities (VCF); so long as the judges were sitting in the High Court, there was no specific provision 82 Overview restricting the mode of receiving submissions and evidence of the parties. It was important to keep a record and the VCF would be linked to the DARTS system. 8.1 In your view, what are the significant developments In addition, in the case of Cyberworks Audio Video Technolog y in family law in your jurisdiction in the last two years? Ltd v MEI AH (HK) Company Ltd and Ors, Mr. Justice Coleman ordered that directions could be given by him by telephone. A significant development in Hong Kong in the last two He did this in his courtroom, using a speakerphone so that all years was the signing of the Proposed Arrangements with participants in the telephone hearing could be recorded using the Mainland on Reciprocal Recognition and Enforcement of the DARTS system. This case involved an application, which Judgements on Matrimonial and Related Matters in June 2017. was not opposed, for directions that one of the parties’ witnesses This long-awaited agreement between Hong Kong and the be allowed to give evidence by videoconferencing and therefore PRC will finally allow divorce petitions from the Hong Kong sought leave to use the facilities of the Technology Court. See courts to be recognised in China and for orders of the courts on Practice Direction 29: Use of the Technology Court. both sides to be enforceable. With the increase in cross-border The judge noted that the current crisis was an opportunity disputes this was an important step. Although it was anticipated for the courts and parties to litigation to reassess how cases can that this would come into force in late 2018, it is, at the time of best be actively managed in furtherance of the underlying objec- writing, yet to be finalised. tives of the court. He went further to suggest that there was a There was a small and tentative move towards the recognition strong argument for moving matters in a similar way beyond the of same-sex couples in the Court of Final Appeal case of Director end of the crisis. of Immigration v QT [2018] HKCFA 28, in which the court found that the partner in a same-sex civil partnership from England 8.4 What are some of the areas of family law which you could apply for a dependant’s visa in Hong Kong. This was then think should be looked into in your jurisdiction? extended to civil service benefits in the Court of Final Appeal case of Leung Chun Kwong v Secretary for the Civil Service & Anor (No.3) [2019] HKCFA 19. Family lawyers are waiting patiently for two important pieces of legislation to be passed by the government. The first is a Proposed Children’s Proceedings (Parental Responsibility) Bill 8.2 What impact, if any, has the COVID-19 pandemic which will consolidate the many different ordinances dealing had on family law in your jurisdiction to date, and is with children, clarify and modernise the law in respect of likely to have over the next 12 months? custody, care and control and set out clear guidelines as to when parental consent is required and importantly to dispense with In Hong Kong there was a General Adjournment Period (GAP) the differentiation between children of married and unmarried where the courts were shut from Chinese New Year in January parents. until May 2020. This had a direct impact on family cases as only The second piece of legislation is a proposed set of family emergency cases could be heard and the use of technology came procedure rules which will provide practitioners with clear guid- into its own as outlined below. ance of procedure and in one place. At the moment, Hong Kong In respect of the impact of COVID-19 in future, with the end family procedures can be found in statute, subsidiary legislation of the GAP, the Hong Kong courts saw a number of applications and in the rules of civil procedure. The aim is to have a set in respect of access to children, removals from the jurisdiction similar to the Family Procedure Rules in England & Wales.

Family Law 2021 82 Hong Kong

Sharon Ser heads the family department of Withers Hong Kong and is the Senior Regional Partner for Withers. Sharon focuses on family matters and international divorce cases involving jurisdiction arguments and financial issues with global assets. She has also increasingly advised on the drafting and enforceability of ante- and post-nuptial agreements. She has been involved in a number of the key reported cases in the family field, many of which have fundamentally impacted on this area of the law. Sharon has been a frequent lecturer for the Law Society and other institutions on family law in Hong Kong and overseas and is a Fellow of the International Academy of Family Lawyers. Ever the optimist, Sharon is also an appointed Civil Celebrant of Marriages. Sharon obtained an LL.B. Law Degree at the London School of Economics, London. She is admitted to practise as a Solicitor in England and Wales as well as Hong Kong SAR.

Withers Tel: +852 3711 1600 30/F, United Centre Email: [email protected] 95 Queensway URL: www.withersworldwide.com Hong Kong

Philippa Hewitt is a Professional Support Lawyer at Withers Hong Kong. Qualifying in England and Wales in 1990 and Hong Kong in 1991, Philippa has practised family law for a number of years. She has authored many articles on family law practice. She is the editor and co-author of the Family Law Legal Practice Manual, published in 1998 and Family Law and Practice in Hong Kong for Sweet & Maxwell, published in 2011, the second edition in 2014 and the third edition in 2018. She is a contributor to the Hong Kong White Book 2015–2020, as well as Atkins Court Forms for Lexis in 2010 and 2011 and the Family volume of the Encyclopaedia of Forms and Precedents, also for Lexis in 2011 and 2019. She has been the editor and main reporter for the Hong Kong Family Law Reports from 2005 to date. She has contributed articles for The Lawyer in Hong Kong, as well as a number of articles for the SCMP and other regional media.

Withers Tel: +852 3711 1600 30/F, United Centre Email: [email protected] 95 Queensway URL: www.withersworldwide.com Hong Kong

Withers is the world’s first international law firm dedicated to the business, personal and philanthropic interests of successful people, their businesses, families, banks and advisers. The firm has acted for 70% of The Sunday Times’ Top 100 Rich List, 35% of the Hong Kong Forbes Rich List and 25% of Forbes 400’s List of the Wealthiest Americans. Established in 2008, our Hong Kong office has US, UK, Australian, BVI and Hong Kong qualified lawyers who advise on family law, wealth planning and tax structuring. Our lawyers are also experts on probate and trust work, litigation (for companies and individuals), employment, immigration and corporate transactions. Sharon and her firm have represented clients in Hong Kong on the major issues facing family law litigants with Court of Final Appeal decisions that have changed the direction of family law. Withers has 17 offices across Asia, Australia, Europe, the United States and the Caribbean, with over 180 partners worldwide. www.withersworldwide.com

Family Law 2021 Chapter 12 83

Ireland Ireland

Karen O’Leary

Caldwell & Robinson Geraldine Keehan

12 Divorce settlement have been agreed. The applicant’s attendance is required provided the Court is satisfied that the Respondent has been correctly served with all of the divorce documenta- 1.1 What are the grounds of jurisdiction for divorce tion. Otherwise both parties are required to attend Court as the proceedings? For example, residence, nationality, divorce hearing is heard before the Judge, who will adjudicate domicile, etc.? with respect to the proposed terms of settlement as to whether it provides for “proper provision” for the financially weaker spouse The Courts of the Republic of Ireland will have jurisdiction for and/or children. Consequently, it is not possible to have a private divorce proceedings where: divorce, as all matters need to be heard through the Courts. (a) The habitual residence of both spouses is Ireland. (b) The last habitual residence of both spouses was Ireland, and one spouse still resides there. 1.4 What is the procedure and timescale for a divorce? (c) The respondent’s habitual residence is Ireland. (d) The Applicant’s habitual residence was Ireland for at least There are two Courts which deal with divorce in the Republic one year immediately before the application is made. of Ireland. The Circuit Court, which deals with most cases, and (e) The Applicant’s habitual residence was Ireland for at least the High Court, which deals with complex and high-net-worth six months and he/she is domiciled in Ireland. cases. Five documents need to be submitted to the Court Office (f) Both spouses are domiciled in Ireland. in order to proceed with a divorce. These are: (g) Where the Court determines no other EU Member State (i.e. (a) A Family Law Civil Bill/Originating Summons. party to Brussels II) has jurisdiction for divorce proceedings. (b) Sworn Affidavit of Means. (c) Sworn Affidavit of Welfare regarding arrangements for the 1.2 What are the grounds for a divorce? For example, dependent children. is there a required period of separation, can the parties (d) A certificate (signed by the party’s solicitor) that the party have an uncontested divorce? has been advised by with respect to counselling and or mediation services as an alternative to court proceedings. The couple must have been living apart from one another for (e) Original marriage certificate. at least two out of the previous three years before the applica- The respondent will then have to submit a number of forms st tion is made (before 1 December 2019, this was four out of the in response as well: previous five years). The Family Law Act 2019 also provides a (f) Original marriage certificate. new definition of the term “living apart” as outlined below. (g) An Appearance which indicates the other person’s intention to contest or not the application or any aspect of it. Living apart definition (h) A Defence and Counterclaim if necessary, which disputes The Family Law Act 2019 provides a definition of “living apart” any matters contained in the Family Law Civil Bill and sets to give certainty to the interpretation of the term in the Irish out the relief which the other party is seeking. Courts. It clarifies that spouses who live in the same home as (i) An Affidavit of Means. one another are considered to be “living apart” if the spouses (j) An Affidavit of Welfare. are not living together as a couple in an intimate and committed relationship. The Act also sets out that a relationship does not (k) A Certificate that the party has been advised by their solic- cease to be an intimate relationship merely because the relation- itor with respect to counselling and/or mediation services ship is no longer sexual in nature. as an alternative to court proceedings. There must be no reasonable prospect of reconciliation. In a non-contested divorce, subject to Court delays, the Proper arrangements must have been made or will be made process may take upwards of 9–12 months approximately. for the spouse and any dependent members of the family, such In a contested divorce, the likely timescale may be 18 months as children and other relatives. to two years or longer.

1.3 In the case of an uncontested divorce, do the 1.5 Can a divorce be finalised without resolving other parties need to attend court and is it possible to have a associated matters? For example, children and finances. “private” divorce, i.e. without any court involvement? A divorce cannot be finalised without resolving all outstanding It is possible to have an uncontested divorce where terms of matters, whether they be children or finances.

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1.6 Are foreign divorces recognised in your jurisdiction? 22 Finances on Divorce If so, what are the procedural requirements, if any?

2.1 What financial orders can the court make on Whether a divorce is recognised or not will depend on a number divorce? of factors, including: (a) Where it was granted. (b) When the divorce was granted. The Courts can make a number of orders, including: (c) Whether either of the spouses lived in the jurisdiction (a) Maintenance (periodical payment) Orders. granting the divorce, for how long and whether or not it (b) Lump Sum Orders. was their normal residence and whether they intended to (c) Property Adjustment Orders for a transfer of any property stay there. or assets between the spouses. A foreign divorce obtained on or after 2nd October 1986 is (d) Orders conferring on one spouse an exclusive right to subject to the provisions of the Domicile and Recognition of reside in the family home. Foreign Divorces Act 1986 (1986 Act); in such cases the Irish (e) Orders for the sale of the property. Courts will recognise a foreign divorce where either spouse was (f) Financial Compensation Orders. domiciled in the foreign state at the date of commencement of (g) Pension Adjustment Orders. the proceedings. (h) Orders extinguishing succession rights and dealing with On or after 1st March 2001, foreign divorces granted in other Relief Orders following death. EU Member States (excluding Denmark) receive automatic recognition based on a number of grounds including residence. 2.2 Do matrimonial regimes exist and do they need to Where there is a dispute, it is possible to make an application be addressed by the court on divorce? Is there a default under the Family Law Act 1995 to seek a formal declaration as matrimonial regime? to marital status. There is no concept of matrimonial regime under the law of 1.7 Does your jurisdiction allow separation or nullity the Republic of Ireland and there is therefore no default regime. proceedings?

2.3 How does the court decide what financial orders to Yes, Ireland has processes for both judicial separation and make? What factors are taken into account? nullity, although nullity is rarely used in practice. Judicial separation proceedings are commonly used when a couple cannot agree the terms by which they will live separately. The Court has to have regard to ensure “that proper provision” Either party can apply to the Court for a Decree of Judicial is made for the spouse and any dependent children. S.20 of the Separation. A Decree of Judicial Separation removes the obli- Family Law (Divorce) Act 1996 sets out the factors to which gation on spouses to cohabit. Many separating couples obtain the Court must have regard when considering whether to grant a separation by agreement or apply to the Court for a Decree Financial Relief Orders. These include the financial position of of Judicial Separation to regulate matters between them before each party, the standard of living enjoyed by the parties, conduct they apply for a divorce. where it would be unjust to disregard it, and contributions made The grounds for a judicial separation are: by each spouse. The concept of full and final settlement on (a) Adultery. divorce does not exist in Ireland. (b) One person has behaved in such a way that it would be There are no specific rules governing assessment of “proper unreasonable to expect the other person to continue to live provision”. On the issue of “proper provision”, there are three with them. significant cases which have come before the Courts in the rela- (c) The couples have lived apart from one another for a tively recent past. These are: continuous period of at least one year up to the time of (a) Q.R. v S.T. the application and both parties agree to the Decree being (b) C.C. v N.C. granted. (c) N.G. v Y.G. (d) The couple have lived apart from one another for at least In Q.R. v S.T., the Court of Appeal was asked to consider three years at the time of the application for the Decree. whether or not “proper provision” had been made for the (e) The Court considers that a normal marital relationship has Applicant Wife in judicial separation proceedings. The assets not existed between the spouses for at least one year before of the parties, whilst not set out in the Judgment, were believed the date of the application for the Decree. to be in excess of €30 million. The High Court had awarded (f) Behaviour is not generally taken into account unless it is the Applicant Wife a lump sum of €3.8 million plus substan- “gross and obvious” and where it would be unjust to disre- tial maintenance (€7,000 per month for the Applicant Wife and gard it. €6,500 in respect of each of the dependent children). In Irish law, a marriage may be void due to lack of capacity, The provision made for the wife represented approximately non-observance of formalities or absence of consent. It is not 11% to 12% of the total assets. possible to seek financial relief on the ground of a decree of The Court on appeal took the view that the High Court Judge nullity, the effect of which is to declare that no marriage ever had not failed to comply with his statutory obligations under existed between the parties. Section 16 (2) (a). In this Judgment, the Court addressed the meaning of “proper provision”, rejecting any concept of a yard 1.8 Can divorce proceedings be stayed if there are stick. The Court’s approach in this case and reference to provi- proceedings in another country? sion being “reasonable in all of the circumstances” is similar to that of the “reasonable requirements” yard stick, which fell out Yes, EU Regulation Brussels II provides for mandatory stays of favour in the England and Wales jurisdiction following the where there are proceedings first seised in another Member State. decision in White v White.

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In N.G. v Y.G., relating to divorce proceedings, the Court 2.4 Is the position different between capital and looked at a Separation Agreement which had been entered into maintenance orders? If so, how? between the parties 17 years previously. The Court made the following observations: Case law confirms that capital and maintenance orders are very (a) A Separation Agreement is a legal document entered into different and whilst matrimonial capital may be divided on with consent by both parties and it should be given signif- divorce (on the basis of proper provision), future income is not icant weight. shared equally and maintenance orders are generally calculated (b) Irish law does not establish a right to a clean break. by reference to “needs”. However, it is a legitimate aspiration. (c) The constitutional legislative scheme gives the Court specific jurisdiction and duty under the 1996 Act. This 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? duty requires the Court to make proper provision, having regard to all the circumstances. A Deed of Separation stated to be in full and final settlement is a significant Yes, as the Court will need to determine if it is satisfied that factor. “proper provision” has been made. (d) If the circumstances are the same as when the Separation Agreement was signed, then prima facie, a provision made 2.6 How long can spousal maintenance orders last and by the Court will be the same as long as it is considered to are such orders commonplace? be proper provision. (e) The requirement is to make “proper provision” and it is Courts may grant a Maintenance Order for the support of the not a requirement of a redistribution of wealth. financially dependent spouse either as periodical payment, or (f) The relevant change of circumstances may include the a lump-sum payment. These Orders are subject to variation, changed needs of the spouse. discharge or suspension in circumstances where they may be (g) The changed circumstances which may be relevant reviewed at a later date. Typically, Maintenance Orders are open included the bursting of the “property bubble”, which had ended; however, there can be Maintenance Orders limited in altered the value of the assets source to render the earlier duration. The obligation of spousal maintenance only termi- provisions unjust. nates on the death or remarriage of the receiving spouse, (h) If the spouse acquires wealth after separation and the although a Court is likely to take account of a spouse cohabiting wealth is unconnected to any joint project by the spouses with a new partner as a factor in considering whether to impose during their married life, then that is not a factor of itself a Maintenance Payment. Both the Circuit and High Court have to vest in the other spouse, a right to further monies or unlimited jurisdiction with regard to the level of Maintenance assets. Orders for spouses and children. (i) If in the period subsequent to the conclusion of a In recent times, there has been greater emphasis on time Separation Agreement, one spouse becomes very wealthy, limited Maintenance Orders and on dependent spouse retraining there is no right to an automatic increase in money or and returning to employment; however, where there are ample other assets for the other spouse. Facts and circum- resources, maintenance is likely to be an open-ended order. stances to be considered will include the length of time since the Separation Agreement was entered into by the 2.7 Is the concept of matrimonial property recognised parties. The longer the length of time which had passed, in your jurisdiction? barring catastrophic circumstances, the less likely a Court will be to alter the arrangements. See above under question 2.1. (j) The standard of living of the dependent spouse should be commensurate with that enjoyed when the marriage ended. 2.8 Do the courts treat foreign nationals differently on (k) Assets which are inherited will not be treated as assets divorce? If so, what are the rules on applicable law? Can obtained by both parties in the marriage. the court make orders applying foreign law rather than the law of the jurisdiction? (l) Parties shall not be compensated for their own incompe- tence or indiscretions to the detriment of the other party. In setting out these principles, the Supreme Court appeared No, in Ireland family law operates on the basis of Lex Fori and to create a distinction between matrimonial or community does not apply foreign law. property, that is, property acquired by the parties during the marriage and no matrimonial property, i.e. inherited or inde- 2.9 How is the matrimonial home treated on divorce? pendent wealth accumulated post separation with the latter two not being available for consideration where there is a The matrimonial home is generally dealt with differently on the prior Separation Agreement and presumably a prior Judicial basis that the parent with primary care will continue to reside Separation Order, unless the need is shown. Therefore, the in the property until the children cease full-time education or net affect appears to be that if the Court considers that “proper reach the age of 23, whereupon depending on the assets which provision” existed at the time of the Separation Agreement (or are available for distribution, the property will either be sold and the Judicial Separation Order). There is a presumption that it split or will be retained by the resident parent. still exists and the onus on the party seeking additional relief is to establish a need. C.C. v N.C. also looked at the position where a further appli- 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? cation was made in divorce proceedings years after judicial separation proceedings which had addressed all financial matters. Yes, the concept of “trusts” is recognised in our jurisdiction and regularly appears in divorce proceedings. The Court has the

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power to take account of available resources from a trust gener- organisations in particular have called for legal reform in this ally, but not exclusively where it can be demonstrated that this area because of the rise in divorces in rural Ireland and their is accessible to the party who holds the beneficial interest. The concerns about the impact of divorce on farms, which can be Court also has the power to join trustees to financial proceed- subject to land being divided between the two spouses. ings on divorce. The Law Reform Commission has been tasked with exam- ining pre-nuptial agreements. Their Report is unlikely to be completed until 2021. It is anticipated that legal reforms will 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? emanate as a result of that Report when published.

Yes, following a foreign divorce, either party can make an appli- 3.2 What are the procedural requirements for a marital cation for Financial Relief Orders on foot of a foreign decree of agreement to be enforceable on divorce? divorce. However, such applications are more limited in scope than a financial application on foot of domestic divorce proceed- There are no procedural requirements because such agreements ings. Leave must initially be sought from the Court prior to are not automatically enforceable. bringing such an application and in determining whether leave ought to be granted, the Court must consider several factors 3.3 Can marital agreements cover a spouse’s including the connection the spouse may have with the state, financial claims on divorce, e.g. for maintenance existing financial arrangements and the possibility of seeking or compensation, or are they limited to the election relief in the original state. of the matrimonial property regime? Can they deal with financial claims regarding children, e.g. child maintenance)? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? Marital agreements can deal with financial matters, including capital sums and income. Ireland does not have a matrimonial There is a statutory obligation on solicitors to provide their property regime. Solicitors are generally reluctant to draft pre-nup- client with information and advice to the alternatives available tial agreements in circumstances where they are not enforceable. to court proceedings, which includes mediation. The Mediation There is no reported case law in Ireland on pre-nuptial Act 2017 introduced the definition of “mediation”, which agreements. accords with what is contained in EU Directive 2008/52/EC The same principals apply to pre- and post-nuptial agree- on Mediation and Civil and Commercial Matters. There was ments enacted in a foreign jurisdiction. a recent government announcement on 1st July 2020 affirming the commitment to alternative dispute resolution (“ADR”) by 42 Cohabitation and the Unmarried Family the new government to encourage greater use of mediation and ADR within the context of Family Law Proceedings. 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the 32 Marital Agreements grounds to make a financial claim?

3.1 Are marital agreements (pre- and post-marriage) Legislation governing cohabitants is to be found in the some- enforceable? Is the position the same if the agreement is what awkwardly entitled Civil Partnership and Certain Rights and a foreign agreement? Obligations of Cohabitants Act 2010. This act provides for the registration of civil partners and the Marital agreements either pre- or post-marriage are not enforce- consequences of that registration, and provides for the rights able under Irish law. and obligations of cohabitants. In 2007, a Report commissioned by the Irish Government Prior to the enactment of the Marriage Act 2015, same-sex concluded that pre-nuptial agreements do not offend against the couples could enter into a Civil Partnership and have that constitutional protection accorded to the institution of marriage Partnership registered. However, under the Marriage Act 2015, and the right to marry. same-sex couples can marry and it is no longer possible to enter The group conclude that pre-nuptial agreements were enforce- into a Civil Partnership arrangement. Those in civil partner- able and capable of variation under existing Irish Statute Law. ships prior to the enactment of the Marriage Act 2015, and who Nonetheless, the Constitutional requirement of proper provi- marry, have their civil partnership dissolved (see question 4.4). sion prevented pre-nuptial agreements from being automatically enforceable in any given case. Instead, a degree of recognition 4.2 What financial orders can a cohabitant obtain? should be afforded to such agreements, to be considered in light of various other relevant factors in ancillary relief proceedings. Various significant family law reforms have taken place in Cohabiting couples are granted rights in inheritance, mainte- Ireland since then but have not included legislation in relation to nance, property, guardianship of children and adoption. These pre- and post-nuptial agreements. are broadly the same as the rights of married couples towards Some 12 years later, the Law Society of Ireland, in its 2019 each other (Part 12 of the Act of 2010). report, recommended that pre-nuptial agreements should be varied and enforceable to the extent that they support and foster 4.3 Is there a formal partnership status for cohabitants the best interests of children and spouses. The Report recom- (for example, civil partnerships, PACS)? mended that Judges should retain a wide discretion to vary the terms of those agreements. A statutory civil partnership registration scheme for same-sex The government is coming under increasing pressure to intro- couples was introduced in January 2011 under the abovemen- duce legislation relating to pre-nuptial agreements. Farming tioned act. However, following the Marriage Act 2015 in

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November 2015, couples can no longer register a civil partner- 5.3 For how long is a parent required to pay child ship. Couples already in a civil partnership can apply to marry maintenance or provide financial support for their or remain as they are. If they marry, their civil partnership is children? For example, can a child seek maintenance automatically dissolved. during university?

4.4 Are same-sex couples permitted to marry or enter A dependent child is classified as any child under the age of 18, other formal relationships in your jurisdiction? or child of the parties under the age of 23 who remains in full- time education. In May 2015, following a referendum, Ireland made history by becoming the first country in the world to vote yes to same-sex 5.4 Can capital or property orders be made to or for the marriage. The result was enacted in the Marriage Act 2015, benefit of a child? which allowed same-sex couples to marry. Prior to the enactment of the legislation, the government set up a Constitutional Maintenance in non-marital cases is usually by way of period- Convention made up of ordinary citizens and politicians. This ical payment, but an ancillary divorce/judicial separation claim was a new and relatively untested method of getting citizen can include one-off payments – though again periodical awards involvement to make recommendations on certain issues are more common. including marriage equality. When it came to the members vote, some 79% voted in favour of a marriage equality vote which 5.5 Can a child or adult make a financial claim directly gave the then government confidence to put the vote to the against their parents? If so, what factors will the court people by way of a referendum. take into account?

52 Child Maintenance See question 5.2 above.

5.1 What financial claims are available to parents on 62 Children – Parental Responsibility and behalf of children within or outside of marriage? Custody

Child maintenance is payable in Ireland by the parent of a 6.1 Explain what rights of custody both parents have in dependent child, whether or not the parents are married. What is your jurisdiction whether (a) married, or (b) unmarried relevant is parentage of the dependent child, as opposed to guardianship for the child, and maintenance is therefore payable by any The relevant legislation regulating issues of guardianship, parent of a dependent child, irrespective of whether they are exer- custody and access are the Guardianship of Infants Acts 1964– cising rights of guardianship in relation to the child or not. 1997 as amended. The principal act is the Guardianship of An application for child maintenance does not depend on Infants Act 1964 as amended (“the 1964 Act as amended”). marital status, though the particular section used to apply for Substantial amendments to the provisions regarding guard- Maintenance Orders varies depending on whether the Applicant ianship were recently enacted by the Children and Family was ever married, or indeed is still married to the respondent. An Relationships Act 2015. This legislation has expanded the catego- application for child maintenance can therefore be made ancillary ries of people who may be able to acquire guardianship in respect to judicial separation/divorce proceedings, or as a free-standing of a child, particularly unmarried fathers, and sets out the mode application. The choice of forum for a child maintenance applica- through which the acquisition of such guardianship is obtained. tion in Ireland can be significant, as lower Courts in Ireland have Guardianship confers both rights and responsibilities in rela- limits on the amount of maintenance that they can award. tion to a child, and affords the guardian rights to make decisions in relation to and be consulted about matters involving the child’s welfare and wellbeing, as well as questions of access 5.2 How is child maintenance calculated and is it administered by the court or an agency? and custody. The Irish Constitution affords particular legal significance to the institution of marriage in Irish law, and accordingly there In determining the level of maintenance to be paid, the issue is a difference in relation to married and unmarried parents in for the Court is the “proper” level of maintenance, taking into respect of guardianship. account all the circumstances of the case, and in particular: Married parents automatically acquire joint guardianship. ■ the income, assets, earning capacity (if any), property and The unmarried mother of a child automatically has guardian- other financial resources of each parent; ship of the child. The previous position regarding an unmar- ■ the financial and other responsibilities of each parent ried father was that the unmarried father did not automatically towards a spouse or a civil partner, the dependent child acquire guardianship rights in Ireland, even if the father was in respect of whom the order is sought and any other named as the child’s father on the child’s birth certificate. dependent children of either parent; and An unmarried father may, however, now acquire guardian- ■ the needs of any dependent child as aforesaid or of any ship automatically in the following circumstances: such other dependent children, including the need for care ■ the father marries the mother of the child; and attention. ■ the father enters into a civil partnership with the mother of In a marital context, other relevant factors can include the the child; or above, as well as the previous standard of living enjoyed by the ■ the father and the mother of the child concerned have parties prior to separation, together with the other factors set been cohabitants for not less than 12 consecutive months out in S.16 of the Family Law Act 1995 and S.20 of the Family after the date of commencement of the legislation, and that Law (Divorce) Act 1996. at any time after the birth of the child, both the mother and the unmarried father have lived with the child for not less than three consecutive months.

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Whilst there are now automatic means through which an 6.6 Without court orders, what can parents do unmarried father may obtain automatic guardianship, the issues unilaterally? For example, can they take a child abroad? of guardianship, custody and access are still to be determined against the principle that the child’s best interests are the para- If parents share joint guardianship rights, they require the mount consideration for any Court dealing with the matter. consent of the other party to take the child out of the jurisdiction. An unmarried father can ask that the Court make a declaration that he is a guardian of the child if there is any dispute as to whether he has obtained automatic guardianship. 6.7 Is there a presumption of an equal division of time S.8(6) of the 1964 Act as amended affords the Court the between separating or divorcing parents? power to remove guardianship from an unmarried father, even if automatically obtained under the cohabitation route referred No, there is no such presumption. to above. The Court can only effect such removal where (a) there is another guardian in place or about to be appointed, (b) 6.8 Are unmarried parents treated in the same way the Court is satisfied that it is in the best interests of the child as married parents when the court makes orders on that the guardian be removed from office, (c) for substantial separation or divorce? reasons that appear to it to be sufficient, the Court considers it necessary or desirable to do so, and (d) the guardian who is to be removed from office: (i) consents to the removal; (ii) is unable Yes, unmarried and married parents are treated in the same way. or unwilling to exercise the powers, responsibilities and entitlements of guardianship in respect of the child; or (iii) has failed 6.9 Is a welfare report prepared by an independent in his or her duty towards the child to such extent that the safety professional or is the decision taken by the Judge alone? or welfare of the child is likely to be prejudicially affected if he If so, does the child meet the Judge? or she is not removed from office. The factors that are relevant in determining the best interests It is common for the Courts to permit the instruction of an is now defined by S.31 of the 1964 Act. expert to provide a Section 32 report to advise on the wishes The 1964 Act as amended also now provides for: and feelings of the subject child(ren) and their best interests. ■ the court power to appoint a person other than a parent as guardian in certain prescribed circumstances (S.6C, 1964 Act as amended); 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a ■ an order conferring guardianship on an individual where lawyer? that individual enjoys rights equivalent to guardianship in another state (S.6D, 1964 Act as amended); ■ the appointment of a temporary guardian (S.6E 1964 Act Yes, but not always, and they are either represented by a lawyer as amended); and or a guardian ad litem. ■ a guardian in respect of a child may appoint another person to act as testamentary guardian in respect of the child in 6.11 Do any other adults have a say in relation to the the event of their death (S.7 1964 Act as amended). arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to 6.2 At what age are children considered adults by the children? court?

Yes, currently, grandparents have the right, independently of Children are considered adults at 18 years old. their own children, to make application to court for access to their grandchildren. The Children and Family Relationships 6.3 What is the duration of children orders (up to the Act 2015 gives relatives like grandparents the right to apply for age of 16 or 18 or otherwise)? access to their grandchildren.

Children orders last until the age of 18. 72 Children – International Aspects

6.4 What orders can the court make in relation to 7.1 Can the custodial parent move to another state/ children? Does the court automatically make orders in country without the other parent’s consent? relation to child arrangements in the event of divorce? No. The custodial parent cannot remove a child from the juris- Custody and access. It is common in divorce proceedings that a diction without either the prior written consent of each person court will make a joint custody order giving the day-to-day care who is a guardian of the child or by a court order which grants to one parent. permission for the child to be removed (S.6(a) Guardianship of Infants Act 1964). The custodial parent can remove a child from the jurisdic- 6.5 What factors does the court consider when making tion for a period of up to one month without the other parent’s orders in relation to children? consent; such removals usually are for the purpose of holidays or to spend time with the child’s extended family. The Court chiefly considers the best interests of the child.

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7.2 Can the custodial parent move to another part of 7.5 In practice, how rare is it for the custodial parent to the state/country without the other parent’s consent? be allowed to relocate internationally/interstate?

Please see the answer to question 7.1. Each case is considered on its own merits, subject to the guiding principles outlined above. 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 7.6 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention? Legal principals underpinning relocation cases are set out in S.31 of the Guardianship of Infants Act 1964 as amended by S.63 of the Children and Family Relationships Act 2015. These The Hague Convention was incorporated into Irish law by factors include: the introduction of the Child Abduction and Enforcement (a) the benefit to the child of having a meaningful relation- and Custody Orders Act 1991. A left-behind parent generally ship with each of his/her parents; submits an application to the Central Authority. The Central (b) the views of the child concerned that are ascertainable; Authority was set up under the above Act. (c) the physical/psychological needs of the child concerned; In the case of R v R [2015] IECA 265, the Court stated, inter (d) the history of the child’s upbringing, including the nature alia, that the onus is on the objecting party to establish that of the relationship between the child and each of his/her the return of the child would expose him/her to physical or parents; psychological harm or otherwise place him/her in an intoler- (e) the child’s religious, spiritual, cultural and linguistic able situation. upbringing and needs; The case of AU v TNU [2011] IESC 39 refers to Baroness (f) the child’s social, intellectual and education upbringing Hale’s decision in re D (A Child) (Abduction: Rights of custody) and needs; [2007] I AC 619 in which she stated “there is a growing under- (g) the child’s age and any special circumstances; standing of the importance of listening to the children involved (h) proposals made for the child’s custody, care, development in children’s cases”. and upbringing and for access to and contact with the In MN. v RN [2008] IEHC 382, the Judge stated that a child by both parents; and “mandatory positive Obligation is placed on a Court by Article (i) the capacity of each person in respect of whom an applica- 11(2) to provide a child with an opportunity to be heard, subject tion is made to care for and to meets the needs of the child. only to the exception where this appears inappropriate having In L.C.W v KC [2019] IEHC 945, the Judge reviewed the regard to his or her age or degree of maturity”. case law in respect of relocation cases including EM. v AM More than 100 children have been kidnapped or abducted (Unreported High Court June 1992), which identified the between 2015 and 2019 by estranged family members or following criteria as being relevant: by strangers. In 2017, 36 applications for orders under the ■ which parent will provide the greater stability of lifestyle Convention for the return of the child from Ireland were made. for the child; During that year, 10 orders were made for the return of a child ■ professional advice tendered; and and six were made that a child could remain here. In eight ■ capacity for frequency of access arrangements by the cases a child was returned on consent, while 10 were allowed to non-custodial parent. remain on consent. In addition, the Judge stated the Court must have regard to The cases reflect modern Irish relationships. Applications the decision of the Court of Justice of the EU of October 2010, pertaining to child abduction included Poland, Latvia, Russia, in J McB v. L.E, case C-400/10PPU, where, referring to Article the United States, France and Spain. 7 of the Charter of Fundamental Rights, the Article must be read in such a manner so as to respect the obligation to take 82 Overview into consideration the child’s best interests and the fundamental right of the child to maintain on a regular basis personal and 8.1 In your view, what are the significant developments direct contact with both parents. in family law in your jurisdiction in the last two years? In U.V. v VU [2011] IEHC 519, the Judge stated that the fundamental constitutional and legal principal applicable is the The constitutional requirement of living apart for a period of children’s right to have decisions taken as to their welfare with four years prior to the institution of divorce proceedings has that welfare being the prime concern. That case also considered now been reduced to a period of two years. This recommenda- the English judgment of PAYNE v PAYNE (CA) [2001] Fam tion has now been implemented by virtue of the Family Law Act 243 and agreed there is no presumption created in favour of the 2019 and in particular S.3 of that Act. applicant parent or custodial parent. In addition, the provisions of the Children and Family In the Court of Appeal decision of SK. v AL [2019] IECA 177, Relationship Act 2015 under Part 2 and 3 relating to donor-as- the Judge stated relocation matters are an exercise in welfare sisted human reproduction procedures have recently come into assessment. force. This includes: (a) The right of donor-conceived people to access information 7.4 If the court is making a decision on a child moving about their genetic heritage. to a different part of the state/country, what factors are (b) A prohibition on anonymous donations. taken into account? (c) A provision for the establishment of a National Donor Conceived Person Register. Please see the answer to question 7.3.

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Further, the introduction of the Domestic Violence Bill 2017 has insisted on ebundles in matters in for hearing. It is antici- has consolidated the law on domestic violence, extended wider pated that the hybrid model of remote and physical hearings will protection to potential applicants and has introduced changes to continue after the COVID-19 crisis has passed. Court procedures to facilitate hearings, extend reliefs to include a prohibition on stalking and provide information about support 8.4 What are some of the areas of family law which you services for victims. It also includes protection for victims of think should be looked into in your jurisdiction? coercive control. The Law Society of Ireland published a report in April 2019 enti- 8.2 What impact, if any, has the COVID-19 pandemic tled “Divorce in Ireland: The Case for Reform”. The report was wide had on family law in your jurisdiction to date, and is reaching and recommended a set of principles for the determi- likely to have over the next 12 months? nation of financial relief to be developed, which would include a definition or development of a clear framework for “proper It has resulted in significant delays for ongoing cases and a lack provision”, which is absent to a large extent in Irish case law. of progress in the listing and progression of new cases. In addition, this report highlighted the need for a debate on the concept of a “clean break”, which does not currently exist in our 8.3 To what extent and how has the court process and jurisdiction. other dispute resolution methods for family law been In addition, whilst the general scheme of the proposed adapted in your jurisdiction in light of the COVID-19 Assisted Human Reproduction Bill 2017 was published, there pandemic (e.g. virtual hearings, remote access, has not been progress on the Bill, which addresses the regula- paperless processes)? Are any of these changes likely to tion of: remain after the COVID-19 crisis has passed? (a) Embryo donation. (b) Assisted human reproduction and research. The District Court continued to sit physically throughout the (c) Pre-implantation genetic diagnosis of embryos. pandemic, dealing with urgent matters, i.e. domestic violence (d) Posthumous assisted reproduction and embryo and stem cases and child protection matters. The Circuit Court and High cell research. Court recommenced sittings in early May and has had both (e) Surrogacy. remote and physical hearings since that date. The High Court

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Karen O’Leary is Senior Partner and leads Caldwell & Robinson’s Family Law practice. With extensive experience on all issues that may arise upon the breakdown of a relationship and family law, her specialist expertise covers both private and public law, and multiple jurisdictions. Qualified to practise in Northern Ireland, the Republic of Ireland, England, and Wales, Karen is regularly consulted by government and state agencies on legal matters from other jurisdictions. In 2011, she was invited to be a fellow of the International Academy of Family Lawyers (IAFL), an organisation of leading global family lawyers. She is also a regular speaker on family law matters and has addressed the Four Jurisdictions Family Law Conference on a number of occasions, and the European Family Justice Observatory, most recently speaking about the implications of Brexit on family law. She is a mediator and holds a CIArb Family (Finance) in arbitration. “A highly skilled advocate whose people skills and negotiating skills are impeccable.” She demonstrates considerable expertise in private family law cases, especially those with an international aspect, and one source notes that “her knowledge of childcare matters is unrivalled” – Chambers & Partners UK.

Caldwell & Robinson Tel: +353 1 6833 391 Suite 333, The Capel Building, Mary’s Abbey Email: [email protected] Dublin 7, D07 HX83 URL: www.caldwellrobinson.com Ireland

Geraldine Keehan is a Partner and Head of the Family and Child Law Practice in Dublin. She is tri-qualified in Ireland, England and Wales and Northern Ireland. She specialises in domestic and international private family law, including divorce and custody disputes. Geraldine acts for Guardians ad Litem and advises on the application of international law, particularly in relation to the movement of children between jurisdictions. Her work on the rights of children, including their right to identity, has seen her advise several organisations, including Barnardos, the children’s charity, and the Adoption Authority of Ireland. She also acts for Local Authorities in England and Wales on matters pertaining to Brussels II. Memberships ■ Law Society of Ireland. ■ Law Society of England and Wales. ■ Law Society of Northern Ireland. ■ Family Lawyers Association. ■ Irish Centre for European Law. ■ Law Society of Ireland Family and Child Law Committee.

Caldwell & Robinson Tel: +353 1 6833 391 Suite 333, The Capel Building, Mary’s Abbey Email: [email protected] Dublin 7, D07 HX83 URL: www.caldwellrobinson.com Ireland

Caldwell & Robinson is widely recognised to be one of Ireland’s premier family law practices, specialising in complex international cases involving relationship breakdown, children, surrogacy and adoption. The family law team consists of five lawyers, of whom three – Karen O’Leary, Geraldine Keehan and Emmett Maginn – are Partners. All three are tri-jurisdictionally qualified in Ireland, England and Northern Ireland. In addition, the corporate/commercial practice area of the firm specialises in servicing owner-managed Irish businesses trading internationally, and international businesses trading in Ireland. It is headed by Partner Philip Gilliland, who is also tri-jurisdictionally qualified in Ireland, England and Northern Ireland. Finally, the firm also offers a private client service dealing with estate planning, probate and residential property. www.caldwellrobinson.com

Family Law 2021 92 Chapter 13 Isle of Man of Isle Isle of Man

James Quinn

Quinn Legal Amy Crellin

12 Divorce 1.4 What is the procedure and timescale for a divorce?

1.1 What are the grounds of jurisdiction for divorce The procedure for the divorce starts with a divorce applica- proceedings? For example, residence, nationality, tion, which needs to be fully completed by the applicant. This domicile, etc.? asks primary questions about the parties and the marriage. The marriage certificate or a certified copy of the marriage certif- You need to be domiciled in the Isle of Man or you need to have icate is required to be provided with the application (this is been habitually resident in the Isle of Man for a period of 12 returned by the Court at a later stage). The most important part months prior to the divorce application being made. of the divorce application is the details about the ground for Domicile is an established principle of the party intending to divorce. If the application is based on the other party’s unrea- live here permanently or having permanent connection to the sonable behaviour, it is important this is clear, accurate and true. Island. If the parties fully engage in a timely manner with the Court You do not need to have been married in the Isle of Man in and in such a way as to facilitate the divorce application by order to get divorced here but you do need to meet the residence returning the forms served on them in the required manner, i.e. criteria. fully completed, dated and signed, and without challenge, we can usually reach the provisional stage of divorce (more commonly referred to as the decree nisi in the UK) within three months from 1.2 What are the grounds for a divorce? For example, the initial application being submitted. If all matters regarding is there a required period of separation, can the parties children and finances are agreed upon it would not be unrea- have an uncontested divorce? sonable for the divorce to be fully completed within six to nine months. There is one ultimate ground for divorce which is that the rela- If matters are contested, this can take much longer. In cases tionship has irretrievably broken down. In order to prove this, where the parties do not agree about the financial aspects of the there are five different grounds that can be pleaded by the appli- divorce then this timescale can range from 12–24 months. cant; these are as follows: (a) that the other party has committed adultery; (b) that the other party has behaved in a way that the applicant 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. finds to be intolerable; (c) that the parties have been separated for a period of two years and both parties consent to the divorce being made; In principle, yes, the applicant can apply for the final order of (d) that the other party has deserted the applicant and a period divorce six weeks after the pronouncement of the provisional of two years has lapsed; and order. The respondent, however, needs to wait three months (e) that the parties have been separated for a period of five after the pronouncement of the provisional order in order to years and the other does not need to consent to this. apply for the same. There are some risks in applying for the final order of divorce before the financial aspects have been resolved. For example, 1.3 In the case of an uncontested divorce, do the if there are various different assets or complex assets then if the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? parties are divorced the other party might lose a benefit of the asset should they no longer be treated as the spouse of a party. Care needs to be taken with this. The application process for divorce under any of the above However, the legal principle is that the final order should be grounds can be done without the need for a hearing or a Court pronounced unless there are special circumstances that are case appointment requiring the parties’ attendance. The Court will specific. administratively deal with the divorce paperwork. It is not There is nothing preventing the final order of divorce being possible in this jurisdiction to have a private divorce without applied for if there are outstanding issues regarding contact the Court’s involvement. The Court is needed in order to legally arrangements. dissolve the marriage. It is important this is achieved through the Court process.

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1.6 Are foreign divorces recognised in your in principle does not have a proprietary effect. However, upon jurisdiction? If so, what are the procedural requirements, divorce the Courts are given a very wide discretion to make a if any? wide range of orders (referred to as “ancillary relief “) including a reallocation or even sale of property, putting assets on trust, Yes – Section 78 of The Matrimonial Proceedings Act 2003 lump-sum payments, periodical payments, orders regarding (“MPA 2003”) provides that applications for financial relief pensions, etc. (Part 2 and Section 26 Matrimonial Proceedings after foreign divorce where (a) a marriage has been dissolved Act 1973). or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in a foreign 2.3 How does the court decide what financial orders to country, and (b) the divorce, annulment or legal separation is make? What factors are taken into account? entitled to be recognised as valid in the Island, either party to the marriage may apply to the High Court for an order for finan- Section 32 of the MPA 2003 lists the factors the Court is cial relief. Section 90 provides that “foreign country” means a required to take into consideration when assisting to make any country or territory outside the British Islands. financial orders: (1) All the circumstances of the case, the first consideration 1.7 Does your jurisdiction allow separation or nullity being given to the welfare while a minor of any child of the proceedings? family who has not attained the age of 18. (2) As regards the exercise of its powers, the Court will Section 11 of the MPA 2003 makes provision for an application consider: to be made for the annulment of marriage where the marriage (a) the income, earning capacity, property and other can be shown not to be a valid marriage: where it is evidenced financial resources the parties have or are likely to to be void; where either party is under 16; or in other circum- have in the foreseeable future, including, in the case of stances such as intermarriage, other current marriage existing or earning capacity, any increase in that capacity; polygamous marriage. (b) the financial needs, obligations and responsibilities Section 17 provides for (a rarely used) application for a sepa- which each of the parties has or is likely to have in the ration order and, when made, it shall no longer be obligatory for foreseeable future; the applicant to reside with the respondent. The grounds for (c) the standard of living enjoyed by the family before the such an application are the same as that used to ground an appli- breakdown of the marriage; cation for divorce. (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties 1.8 Can divorce proceedings be stayed if there are to the marriage; proceedings in another country? (f) the contributions which each of the parties have made or are likely in the foreseeable future to make to the Yes; Section 21(6), Schedule 1 of the MPA 2003, has effect in welfare of the family, including any contribution by respect of cases in which matrimonial proceedings in the Island looking after the home or caring for the family; and are to be, or may be, stayed by the Court where there are concur- (g) the conduct of each of the parties, if that conduct is rent proceedings elsewhere (generally and subject to being such that it would, in the opinion of the Court, be listed) in respect of the same marriage. inequitable to disregard it.

22 Finances on Divorce 2.4 Is the position different between capital and maintenance orders? If so, how? 2.1 What financial orders can the court make on divorce? The provisions as set out in Section 32 as above are taken into account by the Court. Capital and Maintenance Orders imple- Part 2, Section 26 of the MPA 2003 makes provision for certain ment what is termed as the sharing principle, whilst mainte- financial orders. The following indicates the kinds of order that nance is assessed mainly as to the evaluation of needs. The may be made: Court will also consider, as to the effect of the termination of a (1) Provision for a Periodical Payments Order for a child or Maintenance Order, if it is or is not appropriate to order that no spouse. maintenance is the correct outcome, i.e. called a “clean break”. (2) Secured Periodical Payments Order for a spouse or a child. (3) Order for payment of a lump sum. 2.5 If a couple agrees on financial matters, do they (4) Order for Provision of Transfer of Property. need to have a court order and attend court? (5) Order for a settlement, or variation of a settlement of property or property interests. (6) Order for the Sale of Property. If parties agree on financial matters, they can administratively (7) Order for Pension Sharing. agree the financial details in a proposed Consent Order for the Court’s consideration. This is a drafted order that is submitted to the Court, without the need for appearances. The agreement 2.2 Do matrimonial regimes exist and do they need to is then, when agreed by the Court, sealed as a Court Order and is be addressed by the court on divorce? Is there a default fully binding on both parties. Even where parties agree matters matrimonial regime? between themselves, they ought to be advised to have that agreement reflected in a Court Order so that it is clearly binding and The Isle of Man does not have a matrimonial property regime enforceable by reference to it being a Court Order. as such; there is no community of property and thus marriage

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2.6 How long can spousal maintenance orders last and 32 Marital Agreements are such orders commonplace?

3.1 Are marital agreements (pre- and post-marriage) Orders for spousal maintenance are often made especially where enforceable? Is the position the same if the agreement is there are children of the family and/or there is a material differ- a foreign agreement? ence in the parties’ incomes and earnings. Such orders can be made for any duration including the joint lives of the parties. Whilst such agreements are not automatically enforceable, the These orders cease upon remarriage, unlike cohabitation which Courts can and will give regard to such. The parties cannot oust does not trigger cessation but is, and can be, a relevant factor. the Court’s jurisdiction by agreement. The Courts will scrutinise issues such as bargaining power, 2.7 Is the concept of matrimonial property recognised duress, full financial disclosure, the provision and timing of in your jurisdiction? legal advice and other factors. Children remain of primary focus as to their needs being fully considered and being appropriately Whilst there is no statutory or other prescribed concept, the provided for. Overall, the outcome will need to be assessed as Courts, when considering applications concerning property, being fair. can treat marital and non-marital property, or indeed inherited property, differently and make orders when viewed from such 3.2 What are the procedural requirements for a marital perspective. Non-marital property can sometimes be excluded agreement to be enforceable on divorce? from consideration in certain circumstances, particularly where the needs of the parties do not require recourse to be made to and of it. No formal requirements currently exist and the agreement is not automatically enforceable and will be considered by the Courts as to its enforceability. 2.8 Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than 3.3 Can marital agreements cover a spouse’s the law of the jurisdiction? financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election No; in the Isle of Man, foreign law is not applied in the family of the matrimonial property regime? Can they deal Courts. with financial claims regarding children, e.g. child maintenance)?

2.9 How is the matrimonial home treated on divorce? Yes, agreements can expressly deal with income and capital aspects and they can also deal with financial claims regarding Whilst all financial resources will be taken into account, whether children. However, see questions 3.1 and 3.2. The needs and in joint names or otherwise, usually the matrimonial home is the welfare of any child of the family (who has not yet attained treated as matrimonial property irrespective of the route to it the age of 18) shall remain the Court’s first consideration. being acquired, i.e. bought by one party only. 42 Cohabitation and the Unmarried Family 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the The Isle of Man Courts do recognise trusts in principle and a grounds to make a financial claim? number of matrimonial cases have had to deal with trusts and make orders that take the resources from trusts into account. Cohabitants generally do not have any specific rights to make a statutory or other claim against the other, except for mainte- 2.11 Can financial claims be made following a foreign nance for children. Any other claims would normally have to divorce in your jurisdiction? If so, what are the grounds? establish some interest in property.

Yes, Part 4, Section 78 of the MPA 2003, provides for such 4.2 What financial orders can a cohabitant obtain? claims where the criteria is met for such and are subject to the leave of the Court being obtained in the Isle of Man. No appli- There are very limited provisions currently existing and such cation may be made if either party has remarried, but generally, may be dependent upon a co-ownership of real estate under the if a foreign divorce has been made, relief may be applied for. Partition Act 1931 or by making a chancery claim for a declaration of an interest. 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)?

By negotiation between the parties or mediation which is readily available, the parties may agree a settlement or make an appli- Cohabitants can either be civil partners as a same-sex couple or cation to Court. a heterosexual couple and as such are afforded the same protec- Mediation is readily available and is actively encouraged by tion in law as married couples. the Courts as a method of dispute resolution in which to agree a financial settlement.

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4.4 Are same-sex couples permitted to marry or enter 5.5 Can a child or adult make a financial claim directly other formal relationships in your jurisdiction? against their parents? If so, what factors will the court take into account? Yes, the Marriage and Civil Partnership Amendment Act that took effect from 22 July 2016 gave effect to this. Potentially, yes, in limited circumstances where a child is over 16 and in education full time. 52 Child Maintenance Section 2 of Schedule 1 of the CYPA 2001 provides that the Court may make an order if, on an application by a person who has reached the age of 18, it appears to the Court: 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? (a) that the applicant is, will be or would be receiving instruction at any educational establishment or undergoing instruction for a trade, profession or vocation, whether or Financial claims can be made both in terms of capital and main- not while in gainful employment; or tenance. Schedule 1 of the Children and Young Persons Act (b) that there are special circumstances which justify the (2001) (“CYPA 2001”) provides for the financial provision for making of such an order. children. The orders which the Court may make under this In deciding whether or not to make an order, the Court shall paragraph are as follows: have regard to all the circumstances, including the income, (a) an order requiring either or both parents of a child to make earning capacity, property and other financial resources which to the applicant for the benefit of the child, or to the child the child’s father and mother or the applicant for the order has himself, such periodical payments, for such term, as may or is likely to have in the foreseeable future; and the finan- be specified in the order; cial needs, obligations and responsibilities which each of those (b) an order requiring either or both parents of a child to persons has or is likely to have in the foreseeable future. secure to the applicant for the benefit of the child, or to the child himself, such periodical payments, for such term, 62 Children – Parental Responsibility and as may be so specified; (c) an order requiring either or both parents of a child to pay Custody to the applicant for the benefit of the child, or to the child himself, such lump sum, as may be so specified; 6.1 Explain what rights of custody both parents have in (d) an order requiring a settlement to be made for the benefit your jurisdiction, whether (a) married, or (b) unmarried? of the child, and to the satisfaction of the Court, of property to which either parent is entitled (either in possession From November 2013, where an unmarried birth father is or in reversion) and which is specified in the order; and named on a birth certificate, he is vested with parental responsi- (e) an order requiring either or both parents of a child to bility. Similarly, the birth parents can enter an agreement to give transfer to the applicant for the benefit of the child, or to effect to parental responsibility or a Court can order it. Married the child himself, property to which the parent is, or the parents always have parental responsibility and this remains parents are, entitled (either in possession or reversion) and following any divorce. which is specified in the order.

6.2 At what age are children considered adults by the 5.2 How is child maintenance calculated and is it court? administered by the court or an agency? Children are considered adults by the Court from 18 years of There is no formal mechanism for such in the Isle of Man. The age. Court has a wide discretion to make financial orders and will consider all the available resources and consider any current 6.3 What is the duration of children orders (up to the recommendations issued by the Department of Health and age of 16 or 18 or otherwise)? Social Care.

Usually until the age of 16 but they can last until the child is 18 5.3 For how long is a parent required to pay child years of age. maintenance or provide financial support for their children? For example, can a child seek maintenance during university? 6.4 What orders can the court make in relation to children? Does the court automatically make orders in relation to child arrangements in the event of divorce? Usually until the child reaches 18 or concludes secondary education but it may be longer and generally be referable to a first degree. The Court can make Residence or Shared Residence Orders, Contact Orders, make specific directions/orders for, say, schooling or change of name, or make Orders to seek to prevent 5.4 Can capital or property orders be made to or for the certain steps happening, i.e. prohibiting travel. benefit of a child?

Yes, it is possible, so as to provide, in particular, housing for a 6.5 What factors does the court consider when making orders in relation to children? child and for the period when the child is a dependant.

Welfare is the statutory consideration which is paramount. The Court will in particular have regard to a number of listed factors,

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including the wishes and feelings of the child, where ascertain- Such Orders are then served upon various people, including able, education needs, the effect of the change of any circum- the police, the airport, the sea terminal and the passport offices stances, the child’s age and sex or other characteristics, the here in the Isle of Man, and also in the UK. capability of parents to meet the child’s needs and the available If the other parent then attempts to remove the children, then orders of the Court. the aforementioned parties will be able to easily identify the children and prevent them from being taken away. If the other parent has already taken the children to another 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? jurisdiction with this intending to be permanent, then an application for the child to be returned pursuant to the Hague Convention, to which the Isle of Man is a party, will be made. Unless the parents with parental responsibility agree it, a parent with a Residence Order cannot take a child away for a period of in excess of one month. 7.2 Can the custodial parent move to another part of the state/country without the other parent’s consent?

6.7 Is there a presumption of an equal division of time between separating or divorcing parents? The Isle of Man is not a very big jurisdiction in comparison to the UK, so a parent is not required to obtain the consent of the other parent before moving to a new house. However, if There is no prescribed division of time, but it is expected that a the moving parent intends to change the children’s school or child shall spend time with both parents. doctors, etc. because of the house move, then the permission of both parents who have parental responsibility is required. 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account?

Where both parents have parental responsibility, yes this is the The primary factors relate to contact, both direct and indirect, case. with the “to be absent” parent in light of all of the past and envisaged circumstances and the child’s interests as a whole. 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into account? Often, a Court Welfare Report is requested and provided to the Court. The Court/judge can see a child but this rarely happens. In the Isle of Man, this is not chiefly in issue, but sometimes schooling or location comes into consideration and will be 6.10 Is there separate representation for children in your assessed in the light of all circumstances then prevailing and the jurisdiction and, if so, who would represent them, e.g. a interests of the child. lawyer?

7.5 In practice, how rare is it for the custodial parent to Yes, this can happen, but rarely so in private law proceedings. be allowed to relocate internationally/interstate?

6.11 Do any other adults have a say in relation to the It is not particularly rare and may be ordered by the Court in arrangements for the children? E.g. step-parents or appropriate circumstances. grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to children? 7.6 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Other relevant adults, such as grandparents, can be spoken to by Hague Convention? the Court Welfare Officer as to their views, but the recommendations are ultimately those of the Welfare Officer. The welfare The Isle of Man can apply the Hague Convention on the civil office will attempt to see if an agreement can be reached at a aspects of International Child Abduction. separate mediation. The Attorney General of the Isle of Man is the designated Central Authority and is responsible for administering Hague 72 Children – International Aspects Convention issues. The Attorney General’s Chambers process applications and provide advice to parents, advocates and others 7.1 Can the custodial parent move to another state/ on steps they may take to recover children who have been country without the other parent’s consent? wrongfully removed to and from the Isle of Man.

If both parents have parental responsibility for the children, 82 Overview then one cannot make a unilateral decision to relocate with the children to another jurisdiction without the other parent’s 8.1 In your view, what are the significant developments express consent. If it is suspected that the other parent is going in family law in your jurisdiction in the last two years? to move with the children then it is important that an application is made to the Courts for an emergency prohibited steps A significant development in the last two years has been the application, often on a without-notice basis. legalisation of same-sex marriage.

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8.2 What impact, if any, has the COVID-19 pandemic 8.3 To what extent and how has the court process and had on family law in your jurisdiction to date, and is other dispute resolution methods for family law been likely to have over the next 12 months? adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to In light of the restrictions currently in place due to the remain after the COVID-19 crisis has passed? COVID-19 pandemic, the Court is encouraging all parties to consider whether it is absolutely necessary to file new a claim or application. In order to help reduce the number of matters The Court is currently holding some virtual hearings and is coming before the Court, the Court is encouraging all parties, adopting a flexible approach to all matters. It is too early to where possible, to use their best endeavours to agree a construc- judge whether there will be any long-term changes. tive and sensible approach. The increased use of technology is encouraged where possible 8.4 What are some of the areas of family law which you in all family matters, including appeals. Matters will be dealt think should be looked into in your jurisdiction? with on a case-by-case basis with the Court looking favourably on parties seeking matters to be stayed. The Court has tempo- The following areas should be looked into: rarily waived all fees for the filing of matters that can be dealt ■ No-fault divorce. with by agreement between the parties (a Consent Order). ■ Law for cohabiting parties to deal particularly with The Isle of Man Court website advises business continuity property. plans are in place and are under constant review to ensure an effective response can be implemented and that vital work can continue in the current extraordinary circumstances. The latest central Isle of Man Government policy and advice will always be followed. Within that context, matters are being considered on a day-to-day and case-by-case basis.

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James Quinn is head of the Family Team at Quinn Legal. His main practice areas concern advising in respect of divorce, ﬁnance and children’s issues, usually in disputes arising out of a divorce or relationship breakup. James was called to the Manx Bar in 1998 and has acted in a number of major civil and other trials throughout the last 20+ years. He has worked on particularly complex, high-net-worth ﬁnancial relief divorce cases, and has considerable experience of appearing at all levels.

Quinn Legal Tel: +44 1624 696 543 30 Ridgeway Street Email: [email protected] Douglas, IM1 1EL URL: www.quinnlegal.im Isle of Man

Amy Crellin recently joined the Family Team at Quinn Legal. Claire was called to the Manx Bar in 2019 and handling all areas of family litigation. This includes assisting on complex divorce applications surrounding issues of jurisdiction, sensitive contact and residence applications regarding children, and child maintenance matters. Amy also has expertise in making emergency court applications which have included domestic violence injunctions and prohibited steps applications to prevent the removal of children from the jurisdiction of the Isle of Man.

Quinn Legal Tel: +44 1624 665 522 30 Ridgeway Street Email: [email protected] Douglas, IM1 1EL URL: www.quinnlegal.im Isle of Man

Quinn Legal is one of the leading Isle of Man law ﬁrms, with a highly regarded expert Family Team. Headed by James Quinn, one of our most experienced advocates with over 20 years of experience in all areas of litigation including family law, the team covers all areas of family work, from pre- and post-nuptial agreements, divorce, adoption, contact and residence applications, to child maintenance and cross-jurisdictional issues. We stand out as approachable, proactive and empathetic lawyers who are committed to and care for our clients, priding ourselves on our service. Driven by a set of core values we are clear in our identity and passionate about making a difference for people. www.quinnlegal.im

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Italy Italy

Vardags Maria Fiorito

12 Divorce Divorce can be contested in case of lack of one of the grounds. More often, this is the case if the other spouse shows that the required period of separation has not lapsed or that, despite 1.1 What are the grounds of jurisdiction for divorce having obtained a separation decree, the spouses have gone back proceedings? For example, residence, nationality, domicile, etc.? to living together.

The Italian rules of international law provide that Italian 1.3 In the case of an uncontested divorce, do the Courts retain jurisdiction for separation/divorce/annulment of parties need to attend court and is it possible to have a marriage in the following circumstances: “private” divorce, i.e. without any court involvement? ■ one of the parties is of Italian nationality; and/or ■ the marriage has been celebrated in Italy. If the divorce is not contested, the parties may obtain a divorce However, within the EU Member States, Regulation 2201/2003 by simply attending a court hearing and confirming they are applies, and the main ground to determine jurisdiction is the willing to divorce. “habitual residence” of the spouses. In particular, the Italian However, it is also possible for the parties to avoid the court Courts retain jurisdiction when: process altogether in circumstances of an uncontested divorce. ■ the spouses are habitually resident in Italy or the spouses For instance, since 2014, the parties can now opt for “negozi- were last habitually resident, insofar as one of them still azione assistita”, which is a form of alternative dispute resolution resides there, or the respondent is habitually resident; (ADR). Negoziazione assistita allows the parties to reach an agree- ■ in the event of a joint application, one of the spouses is ment as to their divorce and any associated matters, without habitually resident; the need for a hearing. This agreement must be signed by the ■ the applicant is habitually resident if he/she resided there parties and their respective lawyers. Where there are no minor for at least a year immediately before the application was children involved, and there are no provisions for a lump sum or made; or a property transfer, the parties can also file for a divorce without ■ the applicant is habitually resident if he/she resided there the assistance of any lawyers, by way of submitting their request for at least six months immediately before the application before the Civil Registrar in their town hall. was made and is of Italian nationality. The Italian Courts will also retain jurisdiction if both spouses are of Italian nationality. 1.4 What is the procedure and timescale for a divorce?

1.2 What are the grounds for a divorce? For example, There are three separation/divorce procedures: is there a required period of separation, can the parties (1) judicial procedure by mutual consent: the parties draft have an uncontested divorce? a written agreement, which is filed with the court. A hearing is listed and the spouses are required to attend in There are two grounds for a divorce: person in order to confirm that they are willing to obtain a (a) that the marriage has irretrievably broken down, so that separation/divorce decree. The court endorses the agree- the communion of life between the spouses cannot be ment reached by the parties. It can take up to three to six reinstated; and months to obtain an endorsement order; (b) the existence of one of the following circumstances: one of (2) judicial procedure: the applicant files their petition with the spouses has been sentenced for certain serious crim- the court. A hearing is listed where an interim order is inal offences; one of the spouses is a foreign citizen and made to determine financial and/or children arrange- has obtained a divorce or has married again abroad; the ments. A number of subsequent hearings may then follow, marriage has not been consummated; and the spouses are in order to ascertain the parties’ financial and personal legally separated. circumstances before a final decision is made. It could take Separation can be obtained without need for a specific reason. between one and four years, depending on the complexity Divorce proceedings can be filed after six months in case of of the issues at stake; and consensual separation, or after 12 months in case of judicial (3) negoziazione assistita: see question 1.3 above. This proce- separation. dure is faster than the judicial procedures and could take between three and six weeks.

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1.5 Can a divorce be finalised without resolving other Any lump sum or property transfer can only be the subject associated matters? For example, children and finances. of an agreement between the parties themselves, as the Italian Court does not have the power to make such an order. If the Italian Court retains jurisdiction over associated matters, such as the finances and children, then the Italian Judge is 2.2 Do matrimonial regimes exist and do they need to required to make a decision over such matters as well. be addressed by the court on divorce? Is there a default However, if the divorce is uncontested, the parties may obtain matrimonial regime? a divorce decree beforehand, whilst the proceedings continue on any associated matters. There are three main matrimonial regimes to consider: the community of assets regime (which is a default regime, where no 1.6 Are foreign divorces recognised in your other choice is made); the separation of assets regime; and the jurisdiction? If so, what are the procedural requirements, patrimonial fund regime. if any? The community of assets provides that any assets acquired by the parties after the marriage are intended to be held jointly between the parties. Exemptions are assets received by inher- Foreign divorces are automatically recognised by the Italian itance, donation and personal items. Courts provided that they meet the requirements set out by The separation of assets provides that all the assets owned Italian international law. These requirements are set out below: and acquired by the spouses are retained in each spouse’s respec- ■ the divorce is granted by a Judge who has jurisdiction; tive name. ■ the other spouse has been duly served and is aware of the The patrimonial fund is not particularly common and proceedings; provides that only specific assets are held in a fund for the exclu- ■ s it i a final judgment and is not contrary to any other Italian sive needs of the family. final judgment; ■ there are no other ongoing proceedings pending on the same subject; and 2.3 How does the court decide what financial orders to ■ it is not contrary to the public order. make? What factors are taken into account? In order to obtain formal recognition of a foreign divorce, you have to register the foreign judgment in the public register held The Italian Court can make a spousal maintenance order or in the relevant town hall. expressly exclude any contribution. For separation proceedings: the Judge takes into account the spouses’ earning capacity, their finances, their living expenses and the existence of a dispropor- 1.7 Does your jurisdiction allow separation or nullity proceedings? tion in their respective income. If a spouse is considered to be guilty for the separation (as in the case of adultery), his/her right to receive financial support from the other is lost irretrievably, For separation proceedings, see the answer to question 1.2 above. regardless of the existence of any other circumstances. Nullity proceedings, whereby a marriage may be declared null For divorce proceedings: the Judge needs to take into account or voidable, are also available. several factors, such as the financial resources of the parties, A marriage can be nullified if it lacks the legal formalities their earning capacity, their respective contribution given required in order to make a marriage legally binding. These during the marriage, the standard of living during the marriage, formalities include having legal capacity to enter into the the duration of the marriage and the age of the parties. marriage, not already being party to another marriage, not being In both sets of proceedings, the parties can provide evidence relatives, and not having been charged with the murder of the in support of each factor listed above (through witnesses, expert other spouse’s previous husband/wife. evidence, written documents, discovery, etc.). A marriage is voidable in cases where there is a lack of consent (when consent was given under duress, threat or violence), in case of a mistake regarding the identity of the other spouse or 2.4 Is the position different between capital and maintenance orders? If so, how? his/her main qualities, and in cases of simulated marriage.

The Italian Judge has no power to make any capital orders 1.8 Can divorce proceedings be stayed if there are within separation/divorce proceedings. Any capital issue may proceedings in another country? be resolved by way of separate civil proceedings.

Yes, divorce proceedings must be stayed pursuant to the EU Regulation if divorce proceedings are ongoing in another 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? Member State which was first seized. If divorce proceedings are ongoing in a non-EU Member State, the Italian Judge may stay the proceedings if he believes it appro- In case of agreement between the spouses, the terms of the priate, unless there is a specific Convention with that country. agreement can be endorsed in a court order by way of judicial procedure. 22 Finances on Divorce Alternatively, it can be approved and registered by way of negoziazione assistita. See the answer to question 1.4.

2.1 What financial orders can the court make on divorce? 2.6 How long can spousal maintenance orders last and are such orders commonplace? Both in separation and divorce proceedings, the Italian Court can only make a spousal maintenance order, by way of a peri- Spousal separation maintenance orders last until they are odic payment order. replaced by a divorce maintenance order.

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Divorce maintenance orders are intended for the joint lives 2.12 What methods of dispute resolution are available of the parties. to resolve financial settlement on divorce? E.g. court, However, when the personal circumstances of the spouses/ mediation, arbitration? ex-spouses change, both separation and divorce maintenance orders can be subjected to variation proceedings. Financial settlement on separation/divorce may be resolved: ■ by judicial proceedings, either consensual or by litigation; 2.7 Is the concept of matrimonial property recognised ■ by negoziazione assistita; see the answer to question 1.3; or in your jurisdiction? ■ by mediation, after which the agreement shall be endorsed in a court order. Matrimonial property is defined as the assets jointly held by the spouses by way of the communion of assets regime. 32 Marital Agreements

3.1 Are marital agreements (pre- and post-marriage) 2.8 Do the courts treat foreign nationals differently on enforceable? Is the position the same if the agreement is divorce? If so, what are the rules on applicable law? Can a foreign agreement? the court make orders applying foreign law rather than the law of the jurisdiction? The sole agreements regulated by Italian law are matrimonial regimes; see the answer to question 2.2. Foreign nationals are not treated differently by the law on divorce. Italian law does not regulate pre- or post-marital agreements The applicable law on separation and divorce proceedings is iden- containing financial provisions in case of a separation or a tified according to the international law rules, EU Regulations divorce. In the past, the Italian Courts have found pre-nup- and International Conventions. Therefore, the Italian Court can tial agreements to be null and void, as they were considered to make orders applying the law of a different State and, in particular, be against the public order. Nevertheless, since 2012 there has of a Member State pursuant to EU Regulation 1259/2010. been increasing case law indicating that marital agreements are valid and enforceable. In many cases, those agreements were 2.9 How is the matrimonial home treated on divorce? foreign agreements. At present, there is a bill lying in the Italian Parliament, which is aimed to introduce a specific regulation for marital agree- When there are children of the marriage, the former matrimonial ments (pre- and post-nuptial agreements). home is temporarily assigned to the parent who is the primary carer of the children that remain living with them, regardless of its ownership. The assignation lasts until the youngest child 3.2 What are the procedural requirements for a marital of the marriage lives with the parent in the family home; there- agreement to be enforceable on divorce? after the use of the property is regulated by civil law rules. The assignment is enforceable against third parties. Marital agreements electing a matrimonial regime can be If there are no children of the marriage, the former matrimo- made during the celebration of the marriage, or thereafter in nial home is retained by the spouse who is the legal owner of the writing before a public Notary and two witnesses. A matrimo- property. If the property is held in joint names, or if the spouses nial regime can always be varied after the marriage, in writing, are under the communion of assets regime and they do not reach before a public Notary and two witnesses. an agreement, civil proceedings need to be filed in order to sever For all other marital agreements (pre- and post-nuptial agree- the ownership of the property. ments), it is more likely that they will be held by the Italian Court – and taken into account in a financial settlement – in the following circumstances: 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? ■ if the separation or divorce are not the subject matter of the agreement itself, but only a condition precedent for a financial settlement (for example, “should we divorce in the Trusts are recognised in Italy by the 1985 Hague Convention and future, the property X shall be transferred to the wife”); and entered into force in 1992, although the Italian jurisdiction does ■ if they do not deal with any provisions regarding the not have a specific trust law. Nevertheless, trusts are quite popular spousal maintenance (i.e. to exclude this right or to pre-de- in Italy and they are regulated by foreign laws chosen by the settlor termine its amount). within jurisdictions that specifically admit and regulate trusts.

3.3 Can marital agreements cover a spouse’s 2.11 Can financial claims be made following a foreign financial claims on divorce, e.g. for maintenance divorce in your jurisdiction? If so, what are the grounds? or compensation, or are they limited to the election of the matrimonial property regime? Can they deal with financial claims regarding children, e.g. child Financial orders made under a different jurisdiction may be maintenance)? revised by the Italian Courts through variation proceedings. In order to do so, the Italian Court must: Italian law provides that only the election of matrimonial regime ■ have jurisdiction over the parties; and is available to the spouses; see the answer to question 3.1. ■ the parties’ financial and personal circumstances must have Agreements aimed to set a financial settlement in case of sepa- significantly changed since the financial order was made. ration or divorce may be considered null and void, depending on the circumstances of the case and how the agreement is drafted; see the answers to questions 3.1 and 3.2. Similarly, agreements that deal with financial claims for children may be considered null and void.

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42 Cohabitation and the Unmarried Family 52 Child Maintenance

4.1 Do cohabitants, who do not have children, have 5.1 What financial claims are available to parents on financial claims if the couple separate? What are the behalf of children within or outside of marriage? grounds to make a financial claim? Financial claims include: Cohabitants without children do not have any financial claims. ■ maintenance orders (by way of a monthly payment to However, since 2016, cohabitants – either heterosexual or the other parent and the contribution to the children’s same-sex couples – can register their “cohabitation” in the public expenses, such as school fees, medical expenses, etc.); and civil register. This implies, amongst other rights (see the answer ■ the assignation of the former matrimonial/family home to to question 4.3), that in case of termination of their relation- the primary carer of the children; see the answer to ques- ship, the financially weaker cohabitant may only in exceptional tion 2.9. circumstances (such as being in need and unable to provide to his/her own maintenance) receive a small contribution from the 5.2 How is child maintenance calculated and is it other. This contribution would only be for a limited period, administered by the court or an agency? proportionate to the length of their cohabitation. Cohabitants are also free to enter into a “cohabitation agreement”, which may regulate their relationship, their finances and Child maintenance is determined by the Judge, taking into any financial claim in case of termination of their cohabitation. account: ■ both parents’ financial resources; ■ the children’s needs; 4.2 What financial orders can a cohabitant obtain? ■ the standard of living of the family; ■ the time spent by the children with each parent; and See the answer to question 4.1. ■ the care provided to the children by each parent.

4.3 Is there a formal partnership status for cohabitants 5.3 For how long is a parent required to pay child (for example, civil partnerships, PACS)? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? Since 2016, cohabitants can register their relationship by way of a self-declaration before a Civil Registrar. Once their cohabitation is registered, they can obtain a few rights, which are similar The duty to contribute to child maintenance lasts until each to those recognised for married couples. These rights include child becomes financially independent. However, if a child has the following: a temporary job, then the parent may still need to contribute, ■ the right to visit the partner if imprisoned or hospitalised; depending on the circumstances of the case. Similarly, chil- ■ the right to be named as the personal representative of the dren’s support also continues whilst a child is at university. other partner if they lack legal capacity; ■ the right to remain living in the partner’s house, for a 5.4 Can capital or property orders be made to or for the period of up to two years, in circumstances of the part- benefit of a child? ner’s death; and ■ the right to damages against third parties, in circum- No capital or property orders are available to the parents, unless stances of the partner’s death. the parents reach an agreement, which is endorsed in a court order. 4.4 Are same-sex couples permitted to marry or enter Should a parent intend to transfer a property to a minor child, other formal relationships in your jurisdiction? this may be done with the authorisation of the juvenile court.

Yes, since 2016, same-sex couples have two options available: 5.5 Can a child or adult make a financial claim directly ■ to register their cohabitation. See the answers to questions against their parents? If so, what factors will the court 4.1–4.3; and take into account? ■ to enter into a “civil union” (unione civile) by way of a registration before a Civil Registrar and two witnesses. With a Only children aged 18 or over can make a financial claim civil union, same-sex couples obtain the same rights and directly against their parents. The factors taken into account are duties. Their rights are similar to those of a married couple the same as those considered for a claim made on their behalf and the duties include the duty to provide material and by the other parent. spiritual assistance, the duty of cohabitation and the duty to contribute to the family’s needs. No duty to fidelity exists. 62 Children – Parental Responsibility and Formal termination of the civil union is permitted. Financial claims are also available, comparable to those available to Custody married couples. 6.1 Explain what rights of custody both parents have in your jurisdiction, whether (a) married, or (b) unmarried?

Italian law makes no distinction between children of a married or unmarried couple.

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The general rule is that parents share parental responsibility. The most common division of time provides that children live This implies that all the main decisions about the children with one of the parents (usually the mother) in the family home (education, health, religion, relocation, etc.) need to be agreed and the other parent (usually the father) takes the children every between the parents. Exclusive parental responsibility on one other weekend, plus one or two days a week. However, different parent is provided only in exceptional circumstances. arrangements are also frequently available, depending on the circumstances of each case. 6.2 At what age are children considered adults by the court? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? Children who have reached 18 years old.

There is no such distinction between married and unmarried 6.3 What is the duration of children orders (up to the parents in terms of court orders on children arrangements. age of 16 or 18 or otherwise)?

6.9 Is a welfare report prepared by an independent Child arrangements orders last until the children reach the adult professional or is the decision taken by the Judge alone? age (i.e. 18 years), whilst financial orders for the benefit of the If so, does the child meet the Judge? children last until the children become financially independent. Usually the Judge alone takes the decision, unless the Judge 6.4 What orders can the court make in relation to considers it appropriate to appoint an expert to provide a welfare children? Does the court automatically make orders in report. This often happens where one of the parents alleges the relation to child arrangements in the event of divorce? incapacity/inability of the other to take care of the children or if the children show any psychological or behavioural problems. The court can make the following child arrangement orders: ■ determine the custody of the children (see the answer to 6.10 Is there separate representation for children in your question 6.1); jurisdiction and, if so, who would represent them, e.g. a ■ decide which parent the children shall live with in the lawyer? family home; and ■ schedule contact arrangements for the parent not living Italian law does not require separate representation for the chil- with the children. dren. The parents act on behalf of their children, unless the child The power of the court to make orders in relation to child is of the age of 18 or over and intends to make a claim on their arrangements is always automatic in separation/divorce proceed- own. If there is a conflict of interest (such as in case of adop- ings when the Italian Judge has jurisdiction over such matter. tion proceedings, disclaimer of paternity, revocation of parental responsibility), the Judge can appoint a representative for the 6.5 What factors does the court consider when making minor (a so-called “Curatore”), who is usually a family-law lawyer. orders in relation to children?

6.11 Do any other adults have a say in relation to the The paramount factor the court will consider is whether the arrangements for the children? E.g. step-parents or order will be in the best interests of the child. The court’s aim is grandparents or siblings. What methods of dispute for the child to maintain a close relationship with both parents resolution are available to resolve disputes relating to and other relatives. Other factors taken into account are the age children? of the children and the relationship they enjoy with each parent. A child can also be listened to by the Judge. Children can In addition to parents, grandparents have a right to make a claim be listened to at the age of 12 or even younger if it is shown in relation to children arrangements. Grandparents can ask the that they have reached a certain degree of capacity. Children court to make a schedule of contact with their grandchildren in younger than 10 years old are listened by a court expert who some circumstances (i.e. where the parents prevent their rela- prepares a report for the Judge. tionship with the children). Mediation is another method of dispute resolution also avail- 6.6 Without court orders, what can parents do able to grandparents. unilaterally? For example, can they take a child abroad? 72 Children – International Aspects The parents can only take unilateral decisions concerning the children’s daily routine. In cases of shared parental responsi- 7.1 Can the custodial parent move to another state/ bility, the main decisions need to be agreed between the parents. country without the other parent’s consent? In case of disagreement, any decision regarding the children’s education, health, relocation, etc. must be authorised by the court. No, it is not possible to move a child to another jurisdiction without the other parent’s consent. In case of disagreement on the relocation, the decision lies with the court. 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 7.2 Can the custodial parent move to another part of There is no such presumption. However, the court’s paramount the state/country without the other parent’s consent? position is that the children maintain an equal relationship with both parents. No, the same rules as per the relocation to another state/country apply.

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7.3 If the court is making a decision on relocation of a However, it is worth mentioning that there has been a recent child abroad, what factors are taken into account? change in the approach of the Italian Courts when making spousal maintenance orders in divorce proceedings. Previously, the parties’ standard of living was considered a highly relevant Case law on relocation of a child abroad has listed the criteria that factor in making such orders. However, now it is commonplace must be taken into account, on balance, in making a decision: that this is only one amongst many other factors in determining ■ the reasons behind the decision of the parent to relocate the amount of spousal maintenance. This has therefore signif- (for example, personal reasons or job opportunities); icantly reduced the awards recognised to financially weaker ■ the potential prejudice on the other parent’s contact spouses that based their claims mainly on the standard of living with the children (depending on the distance from the enjoyed during the marriage. new place, travel connections, cooperation between the parents, etc.); ■ the possibility that the other parent would also relocate to 8.2 What impact, if any, has the COVID-19 pandemic the same state/country; had on family law in your jurisdiction to date, and is likely to have over the next 12 months? ■ the possibility for the children to maintain a close relationship with their relatives/friends (i.e. returning to visit them from time to time); The COVID-19 pandemic has significantly increased the ■ the potential psychological impact of the relocation on the number of separations/divorces across the country. children (depending on the different culture, language, The COVID-19 pandemic has also meant that many sepa- etc. in the new environment); rated/divorced parents have not been able to visit their children in ■ the environment where the parent wishes to relocate accordance with their legal rights, due to the enforced lockdown. (whether or not it is a child-friendly place, there are good However, delegated legislation has clarified that contact between schools, etc.); parents and children was exempt from the lockdown measures. ■ the age of the children; and Another issue that has arisen is related to children mainte- ■ the will and wishes of the children. nance payments, where many parents have been furloughed or had their contracts terminated and were not able to pay the monthly contributions. In such cases, a number of urgent 7.4 If the court is making a decision on a child moving proceedings for debt recovery have been filed with the courts to a different part of the state/country, what factors are (by the receiving parents), alongside a significant number of taken into account? variation proceedings filed by the contributing parents.

The same factors as per relocation abroad are taken into account, but the main factors are the distance between the places and the 8.3 To what extent and how has the court process and other dispute resolution methods for family law been consequences on the other parent’s contacts with the children. adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, 7.5 In practice, how rare is it for the custodial parent to paperless processes)? Are any of these changes likely to be allowed to relocate internationally/interstate? remain after the COVID-19 crisis has passed?

It is quite common nowadays for international relocations to be All civil proceedings have been suspended during the COVID-19 authorised. However, it highly depends on the specific circum- pandemic, with the exception of urgent proceedings such as stance of the case. family law proceedings. The Italian Court process has, since 2014, been almost completely paperless and based on remote access. However, 7.6 How does your jurisdiction deal with abduction new additional measures have also been introduced, including cases? For example, is your jurisdiction a party to the virtual hearings for judicial proceedings and the possibility to Hague Convention? renounce attending the court in consensual proceedings. It is unlikely that these measures will continue after the Italy has been a party to the Hague Convention since 1994 and COVID-19 emergency, as the personal attendance of the abduction cases are dealt accordingly. Child abduction is also a spouses in family law proceedings is considered highly impor- criminal offence that may be punished with imprisonment of up tant, save for exceptional circumstances. to four years, and an indefinite stay of parental responsibility. 8.4 What are some of the areas of family law which you 82 Overview think should be looked into in your jurisdiction?

8.1 In your view, what are the significant developments A highly rumoured improvement is the introduction of a law in family law in your jurisdiction in the last two years? regulating pre- and post-nuptial agreements. Other areas include: There have been no significant law developments in the last two ■ the creation of a family court; years. ■ the introduction of trust law; and ■ adoption by single parents and unmarried couples.

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Maria Fiorito graduated from Università Cattolica del Sacro Cuore in Milan in 2012 and qualified as an Italian Avvocato in 2015. Prior to moving to London in 2016, she practised family law at two top law firms in Milan. She qualified as a Solicitor of England and Wales in 2020, becoming a dual-qualified lawyer. Her expertise includes all the main areas of family law within the Italian and England and Wales jurisdictions (such as finances and children), with a particular reference to any international aspects, such as cross-border divorces. She is a member of AIAF (Italian Association of Family Lawyers), BILA (British Italian Law Association) and Women in Family Law.

Vardags Tel: +44 20 7404 9390 10 Old Bailey Email: [email protected] London EC4M 7NG URL: www.vardags.com United Kingdom

Vardags is an elite team comprising some of the UK’s best litigation lawyers. The firm has extensive coverage, with offices in London’s Old Bailey, Manchester, Cambridge, Oxford and Winchester. Vardags specialises in complex and challenging, high-profile and often international litigation cases, catering to a predominantly high-net-worth client base. The firm centres around the London family law practice, and is led by Ayesha Vardag, described in the media as “Britain’s top divorce lawyer” (the Law Society, The Guardian, The Telegraph, Daily Mail and HuffPost US). We have a strong focus on obtaining the best possible outcomes for our clients (either through the courts, or behind closed doors) and do so time after time, by out-litigating our opponents and arguing the strongest possible intellectual arguments, leaving no stone unturned. www.vardags.com

Family Law 2021 106 Chapter 15 Japan Japan

Haraguchi International Law Office Kaoru Haraguchi

12 Divorce 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an uncontested divorce? 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, domicile, etc.? Under Japanese law, a husband and wife can get divorced by mutual agreement in accordance with Article 763 of the Civil Code (“CC”). Under Article 3-2 of the Personal Status Litigation Law The elements of the judgment divorce under Article 770(1) of (“PSLL”) if: the CC are as follows: (1) the domicile of the defendant is in Japan; (i) a spouse has committed an unchaste act; (2) the nationalities of both parties to the divorce are Japanese; (ii) a spouse was abandoned by another spouse in bad faith; (3) the last common residence of the parties to the divorce was (iii) it has not been clear whether a spouse is dead or alive for at located in Japan and the plaintiff of the litigation is a resi- least three years; dent of Japan; or (iv) a spouse is suffering from severe mental illness and there (4) the plaintiff is a resident of Japan and the location of the is no prospect of recovery; or defendant is unknown. (v) there is any other grave cause making it difficult to Please note that litigation not meeting one of the above cate- continue the marriage. gories may be accepted if there is a special circumstance under The last element is interpreted to mean the same as “irrecov- which the judgment by the family court of Japan leads to a fair erable breakup of the marriage”. The factors to determine the trial or a “due and speedy” trial under Article 3-2-7 of the PSLL existence of this ground are domestic violence, serious insult, as amended. failure to work despite the ability to work, wasteful habits, crime, The above revision is based on the famous Supreme Court conflict with the spousal family and difference in personal judgment below. characteristics. The judgment of the Supreme Court of March 25, 1964 set an The length of the period of separation is considered one exception to the general jurisdictional requirement if the plain- of the most important factors in establishing the last ground. tiff is located in Japan and one of the following requirements However, separation is not an indispensable factor of divorce. is met: There was an argument whether the wife or husband who is (i) the plaintiff was abandoned by the defendant; responsible for the irrecoverable breakup of the marriage could (ii) the whereabouts of the defendant are unknown; or file a divorce lawsuit against his/her spouse. (iii) in case of other situations equivalent to the above. The judgment of the Supreme Court dated September 2, 1987 By applying this rule, the Supreme Court affirmed the juris- held that he/she could file a divorce if: diction over the divorce case filed by a Korean wife residing in (i) the duration of separation is particularly long, considering Japan against her Korean husband who had never been to Japan the ages of the parties and compared with the duration of and whose whereabouts were not known. cohabitation; Another judgment of the Supreme Court of June 24, 1996 set (ii) there are no dependent children; and another exception to the general jurisdictional requirement: if (iii) there are no outstanding circumstances, particularly the plaintiff is located in Japan and the plaintiff has difficulty in against social justice or in situations where the spouse, filing a divorce lawsuit, de jure or de facto, against the defendant in in objecting to the divorce, will be placed into extremely the location of the defendant. severe mental, social or economic conditions upon divorce. By applying this rule, the Supreme Court affirmed that it has jurisdiction over a divorce case filed by a Japanese husband residing in Japan against his German wife located in Germany. 1.3 In the case of an uncontested divorce, do the In this case, the German court rendered a divorce judgment and, parties need to attend court and is it possible to have a therefore, the Japanese husband is not allowed to file a divorce “private” divorce, i.e. without any court involvement? lawsuit again in Germany. The Japanese husband did not need to file a lawsuit in Japan in order to divorce his wife. No, they do not if both parties are Japanese. The Japanese parties only have to submit the application for divorce to the municipal office.

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Under Japanese law, Japanese couples may divorce by agree- Japan shall apply. For example, the judgment of the Tokyo ment (Article 763 of the CC). Divorce by agreement can be Family Court of September 11, 2007 refused to recognise concluded as far as both parties agree on divorce, whether or not a divorce order of the Australian court as both parties had there is a ground for judicial divorce. domicile in Japan. The uncontested divorce of foreign couples in Japan is compli- (ii) The defeated defendant has received a service (excluding a cated. If both couples come from a common law jurisdiction service by publication or any other service similar thereto) and mutual consent divorce without judgment is not accepted, of a summons or order necessary for the commencement the parties at least have to apply for mediation. Although one of the suit, or has appeared without receiving such service. member of the mediation panel is a judge, the mediation is essen- To meet this condition, the international service from the tially a divorce by mutual consent without a judgment. A ruling foreign country to the defendant in Japan shall meet the instead of mediation rendered by the judge in accordance with requirements in compliance with the treaty on the service Article 284(1) of the Domestic Relations Case Procedure Act if both Japan and the foreign country are Member States of (“DRCPA”) is one of the practical solutions for this complexity. the treaty. The ruling will be fixed two weeks after the delivery of the (iii) The content of the judgment and the court proceedings are certified copy of the ruling to both parties in accordance with not contrary to public policy in Japan. Articles 285 and 279 of the DRCPA. The above Tokyo Family Court judgment also refused to The parties to the divorce may file the certified copy of the recognise a divorce order of the Australian court as the ruling and the certificate of the fixture of the ruling at the judgment is contrary to public policy in Japan. In this case, municipal office. both the husband and wife had domicile in Japan and the Most municipal offices will issue a receipt of the divorce to plaintiff (husband) was solely responsible for the irrecov- the parties to the divorce upon receiving the above documents. erable breakup of the marriage and could not file a divorce Most foreign embassies in Japan would accept the receipt by in Japan. the municipal office as evidence of the divorce if the party is a (iv) A mutual guarantee exists. foreigner. In practice, no foreign judgment has refused to recognise a foreign court divorce judgment applying this case. The 1.4 What is the procedure and timescale for a divorce? monetary judgment rendered by the People’s Republic of China (“PRC”) is not recognised under this clause but With regard to the procedure of divorce by mutual agreement, the divorce judgment of the PRC is recognised under this the parties shall submit the divorce papers with the signatures of clause. the parties to the municipal office. With regard to judicial divorce, a party has to file for medi- 1.7 Does your jurisdiction allow separation or nullity ation before the divorce litigation in accordance with Article proceedings? 257(1) of the DRCPA (“Mediation First Principle”). If the parties reach an agreement for divorce in the mediation proce- Under Japanese law, separation is not allowed but the nullifica- dure, the parties are granted a divorce by mediation, but if not, tion of marriage is allowed. Article 742 of the CC stipulates that the parties cannot get divorced by mediation. marriage shall be void only in the following cases: In this case, a party who wants to get divorced can file a (i) if one of the parties has no intention to marry due to lawsuit for divorce. In this procedure, if the court recognises the mistaken identity or other cause; or existence of one of the grounds for divorce mentioned above, (ii) if the parties do not lodge notification of marriage, the parties get divorced by judgment. In cases where there is a provided, however, that the effect of marriage shall not be serious dispute regarding divorce between parties, it often takes prevented merely because notification was not given in the more than one year for the court to render the judgment. form prescribed in paragraph (2) of Article 739 of the CC. If the marriage is declared null, the parties can file a lawsuit or 1.5 Can a divorce be finalised without resolving other file a petition for Adjudication of Domestic Relations. associated matters? For example, children and finances.

1.8 Can divorce proceedings be stayed if there are If the parties have a child who is still a minor, the person who proceedings in another country? has parental authority must be determined in both cases whether the parties get divorced by agreement or judgment (Article 819(1) (2) of the CC). If parties agree on that point, the person It is generally understood that the Japanese court has jurisdiction who has custody shall be decided based on the agreement; if not, over a matter even if there are proceedings in another country, the court has to decide on the person. as long as the Japanese court has the jurisdiction. However, once a foreign court has rendered a judgment and the judgment is recognised as valid in Japan by the Japanese court, the 1.6 Are foreign divorces recognised in your Japanese court will dismiss the ongoing petition for the reason jurisdiction? If so, what are the procedural requirements, that there is no merit to the petition. if any? 22 Finances on Divorce Foreign divorce is recognised where a foreign divorce judgment is final and meets the following conditions provided by Article 118 of the Code of Civil Procedure: 2.1 What financial orders can the court make on divorce? (i) The jurisdiction of the foreign court is recognised under laws or regulations or conventions or treaties. In determining if the foreign court has jurisdiction over The court can make orders regarding the distribution of prop- the case, the same jurisdiction rule adopted by the court of erty (Article 768 of the CC) and child support payment (Articles 771 and 766(1) of the CC).

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2.2 Do matrimonial regimes exist and do they need to agreement, either party may make a claim to the family court be addressed by the court on divorce? Is there a default for a disposition in lieu of agreement (Article 768(2) of the CC). matrimonial regime?

2.6 How long can spousal maintenance orders last and Under Article 760 of the CC, the husband and the wife shall are such orders commonplace? share the marital cost during the marriage. This marital cost- sharing obligation is terminated upon the divorce. In accordance with Article 762(1) of the CC, the assets As mentioned above, in Japan, there is no spousal maintenance obtained or increased during marriage are assumed as the assets obligation except for the cases where the element of post-di- of both husband and wife. vorce maintenance is considered when the court determines the The husband and wife may change the above by mutual agree- distribution of property. ment before the marriage according to Article 755 of the CC. Upon the divorce, the assets owned by the husband and wife 2.7 Is the concept of matrimonial property recognised shall be divided in accordance with Article 768 of the CC. in your jurisdiction?

2.3 How does the court decide what financial orders to With regard to matrimonial property, except the property owned make? What factors are taken into account? by one party before marriage and property obtained in the name of that party during marriage, the property owned by the parties With regard to orders for the distribution of property upon is regarded as co-owned property. divorce, the parties to the divorce could agree on how to distribute the matrimonial property. If both parties fail to agree the method of distribution of matrimonial property, the family court shall 2.8 Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can determine whether to make a distribution, and the amount and the court make orders applying foreign law rather than method of that distribution, taking into account the amount of the law of the jurisdiction? property obtained through the cooperation of both parties and all other circumstances (Article 768(3) of the CC). Distribution of property under Japanese law is generally Under Japanese law, if either the husband or the wife is a Japanese understood to cover the following three elements: national who has their habitual residence in Japan, their divorce (i) distribution of matrimonial properties that are acquired shall be governed by Japanese law (Article 27 of Act on General during marriage; Rules for Application of Laws (“AGRAL”)). (ii) compensation for the emotional damage caused by divorce; In other cases, the effect of a divorce shall be governed by the and national law of the husband and wife if their national law is the (iii) post-divorce maintenance. same, or, where that is not the case, by the law of the habitual With regard to element (i) above, except for special cases, the residence of the husband and wife if their law of the habitual levels of contribution of the parties are assumed to be equal. residence is the same, or, where neither of these is the case, by With regard to element (ii) above, if a party is responsible the law of the place most closely connected with the husband for the breakdown of the marriage, the other party can claim and wife (Articles 27 and 25 of the AGRAL). compensation for the emotional damage caused by the divorce in accordance with Article 709 of the CC. This claim can be included in the claim of distribution of property. 2.9 How is the matrimonial home treated on divorce? With regard to element (iii) above, in making an order for the distribution of property, the court can only consider this The matrimonial home is treated as one of the properties which element when one of the parties cannot support his/herself is the object for distribution under the rules mentioned in ques- following the divorce, even if they receive property from the tion 2.3 above. other party as outlined in the elements (i) and (ii).

2.10 Is the concept of “trusts” recognised in your 2.4 Is the position different between capital and jurisdiction? If so, how? maintenance orders? If so, how?

Under the case laws of Japan, maintenance of the spouse, other There is no special concept of family trusts under Japanese law. than the distribution of property upon divorce, is merely supple- mental. In other words, one spouse may be required to support 2.11 Can financial claims be made following a foreign the other only if the distribution of property upon the divorce divorce in your jurisdiction? If so, what are the grounds? is not sufficient to support the living of the other. The other spouse is, in general, not entitled to receive financial support The grounds for recognition of financial claims made following or alimony other than the distribution of the assets upon the divorce under the laws of Japan. a foreign divorce are the same as the grounds mentioned in question 1.6 above.

2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? If the parties have agreed on financial matters, they do not need to have a court order. With regard to the distribution of property, only when the parties do not, or cannot, settle on In Japan, the parties can use mediation and lawsuits.

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32 Marital Agreements of getting married but have not yet filed the formal registration in accordance with case law. Therefore, de facto spouses have financial claims should they separate. 3.1 Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is a foreign agreement? 4.2 What financial orders can a cohabitant obtain?

Under Japanese law, marital agreements are concluded only As mentioned above, de facto spouses can obtain an order for before marriage (Article 755 of the CC). Though marital agree- property division. ments are not popular in Japan, the agreements are enforceable as long as the agreements are not against public policy (Article 4.3 Is there a formal partnership status for cohabitants 90 of the CC). However, if a party has entered into a contract (for example, civil partnerships, PACS)? that departs from the statutory property system, the contract may not be asserted against the successor in title of the husband or wife, or a third party unless registered prior to notification of Under Japanese law, there is no provision regarding formal part- marriage (Article 756 of the CC). nership status for cohabitants. Also, a foreign agreement on marital property concluded under a foreign law may be asserted against a third party when it 4.4 Are same-sex couples permitted to marry or enter is registered in Japan (Article 26(4) of the AGRAL). other formal relationships in your jurisdiction?

3.2 What are the procedural requirements for a marital Under Japanese law, same-sex couples are not permitted to agreement to be enforceable on divorce? marry. As mentioned above, there is no provision regarding formal relationships other than marriage. Some practitioners Under Japanese law, marital agreements are concluded only believe Article 768 of the CC for married parties is applied before marriage (Article 755 of the CC). The agreements are mutatis mutandis to same-sex couples intending to live forever as a enforceable as long as the contents of the agreements are not married couple. In that case, a partner may have financial claim against the public policy of Japan (Article 90 of the CC). Also, against the other if the couple separate. a foreign agreement on marital property concluded under a On September 18, 2019, an epoch-making judgment was foreign law may be asserted against a third party when it is regis- rendered by the Mooka branch of Utsunomia District Court. tered in Japan (Article 26(4) of the AGRAL). The court admitted a mental damage claim by a woman against However, if a party has entered into a contract that departs her female partner for sexual intercourse with a third party. from the statutory property system, the contract may not be The court pointed out that the relationship of female couples is asserted against the successor in title of the husband or wife, or similar to a male and female couple that is not officially married a third party (Article 756 of the CC). by submitting the report to the ward office in accordance with Article 739(1) of the CC.

3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, 52 Child Maintenance or are they limited to the election of the matrimonial property regime? Can they deal with financial claims 5.1 What financial claims are available to parents on regarding children, e.g. child maintenance)? behalf of children within or outside of marriage?

If a party has entered into a contract that departs from the stat- Under Japanese law, the parent who does not reside with the utory property system, the contract may not be asserted against dependent child has an obligation to pay child maintenance to the successor in title of the husband or wife, or a third party the other parent who resides with the child both within and (Article 756 of the CC). outside of marriage. Parents have an obligation to support their As long as the contents of the agreements are not against the dependent child. public policy of Japan (Article 90 of the CC), they can cover a spouse’s financial claims on divorce. The agreements can deal with financial claims regarding chil- 5.2 How is child maintenance calculated and is it administered by the court or an agency? dren, such as child maintenance, although the terms and conditions of agreements shall be construed by the prevailing principal in the best interest of the child (see Article 766(1) of the Parents can decide the amount of child support by mutual agree- CC). ment. In cases where they cannot reach an agreement, the court or a mediation panel will decide the amount. 42 Cohabitation and the Unmarried Family In cases where the amount of child maintenance is decided by judgment, mediation or adjudication, the amount is calculated with a formula designed to reflect the concept that the parents 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the are responsible for ensuring their dependent child enjoys the grounds to make a financial claim? same standards of living as the parents. A simplified chart has been created by court. The chart and usage can be obtained on the website of the Tokyo Family Court (http://www.courts. With respect to cohabitation, there is no provision on the subject go.jp/tokyo-f/saiban/tetuzuki/youikuhi_santei_hyou/). of the division of property for unmarried cohabitees. However, In accordance with the chart, the amount of child mainte- Article 768 of the CC for married parties is applied mutatis nance is calculated by taking into account the incomes of both mutandis to de facto spouses who live together with the intention parents, the age of the children, and the number of the children

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involved. However, in cases where there are special circum- 6.3 What is the duration of children orders (up to the stances which result in the amount calculated by the formula age of 16 or 18 or otherwise)? being considerably unfair, the court can order an amount which departs from the chart by considering the special circumstances. A child who is under the age of 18 (or 20) is subject to the parental authority of his/her parents (Article 818(1) of the CC). However, 5.3 For how long is a parent required to pay child in cases where the child enters into marriage, he/she is no longer maintenance or provide financial support for their subject to the parental authority (Article 753 of the CC). children? For example, can a child seek maintenance during university? 6.4 What orders can the court make in relation to Though there is no provision stipulating the cut-off age of child children? Does the court automatically make orders in relation to child arrangements in the event of divorce? support, in general, the parent is required to pay child maintenance until the child reaches the age of 20. However, in cases where there are special circumstances Upon the divorce, the court shall decide the sole parental which mean the child is unable to make his/her living by them- authority if the parties to the divorce fail to determine who is to selves, the parent has to pay child maintenance until the child become the sole parental authority in accordance with Articles is able to do so. 819(1) to (3) of the CC.

5.4 Can capital or property orders be made to or for the 6.5 What factors does the court consider when making benefit of a child? orders in relation to children?

In cases where the parents cannot agree the amount of child Upon the determination of the sole parental authority, the court maintenance, the court can decide the amount and make an will have considered who is the primary caregiver of the child, order regarding child maintenance. continuity of the family and school life of the children and the will of the children. 5.5 Can a child or adult make a financial claim directly During the divorce mediation and litigation, the primary against their parents? If so, what factors will the court caregiver is most likely regarded as the mother. After the sepa- take into account? ration of the husband and wife, the family and school life of the child would easily be established with the mother. In some If the child is represented by its statutory agent, the child can cases, the child is strongly encouraged by the mother to refuse make a financial claim against his/her parents. The court will to see his/her father. Children may also sense the feeling of the consider the need of the children, his/her parents’ financial mother who is the sole caregiver of the child, and refuse to see conditions and any other factors relevant to maintain the finan- the father voluntarily. In that case, the left-behind husband has cial conditions of the child in light of the best interest of the little chance to be appointed as the sole parental authority by the child. court based on the continuity of the family and school life of the child and his/her will. 62 Children – Parental Responsibility and There is a consensus among family law practitioners in Japan, Custody that the mother has a strong incentive to abduct the child(ren) from her husband upon the divorce in the sole custodian determi- 6.1 Explain what rights of custody both parents have in nation procedure under Article 819(1) of the CC. Some countries, your jurisdiction, whether (a) married, or (b) unmarried? such as the US, criticise Japan as “the haven of abductor”. Recently, the Matsudo branch of the Chiba District Court (a) Under Japanese law, both parents have parental authority of rendered an epoch-making decision on March 29, 2016 children in wedlock during their marriage (Article 818(1) of (Matsudo Judgment). The Matsudo judgment compared the the CC). Parental authority includes both legal and phys- parenting plans submitted by both the wife and the husband ical custody. At the time of the divorce, by agreement or (who had been left behind for six years without visitation of his by the order of the court, one of the parents shall be given child) and appointed the husband as the parental authority of parental authority (Articles 819 (1) and (5) of the CC). the child because his parental plan was friendlier than that of the (b) On the other hand, with regard to children out of wedlock, mother as it provided more chances for visitation to the other. the mother has the parental authority. This judgment is recognised to apply the parent-friendly rules adopted in the US and other Western countries. 6.2 At what age are children considered adults by the Tokyo High Court, however, rendered a reverse decision on court? January 26, 2017, which concluded that the mother should have the parental authority, pointing out visitation issues as one of the consideration factors and stating that “how the children have Children are considered adults at the age of 18 (or, according been raised up, their wills, etc. should be taken into account in to Article 4 of the CC, to be implemented from April 1, 2022, up until the age of 20). However, if the children enter into a total manner”. marriage, they are considered adults even if under the age of 18 The Supreme Court judged on July 12, 2017, that the Tokyo (or 20 until March 31, 2022). High Court should be upheld.

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6.6 Without court orders, what can parents do 819(1), (2) and (5) of the CC. The parent holding parental unilaterally? For example, can they take a child abroad? authority can decide the place of the residence of child (Article 821 of the CC). He/she can, therefore, move to another country together with the child without the consent of the other parent. Under Japanese law, the parental authority can be exercised without court order. As the parent who has parental authority can determine the residence of the child (Article 821 of the CC), 7.2 Can the custodial parent move to another part of he/she can take the child abroad without a court order. the state/country without the other parent’s consent?

6.7 Is there a presumption of an equal division of time Under the laws of Japan, one of the parents shall have the between separating or divorcing parents? parental authority upon the divorce, in accordance with Articles 819(1) and (2) of the CC. The parent holding parental authority can decide the place of the residence of child (Article 821 of the Under Japanese law, there is no concept of joint parental CC). He/she can, therefore, move to another country together authority, and there is no presumption of an equal division of with the child without the consent of the other parent. time between separating or divorcing parents. Equal division of time is often regarded to be too much of a burden on the child’s family and school life with the primary caregiver. 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account?

6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on Under the laws of Japan, the court has no authority to render the separation or divorce? relocation order.

Under the laws of Japan, unmarried parents are not treated in 7.4 If the court is making a decision on a child moving the same way as married parents. The court also does not have to a different part of the state/country, what factors are the authority to make orders on the separation or divorce of the taken into account? unmarried couple. The parental authority is held by the mother of the child until the father adopts the child. Under the laws of Japan, the court has no authority to render the relocation order, thus, there is no specific procedure for seeking 6.9 Is a welfare report prepared by an independent the permission of the court to remove a child out of Japan. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? In cases with regard to children, including parental authority and visitation, the judge may have a family court probation officer No practice of the court allows the custodial parent to relocate examine the facts of the case (Article 58(1) of the DRCPA). the child internationally. In that case, the officer meets the child and speaks with them instead of the judge. However, whether the officer speaks with the child is at the discretion of the judge. 7.6 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention? 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a lawyer? Japan entered into the Hague Convention on January 24, 2014, and the convention became effective in Japan on April 1, 2014. As a result, Japan deals with abduction cases in accordance with Yes. Only a qualified lawyer can represent the child(ren) in the Convention. accordance with Article 23 of the DRCPA. 82 Overview 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or 8.1 In your view, what are the significant developments grandparents or siblings. What methods of dispute in family law in your jurisdiction in the last two years? resolution are available to resolve disputes relating to children? As question 6.5 explained above, although the Matsudo branch of No. The exclusive custody rights of the child(ren) are given to the the Chiba District Court rendered a decision on March 29, 2016 parents of the child in accordance with Article 818(1) of the CC. (Matsudo Judgment), applying the parent-friendly rules adopted To resolve disputes relating to children, the methods of medi- in the US and other western countries, it was overruled by the ation and litigation of the family court are available. Tokyo High Court decision on January 26, 2017, which concluded that the mother should have the parental authority, pointing out visitation issues as one of the consideration factors and stating 72 Children – International Aspects “how the children have been raised up, their wills, etc. should be taken into account in a total manner”. This view was upheld and 7.1 Can the custodial parent move to another state/ finalised by the Supreme Court judgment on July 12, 2017. country without the other parent’s consent? In Japan, a child’s mother taking him/her away from the father has also been considered parental alienation or brainwashing of Under the laws of Japan, one of the parents shall have the the child. Although the courts do not explicitly recognise the parental authority upon the divorce, in accordance with Articles concept of parental alienation, which is a controversial concept

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in the US, the court of Japan implicitly recognises the concept. The governing law applicable to the elements and effects of A district court states that the opinion of the child taken by a divorce is prescribed by the Act of General Rules for Application Japanese mother from a foreign father is not always trustworthy of Laws (“AGRAL”). in that the child is heavily dependent on the mother and may be Under Articles 27 and 25 of the AGRAL, the effect of a influenced by her opinion too much. divorce shall be governed by the national law of the husband The issue is how to prevent such parental alienation. Some and wife if their national law is the same, or, where that is not scholars and practitioners believe the spirit of the Hague the case, by the law of the habitual residence of the husband Convention, which is applicable only in international abduction and wife if the law of their habitual residence is the same, or cases, should also be applicable in the domestic abduction cases. where neither of these is the case, by the law of the place most According to them, the court should order that the provisional closely connected with the husband and wife. However, if either retrievable order be issued to avoid the parental alienation. husband or wife is a Japanese national who has habitual residence in Japan, Japanese law applies. For example, where you are British and your wife is Japanese, 8.2 What impact, if any, has the COVID-19 pandemic and you have been living together for more than one year, your had on family law in your jurisdiction to date, and is divorce should be governed by the laws of Japan. likely to have over the next 12 months? Where you are a US citizen and your wife is a Canadian citizen, and you have been living together in Japan for more than one On April 7, the Prime Minister of Japan made an emergency year, your divorce should also be governed by the laws of Japan. declaration. Under the declaration, the Governor of the Tokyo How about if you were born and grew up in the state of New Metropolitan government and other leaders of each municipal York in the United States and your wife was born and grew up in government strongly recommended people in Japan to stay at the state of California in the United States? The governing law home to avoid being infected by COVID-19. of your divorce is governed by the United States? No. There is Immediately after the emergency declaration, the Tokyo no federal divorce law in the United States. Each US state has Family Court, District Court and High Court started cancel- different family law. ling court/mediation dates. Because of the cancellation of the How can you determine the governing law of the divorce of court/mediation dates, visitation, divorce and marital support you and your wife in Japan? Under Article 38(3) of the AGRAL, has been suspended. where a party concerned has nationality in a country where Due to the collective effort of the Japanese people, the risk different laws are applied in different regions, his/her national of infection of COVID-19 has been dramatically reduced. The law shall be the law designated in accordance with the uniform damage to the economy, however, has not yet recovered at all. rules of the country (in the absence of such rules) and the law of Although the Japanese government has started implementing the region with which the party is most closely connected. financial support to the people of Japan, the pace is very Under Article 38(3) and Article 27 of the AGRAL, you and conservative and many families are still suffering a lot of stress your wife do not have the same national law and therefore the from the COVID-19 pandemic. The impact of COVID-19 is laws of Japan should be the governing law of their divorce if you have both lived in Japan for more than one year. likely to continue over the next 12 months. If you were born and grew up in the province of British As of June 23, 2020, most court and mediation dates have not Columbia, Canada and your wife was born and grew up in the yet resumed. province of Alberta, Canada, which law is the governing law of your divorce in Japan? This is a very difficult question. Because 8.3 To what extent and how has the court process and there is a federal Divorce Act in relation to the elements of other dispute resolution methods for family law been divorce in Canada and there is also a family law in each province adapted in your jurisdiction in light of the COVID-19 in relation to asset distribution, the federal Divorce Act would pandemic (e.g. virtual hearings, remote access, be the governing law of elements of divorce. paperless processes)? Are any of these changes likely to However, the federal Divorce Act is silent in regards to asset remain after the COVID-19 crisis has passed? distribution upon divorce. The family law of each province governs the asset distribution of the divorce. In that case, the Surprisingly, no substantial changes to the court/mediation governing law of the asset distribution of your divorce in Japan process have been introduced. The courts merely cancelled would be governed by the laws of Japan if both of you have court and mediation dates and have not yet introduced remote lived in Japan for more than one year immediately preceding access or virtual hearings. The government’s plan is to promote the divorce. online proceedings for determining the points at issue, oral proceedings, examination of witness, and even bringing a case 2. Which law should be applied in relation to parental online. rights and obligations upon an international divorce? These changes would be introduced after the reform of civil Under Article 32 of the AGRAL, the legal relationship between litigation law, and it would be possible for oral proceedings to be parents and their child shall be governed by the child’s national law online by 2023, and to file a suit online by 2025. if it is the same as the national law of either the father or mother or, in other cases, governed by the law of the child’s habitual resi- 8.4 What are some of the areas of family law which you dence. One big issue is where the child has dual nationalities. think should be looked into in your jurisdiction? Under Article 38(1) of the AGRAL, where a party has two or more nationalities, the party’s national law shall be the law of the country of his/her nationality where he/she has habitual 1. Which law should be applied in an international divorce? residence, or the law of the country closest to that of the party’s The areas of international marriage and divorce in family law nationality where he/she has habitual residence, provided, should be looked into in Japan. however, that if one of those nationalities is Japanese, Japanese law shall be the party’s national law.

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For example, a father is a US citizen and a mother is a Japanese Acknowledgment citizen. A child between a US citizen and a Japanese citizen would have US and Japanese nationalities. As long as the child This article has greatly benefitted from “Mikiko Otani., 2013. has been living in Japan for more than a year, he/she has habitual Japan. In: James Stewart et al., ed. 2013. Family Law. London: residence in Japan. As his/her mother is Japanese, the parental Sweet & Maxwell. pp.359-374”. The author of this chapter is relationship with the US citizen shall be governed by the laws of deeply grateful to Ms. Mikiko Otani. Japan under Articles 38(1) and 32 of the AGRAL.

3. Expert legal advice is highly recommended As explained above, the governing law of the divorce for international couples is highly complex and the advice of experienced international divorce experts, such as our firm, is highly recommended.

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Kaoru Haraguchi, a founding partner of our office, has been engaged in practising family law for approximately 30 years. He has wide and rich experience in Japan, the US (Chicago, Washington, D.C. and New York) and the UK (London) following his studies (LL.M., the Law School of the University of Chicago, class of 1993), and has practical experience gained from law firms in New York, Washington, D.C. and London. He also provides legal services to international clients all over the world, recent locations including China and Mongolia in particular. Based on his international experience, he is able to serve many international clients in English.

Haraguchi International Law Office Tel: +81 3 6205 4404 Rapport Haraguchi 2F, 18-12 Email: [email protected] Taishido 4-chome, Setagaya-ku URL: www.haraguchi-law.com Tokyo 154-0004 Japan

Haraguchi International Law Office was founded in 2004 by Kaoru Haraguchi in order to provide the highest quality of legal service in a timely manner to its Japanese and foreign clients. We are multilingual and provide services in languages other than Japanese, such as English, Chinese and Mongolian. We are active members of domestic and international organisations together with domestic and international family law experts, child psychologists in highly conflicted cases, and psychiatrists. We have been practising family law for US citizens and other citizens from all over the world for around 30 years. We have extensive experience in representing left-behind parents and alienated parents through family courts’ mediation and judgments. www.haraguchi-law.com

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Malaysia Malaysia

Ariff Rozhan & Co Ezane Chong

12 Divorce (i) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (ii) the respondent has behaved in such a way that the 1.1 What are the grounds of jurisdiction for divorce petitioner cannot reasonably be expected to live with proceedings? For example, residence, nationality, the respondent; domicile, etc.? (iii) the respondent has deserted the petitioner for a continuous period of at least two years immediately Malaysia has a dual system of justice applicable in matters of preceding the presentation of the petition; and family and personal law. Secular or civil law governs non-Mus- (iv) the parties to the marriage have lived apart for a lims and is applied in the civil courts, whereas Islamic or Sharia continuous period of at least two years before the (Syariah) law governs Muslims and is applied in the religious or presentation of the petition. Syariah courts. For the purposes of this chapter, only the law A petition for divorce cannot be presented: governing non-Muslims will be discussed. (a) within the first two years of marriage unless it can be With respect to non-Muslim divorces, the Malaysian courts shown that there are exceptional circumstances or hard- have jurisdiction to grant a decree of divorce if: ship suffered by the petitioner (s 50, LRA). This require- (a) the marriage was or is deemed to be registered under ment does not apply to a marriage where one spouse has the Law Reform (Marriage & Divorce) Act 1976 (LRA) converted to Islam; and (s 48(1)(a), LRA), or was contracted under a law providing (b) subject to certain exceptions, until the couple has first that, or in contemplation of which, marriage is monoga- referred their matrimonial difficulty to a conciliatory body mous (s 48(1)(b), LRA); and and that body has certified that it has failed to reconcile (b) the domicile of the parties to the marriage at the time them (s 106, LRA). Reference to a conciliatory body is when the divorce petition is presented is in Malaysia (s not required if the couple is dissolving the marriage on the 48(1)(c), LRA). ground of conversion to Islam or by mutual consent. In Malaysia, a wife does not a possess a domicile of her own. A Unless the petitioner is relying on desertion, or two years of woman acquires the domicile of her husband upon marriage and living apart as a ground for divorce, there is no required period assumes his domicile during the subsistence of that marriage (Khoo of separation. Kay Peng v Pauline Chai Siew Phin [2014] 10 CLJ 403). A married If both parties consent to divorce and can reach an agree- couple, therefore, have only one domicile and that is the domi- ment on all the terms of their divorce, they can have an uncon- cile of the husband. However, as an exception, a wife may peti- tested divorce. tion for divorce although her husband is not domiciled in Malaysia if she has been deserted by him or if he has been deported from Malaysia and was before the desertion or deportation domiciled 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a in Malaysia, or if she is resident in Malaysia and has been ordi- “private” divorce, i.e. without any court involvement? narily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings (s 49, LRA). Both parties must attend court. If a party is unable to attend, leave of court to dispense with that party’s presence must be 1.2 What are the grounds for a divorce? For example, sought. is there a required period of separation, can the parties It is not possible to have a “private” divorce. The legal termi- have an uncontested divorce? nation of a marriage, whether by divorce, judicial separation or annulment can only be effected by a decree of court. A married couple may petition for divorce: (a) where one party to the marriage has converted to Islam (s 51, LRA); 1.4 What is the procedure and timescale for a divorce? (b) where both parties mutually consent to its dissolution (s 52, LRA); If the divorce is uncontested, the parties file a joint petition. (c) where the marriage has irretrievably broken down (s 53, Depending on the court’s schedule, a hearing date is usually LRA) by reason of one or more of the following facts (s 54, fixed within one month from the date of filing whereupon a LRA): decree nisi dissolving the marriage may be pronounced. The

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decree absolute is applied for after three months from the decree nisi, (b) the marriage is voidable (s 70, LRA), namely if: unless the court grants leave to expedite it. (i) it was not consummated; If the divorce is contested, the petitioner files a unilateral (ii) either party did not validly consent to it, or if he or petition. Further pleadings are then exchanged. Upon close she was incapable of giving valid consent, or was a of pleadings, pre-trial case management directions will be mentally disordered person; or given by the court and trial dates fixed. The judge will hear the (iii) at the time of the marriage, the respondent was case and, after considering all the evidence including the testi- suffering from a communicable venereal disease, or mony of witnesses, may pronounce a decree nisi, to be made abso- was pregnant by some person other than the petitioner. lute after three months unless expedited. During the proceedings, discovery and inspection of documents may be sought and 1.8 Can divorce proceedings be stayed if there are interlocutory applications, for example applications for child proceedings in another country? custody, maintenance pending suit, a stay of proceedings, and injunctions, may be filed. The timescale can range from one Divorce proceedings in Malaysia can be stayed in favour of year to a few years, depending on the volume and complexity proceedings in another country on the grounds of forum non of the facts and issues being tried and the degree to which the conveniens. The Malaysian court hearing a stay application will proceedings are contested by the parties. consider whether it has jurisdiction and if it does, whether there is some other available forum in which the case may be more 1.5 Can a divorce be finalised without resolving other appropriately tried for the interests of all the parties and the associated matters? For example, children and finances. ends of justice and whether it would be unjust to the petitioner to confine him or her to remedies elsewhere (Spiliada Maritime Corp v Consulax Ltd (The Spiliada) (1987) AC 460; American Express Before granting a decree of divorce, the court will consider all Bank Ltd v Mohamed Tonfic Al-Ozier and another [1995] 1 MLJ 160). the circumstances of the case including how the interests of any children of the marriage and the parties may be affected. In the 22 Finances on Divorce case of an uncontested divorce, the court must satisfy itself that both parties freely consent to the dissolution of their marriage 2.1 What financial orders can the court make on divorce? and that proper provisions have been made for the wife, and for the support, care and custody of the children, if any. Whilst the court is empowered to make and vary custody and mainte- Division of matrimonial assets nance orders subsequent to divorce, an order for the division of The court is empowered, when granting a decree of divorce or matrimonial assets can only be made “when” a decree of divorce judicial separation, to order the division between the parties of or judicial separation is granted and not at a later date (s 76(1), any assets acquired by them during the marriage or the sale of any such assets and the division between them of the proceeds LRA; Manokaram Subramaniam v Ranjid Kaur Nata Singh (2008) 6 of sale (s 76, LRA). CLJ 209). Spousal maintenance 1.6 Are foreign divorces recognised in your Under the LRA, the court is empowered to order a man to pay jurisdiction? If so, what are the procedural requirements, maintenance to his wife or former wife during the course of any if any? matrimonial proceedings or when granting or subsequent to the grant of a decree of divorce or judicial separation. The court also If a marriage solemnised in Malaysia under the LRA is dissolved has the corresponding power to order a woman to pay mainte- by a court of competent jurisdiction outside Malaysia, either of nance to her husband or former husband where he is incapacitated, the parties may apply to the Registrar General of Marriages for wholly or partially, from earning a livelihood by reason of mental the registration of that foreign decree (s 107(3), LRA). or physical injury or ill health, and the court is satisfied that having regard to her means it is reasonable to so order (s 77, LRA). If a marriage not solemnised under the LRA is dissolved by Under the Married Women & Children (Maintenance) Act a court of competent jurisdiction outside Malaysia, either party 1950 (MWCMA), if any person neglects or refuses to maintain may apply to the Malaysian court for an order to recognise that his wife who is unable to maintain herself, a court, upon due foreign decree. proof, may order him to pay a reasonable monthly allowance to her, in proportion to his means (s 3, MWCMA). 1.7 Does your jurisdiction allow separation or nullity proceedings? Child maintenance The court may, at any time, order a man to pay maintenance for the benefit of his child. The court is also empowered to order Married couples who have a religious or conscientious objection a woman to pay or contribute towards the maintenance of her to divorce may petition for judicial separation on the ground that child where it is satisfied that having regards to her means it is the marriage has irretrievably broken down by reason of one or reasonable to so order (s 93, LRA). more of the four facts listed in s 54, LRA applicable to a unilat- Under the MWCMA, the court may order a person who eral petition for divorce (see the answer to question 1.2 above) neglects or refuses to maintain a legitimate child of his, to pay a (s 64, LRA). A person who is judicially separated cannot remarry. monthly allowance for maintenance in proportion to his means, A couple may also annul their marriage if: as is reasonable. If the child is illegitimate, the court may order (a) the marriage is void (s 69, LRA), namely if: him to pay a reasonable monthly allowance (s 3, MWCMA). (i) it was bigamous; (ii) it was within the prohibited degrees of relationship; Other financial orders (iii) the parties, or either of them, were underaged; or The court can also: (iv) the parties were not respectively male and female; (a) award damages against a co-respondent, on a petition for divorce where adultery has been alleged and proven (s 58, LRA);

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(b) order security for maintenance (ss 79 and 94, LRA); means and needs of the parties. Asset distribution orders can (c) vary orders or agreements for maintenance (ss 83, 84, 96 only be made by the court “when” a decree of divorce or judi- and 97, LRA); cial separation is granted and are final orders, whereas mainte- (d) recover arrears of maintenance (ss 86 and 98, LRA); nance orders may be made during the course of any matrimo- (e) make maintenance orders against a man to ensure the nial proceedings, when or subsequent to the grant of a decree of welfare of a child who is not his child but who has been divorce or judicial separation and are inherently variable. There accepted by him as a member of his family (s 99, LRA); and is no provision under the LRA for the court to make a capital (f) set aside and prevent dispositions intended to defeat claims or lump-sum order in lieu of maintenance which is payable to maintenance (s 102, LRA). periodically.

2.2 Do matrimonial regimes exist and do they need to 2.5 If a couple agrees on financial matters, do they be addressed by the court on divorce? Is there a default need to have a court order and attend court? matrimonial regime? Yes, if they want their agreement to be legally binding. There are no matrimonial regimes in Malaysia. 2.6 How long can spousal maintenance orders last and 2.3 How does the court decide what financial orders to are such orders commonplace? make? What factors are taken into account? Unsecured spousal maintenance orders expire on the death of Division of matrimonial assets the husband or wife, whichever is the earlier. Secured mainte- In determining the division of matrimonial assets, the court will nance orders expire on the death of the spouse in whose favour have regard to (s 76(2), LRA): the order was made (s 81, LRA). The right of any divorced (a) the extent of the contributions made by each party in person to receive maintenance from his or her former spouse money, property or work towards the acquisition of the ceases upon his or her remarriage or living in adultery with any assets or payment of expenses for the benefit of the family; other person (s 82, LRA). (b) the extent of the contributions made by the other party Spousal maintenance orders, in particular those in favour of who did not acquire the assets to the welfare of the family a wife, are commonplace especially in cases where the wife has by looking after the home or caring for the family; been financially dependent on her husband, but where she is gainfully employed and able to support herself, the court is less (c) any debts owing by either party that were contracted for inclined to award it. their joint benefit; (d) the needs of any minor children of the marriage; and (e) the duration of the marriage, 2.7 Is the concept of matrimonial property recognised and subject to those considerations, shall incline towards in your jurisdiction? equality of division. Yes, and they are subjected to division upon divorce. The courts Spousal maintenance have held that matrimonial assets include: In determining the amount of spousal maintenance to be paid, (a) the matrimonial home and everything put into it by either the court bases its assessment primarily on the means and needs spouse to be used for the benefit of the family as a whole; of the parties, regardless of the proportion such maintenance (b) properties acquired during the marriage apart from the bears to the income of the husband or the wife, but shall have matrimonial home; regard to the degree of responsibility which the court apportions (c) cars, cash and jewellery; to each party for the breakdown of the marriage (s 78, LRA). (d) shares in companies; Factors that the courts have taken into account include the dura- (e) insurance policies, employment and retirement benefits; tion of the marriage, the ages of the parties, whether there are (f) assets owned by one party before the marriage which have any children of the marriage, whether the husband had finan- been substantially improved during the marriage by the cially supported the wife during the marriage, his ability to pay other party or by their joint efforts; and and the potential earning capacity of the applicant. (g) assets held by a nominee on trust for either party.

Child maintenance 2.8 Do the courts treat foreign nationals differently on In assessing child maintenance, the court shall have regard to divorce? If so, what are the rules on applicable law? Can the needs of the child and the means of the parents, taking the court make orders applying foreign law rather than into account the standard of living the child was accustomed to the law of the jurisdiction? during the marriage. Provided jurisdiction is found, foreign nationals are not treated 2.4 Is the position different between capital and any differently. The Malaysian court will apply Malaysian law. maintenance orders? If so, how? 2.9 How is the matrimonial home treated on divorce? Broadly speaking, capital orders or asset distribution orders are assessed based on the parties’ respective contributions towards The matrimonial home is treated as a matrimonial asset and the acquisition of those (matrimonial) assets and towards the will form part of the pool of matrimonial assets that may be marriage, whereas maintenance orders are assessed based on the subjected to division.

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2.10 Is the concept of “trusts” recognised in your 42 Cohabitation and the Unmarried Family jurisdiction? If so, how?

4.1 Do cohabitants, who do not have children, have Yes. If it can be proven that an asset is held by a nominee on financial claims if the couple separate? What are the trust for either party to the marriage, then that asset may be grounds to make a financial claim? treated as a matrimonial asset, subject always to the provisions of the LRA. Malaysia does not recognise cohabitation. Cohabitants therefore have no entitlement to financial claims under family law. If they 2.11 Can financial claims be made following a foreign separate and have any claims against the other, they would need to divorce in your jurisdiction? If so, what are the grounds? fall back on, e.g., the law of contract, land law or trust principles.

Under the LRA, claims for maintenance may be sought subse- 4.2 What financial orders can a cohabitant obtain? quent to divorce but the Malaysian court has no power to make any orders for the division of matrimonial assets following a Please see the answer to question 4.1. foreign divorce. Unsatisfied foreign financial orders made in a foreign jurisdiction may be enforced but they cannot relate back to proper- 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? ties situated in Malaysia.

No, there is not. 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? Apart from court, financial settlements may be resolved via mediation, collaborative law and negotiations between the No, Malaysia does not recognise same-sex marriages or parties or their respective solicitors. relationships.

32 Marital Agreements 52 Child Maintenance

3.1 Are marital agreements (pre- and post-marriage) 5.1 What financial claims are available to parents on enforceable? Is the position the same if the agreement is behalf of children within or outside of marriage? a foreign agreement? A parent can apply for child maintenance under the LRA and/ Marital (prenuptial and postnuptial) agreements are not legally or the MWCMA. binding in Malaysia. The Malaysian court may be persuaded to Section 92 of the LRA provides that except where an agree- consider the agreement as evidence of how the parties intend to ment or order of court otherwise provides, it shall be the duty of regulate their financial affairs when the marriage breaks down a parent to maintain or contribute to the maintenance of his or but any agreement between spouses in Malaysia must be subject her children, by providing them with accommodation, clothing, to the LRA and require the court’s approval before they may be food and education as may be reasonable having regard to his or enforceable. her means and station in life or by paying the cost thereof. A “child of the marriage” under the LRA includes a child of one party to the marriage accepted as one of the family by the other 3.2 What are the procedural requirements for a marital party and “child” in this context includes an illegitimate child of agreement to be enforceable on divorce? either party to the marriage (s 2, LRA). A man who has accepted a child who is not his child as a member of his family also has a Please see the answer to question 3.1. duty to maintain that child if the mother and father of that child fail to do so (s 99, LRA). For claims under the MWCMA, please see the answer to 3.3 Can marital agreements cover a spouse’s question 2.1. financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? Can they deal 5.2 How is child maintenance calculated and is it with financial claims regarding children, e.g. child administered by the court or an agency? maintenance)? Child maintenance is assessed based on the means and needs Marital agreements can cover all types of financial claims, test (please see the answer to question 2.3) and administered by including financial claims regarding children, provided these the court. claims are not inconsistent with the LRA and do not oust the jurisdiction of the court. There is no matrimonial property 5.3 For how long is a parent required to pay child regime in Malaysia. maintenance or provide financial support for their children? For example, can a child seek maintenance during university?

Unless expressed to be for any shorter period or where such

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order has been rescinded, child maintenance orders expire when custody or access arise the wishes of the mother will be taken the child attains 18 years of age but where the child is under a into account but the welfare of the child is the first and para- physical or mental disability, or is pursuing further or higher mount consideration (T v O [1993] 1 MLJ 168). education or training, it expires on the ceasing of that disability or completion of the further or higher education or training, 6.2 At what age are children considered adults by the whichever is later (s 95, LRA). court?

5.4 Can capital or property orders be made to or for the In Malaysia, a “minor” is someone who has not reached the “age benefit of a child? of majority”. Pursuant to the Age of Majority Act 1971, the age of majority is 18 years. This is, however, subject to other written There are no provisions under the LRA for the making of capital law fixing the age of majority. For instance, under the GIA, or property orders to or for the benefit of a child. However, non-Muslim children shall be deemed to have attained their the court can order a person liable to pay child maintenance majority at age 21 years (s 2(2)(a)(ii), GIA). Under the LRA, a to secure the whole or any part of it by vesting any property in “minor” means someone who is under 21 years and who is not a trustees upon trust for the settlor. Child maintenance would widow or widower (s 2, LRA). Under the LRA and the Child Act then be paid by the trustees out of the income from the prop- 2001, a “child” means someone who is under the age of 18 years. erty (s 94, LRA). 6.3 What is the duration of children orders (up to the 5.5 Can a child or adult make a financial claim directly age of 16 or 18 or otherwise)? against their parents? If so, what factors will the court take into account? Unless expressed to be for a shorter period or where such orders have been rescinded, child custody and maintenance orders Yes. The application can be made on the child’s behalf by: expire when the child attains 18 years. Please see the answer to (a) the guardian of the child; question 5.3 for extension of children orders. (b) any person who has custody or care and control of the child under a court order; 6.4 What orders can the court make in relation to (c) a welfare officer to whom the care of the child has been children? Does the court automatically make orders in committed by order; relation to child arrangements in the event of divorce? (d) any person who has obtained leave to intervene in the cause for the purpose of applying for the custody of a child; Under the LRA, the court can make orders for custody, care (e) the Official Administrator if appointed as the guardian ad and control, access and maintenance. “Custody” means the litem of the child; or right to make important decisions in relation to, e.g. the child’s (f) any other person in whose care a child is and who has upbringing, health, education and religion. “Care and control” obtained leave to intervene in the cause (rule 57 of the denotes the day-to-day care of the child and “access” comprises contact arrangements for the parent deprived of custody, care Divorce and Matrimonial Proceedings Rules 1980 (DMPR)). and control. The same factors apply, namely the court will apply the means Under the GIA, the court is empowered to appoint and and needs test (please see the answer to question 2.3). remove a guardian over the person and property of a child. Under the Courts of Judicature Act 1964, the court has juris- 62 Children – Parental Responsibility and diction to appoint and control guardians of infants and generally Custody over the person and property of infants. Orders are made when sought but the court in divorce 6.1 Explain what rights of custody both parents have in proceedings will consider the arrangements pertaining to any your jurisdiction, whether (a) married, or (b) unmarried? children of the marriage.

The Guardianship of Infants Act 1961 (GIA) accords both the 6.5 What factors does the court consider when making father and the mother equal parental rights over their children orders in relation to children? (s 5, GIA). However, this does not mean that both parents must at all times be equally parenting the child. Whenever there is The paramount consideration is the child’s welfare and subject a dispute, the court can decide which parent should be given to this the court shall have regard to the wishes of the parents custody, care and control of a child, including access (Lai Meng and the wishes of the child where he or she is of an age to express v Toh Chew Lian [2012] 10 CLJ 479). The GIA applies to both an independent opinion (s 11, GIA; s 88(2), LRA). legitimate and illegitimate children (Sean O’Casey Patterson v Chan There is a rebuttable presumption that it is for the good of Hoong Poh and others [2011] 3 CLJ 722). a child below seven years to be with his or her mother but in deciding whether that presumption applies, the court shall have Married couples regard to the undesirability of disturbing the life of a child by If the couple is married, either of them may seek an order for changes of custody (s 88(3), LRA). custody of a child of the marriage. Where there are two or more children, the court is not bound to place both or all in the custody of the same person but shall Unmarried couples consider the welfare of each independently (s 88(4), LRA). If the couple is unmarried, the mother of the illegitimate child will prima facie have the right of custody and when questions on

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6.6 Without court orders, what can parents do 7.2 Can the custodial parent move to another part of unilaterally? For example, can they take a child abroad? the state/country without the other parent’s consent?

Without court orders, both parents can move freely with any of Please see the answer to question 7.1. their children and are entitled to make decisions on their child or children’s behalf without the need to consult the other. 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? The welfare of the child must be the paramount consideration and if the applicant’s reasonable proposals for relocation is not No, there is not. The court will consider all factors and decide incompatible with the welfare of the child and would not have what arrangements are in the child’s best interests. a detrimental impact on the welfare of the child, an application to relocate may be granted (Teh Eng Kim v Yew Peng Siong [1977] 6.8 Are unmarried parents treated in the same way 1 LNS 138). as married parents when the court makes orders on separation or divorce? 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are Please see the answer to question 6.1. taken into account?

6.9 Is a welfare report prepared by an independent Please see the answer to question 7.3. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? When considering any question relating to child custody and maintenance, the court shall, whenever practicable, take the It is not rare, provided the court is satisfied that the relocation is advice of a person who is trained or experienced in child welfare in the child’s best interests. but is not bound to follow the advice of this person (s 100, LRA). The judge may also interview the child. Ultimately, the decision rests with the judge. 7.6 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention? 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a lawyer? Malaysia is not a party to the Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention). There is, therefore, no mechanism in place for the prompt return of Not as of right, but if in any matrimonial proceedings it appears to the court that any child ought to be separately represented, children abducted to or from Malaysia. The Malaysian court has the court may (r 86, DMPR): jurisdiction to deal with children and accord them protection for (a) of its own motion, appoint the Official Administrator if he as long as they are physically and lawfully present in the country. consents; or If there is a foreign custodial order, the Malaysian court will take (b) on the application of any other proper person, appoint that that into account but is not bound by it and is entitled to hear the person to be guardian ad litem of the child with authority merits afresh and make its own decision applying Malaysian law, to take part in the proceedings on the child’s behalf. based on what it considers is in the child’s best interests. 82 Overview 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute 8.1 In your view, what are the significant developments resolution are available to resolve disputes relating to in family law in your jurisdiction in the last two years? children? On 15 December 2018, long-awaited amendments to the LRA The courts will take into account all relevant matters and may came into force: consider the evidence of other adults which might include the (a) the civil courts are now accorded with exclusive jurisdic- child’s relatives, if their evidence is adduced in court or if an tion over the dissolution of a civil marriage and all matters application (for example, an application for guardianship) is incidental thereto including granting a decree of divorce made by any of them, before it determines the arrangements for or other orders under the LRA, where one party has the children. converted to Islam and that such decree or orders made shall, notwithstanding any other written law, be valid 72 Children – International Aspects against the party to the marriage who had converted to Islam. This amendment resolved the confusion pertaining 7.1 Can the custodial parent move to another state/ to the jurisdiction of the civil courts vis-à-vis the Syariah country without the other parent’s consent? courts, thereby overriding past judicial trends which had taken the position that matters touching Islamic law and Yes, unless the court order granting sole custodial rights to the practice are within the jurisdiction of the Syariah courts to custodial parent prohibits it. the exclusion of the civil courts;

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(b) a mother/adoptive mother of a child who has not attained concerns about that other parent’s ability to take proper the age of 21 may now give written consent for the child health and safety precautions or to provide adequate to marry. Prior to this, only the father could give consent educational support to their child/ren; where the child was legitimate, and where the child is ille- (f) there has been a surge in married couples seeking divorce gitimate or adopted, the mother/adoptive mother’s consent and pre-divorce advice; could only be given if the father/adoptive father had died; (g) cases of domestic violence have escalated. Women’s rights (c) either party or both parties to a marriage may now petition groups in Malaysia have reported an increase in distress for divorce, where one of them has converted to Islam. calls amid lockdown; and Before, only the non-converting spouse could petition. (h) the pandemic has also triggered more and more people to Furthermore, they may now petition for divorce by mutual write their wills. consent on the grounds of conversion; It is anticipated that the impact felt to date will continue over (d) a new section 51A of the LRA makes provision for the the next year, to a greater or lesser degree in certain cases. following persons to apply for a distribution of the matrimonial assets of a person who has converted to Islam but 8.3 To what extent and how has the court process and who dies before the non-Muslim marriage is dissolved: (i) other dispute resolution methods for family law been the surviving spouse of the deceased; (ii) the surviving adapted in your jurisdiction in light of the COVID-19 children of the marriage, if any; and (iii) the parents of the pandemic (e.g. virtual hearings, remote access, deceased converted spouse. Prior to this, the non-con- paperless processes)? Are any of these changes likely to verted family members could not inherit from the remain after the COVID-19 crisis has passed? converted spouse’s estate unless he/she had bequeathed his/her assets to his/her non-Muslim family members; This section discusses how the Malaysian courts in general have (e) the court’s power to divide matrimonial assets under adapted. The MCO at its most restrictive required all law firms section 76 of the LRA is no longer confined to assets and court premises in Malaysia to close. As a consequence, all acquired by the “joint” efforts of the parties but now hearings and trials as well as case managements that required the extends to all assets acquired during the marriage; and physical attendance of lawyers in court were adjourned. New (f) the duration of child custody and maintenance orders cases, notices of appeals and documents could still, however, be with regard to a child who is pursuing higher education filed electronically using the e-Filing system, which was imple- or training is now extended from age 18 until the child mented over a decade ago under the e-Court system, and case completes his or her higher education or training. managements scheduled to be conducted remotely proceeded In 2019, collaborative law was introduced. as normal via the more recently introduced e-Review system. Thus, when the pandemic hit, the Malaysian courts were already 8.2 What impact, if any, has the COVID-19 pandemic quite prepared to progress cases remotely, and a number of hear- had on family law in your jurisdiction to date, and is ings, trials and appeals have been conducted via video confer- likely to have over the next 12 months? ence, some of which were streamed live for public viewing. Courts and law firms have since been permitted to re-open, In an effort to curb the spread of COVID-19, various Movement with strict health and safety measures in place. Fewer cases Control Orders (MCO) (varying in severity) were imposed in are now fixed on any given day and limits are imposed on the Malaysia under the Prevention and Control of Infectious number of persons who may be present in court per case, to Diseases Act 1988 and the Regulations issued thereunder. At avoid over-crowding. its most confining nationwide, all schools and government and Due to its efficiency, online access to justice may well remain an option available even after the COVID-19 crisis is behind private premises were ordered to shut and everyone had to stay us. Currently, they require the agreement of all parties – judges, at home unless they needed to buy groceries, seek medical treat- lawyers and litigants alike – to proceed, not all of whom may be ment or perform any official duty or any duty in relation to any receptive to it or have access to the equipment and technology essential services. Restrictions have since been relaxed to allow that it entails. Proposals have been made suggesting amend- most economic sectors to re-open, though, as at the date of ments to the legislative framework to enable the court, of its writing (June 2020), Malaysia’s borders remain shut. own motion, to direct trials, hearings or appeals to be conducted The pandemic has had the following impact: otherwise than in open court, provided it is in the interest of (a) all hearings and trials during the MCO period were public health and safety. adjourned; (b) the solemnisation of all marriages was put on hold; (c) separated or divorced parents who live in one country or in 8.4 What are some of the areas of family law which you one state within Malaysia and who had planned to exercise think should be looked into in your jurisdiction? their rights of access to their children in another country or state were unable to do so due to international and inter- In my view, the following should be addressed: state travel bans and health and safety concerns; (a) stateless children in Malaysia who have been adopted by (d) the loss of jobs or reduction in income has in some cases Malaysian parents, or one Malaysian parent, are not auto- totally eliminated or reduced the ability of the spouse/ matically conferred Malaysian citizenship upon adoption. parent against whom the financial orders were made, to They therefore remain stateless unless an application for meet those financial obligations. It has also affected finan- citizenship is made to the government of Malaysia who cial negotiations between divorcing spouses on mainte- retains a discretion to grant or refuse it; nance and asset distribution; (b) the law regulating surrogacy in Malaysia needs to be (e) separated/divorced parents are seeking advice on how to developed; navigate the thorny issue with respect to the movement (c) Malaysia has not ratified the Hague Convention; of their child/ren between two households pursuant to (d) civil partnerships are not recognised; and agreed child access arrangements disrupted by the MCO, (e) same-sex relationships and marriages are not recognised. and some parents are reluctant or refusing to allow their The Malaysian Penal Code still criminalises same-sex child/ren to see or stay with the other parent due to relations.

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Ezane Chong is a graduate of the University of Leeds (UK), a Barrister-at-Law (England & Wales) and an Advocate & Solicitor of the High Court of Malaya. She is a partner at Ariff Rozhan & Co, and has been practising law in Malaysia for 19 years, focusing primarily on family law and private client work. She is a Fellow of the International Academy of Family Lawyers, has given evidence as an expert on Malaysian family law for the English courts on a number of occasions and authored several articles on family law. She has received numerous legal awards and acted in a variety of reported cases in Malaysia and England, including the “titanic” ligation of Chai v Peng and Others [2017] EWHC 792 (Fam). Ezane is fluent in both Bahasa Malaysia and English.

Ariff Rozhan & Co Tel: +60 364 11 4000 L-6-1, No.2, Jalan Solaris Email: [email protected] Solaris Mont’ Kiara URL: www.arc.partners 50480 Kuala Lumpur Malaysia

Ariff Rozhan & Co (ARC) is a dispute resolution firm established in 2015. ARC’s partners were all former partners in two of Malaysia’s largest law firms. Partners and lawyers in ARC have been involved in a plethora of cases for local and international clients, involving complex, novel and dynamic issues of law and many cases conducted by team ARC have been reported in Malaysian and International Law Reports. ARC is also ranked and recommended by many legal publications such as The Legal 500 Asia Pacific (2017, 2018, 2019 and 2020), Asialaw Profiles (2017, 2018, 2019 and 2020) and Benchmark Litigation (2018, 2019 and 2020) as a Leading or Highly Recommended Firm. In 2019, ARC won the Asian Legal Business Matrimonial and Family Law Firm of the Year Award (Malaysia) and has been nominated (results yet to be announced) for the same award in 2020. www.arc.partners

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Netherlands Netherlands

Marjet Groenleer

Thijs Sarneel

GMW lawyers Dylan Bertsch

1.2 What are the grounds for a divorce? For example, 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. is there a required period of separation, can the parties have an uncontested divorce? Yes, unless children are involved. If this is the case, the parents Irretrievable breakdown of the marriage is the only ground for must submit a parenting plan when filing the petition for divorce divorce. The question of who is to blame, the reason for the and, if they fail to do so, explain the reasons for their failure to divorce, a waiting period and compulsory attempts at reconcili- do so. The decision of the court will, if necessary, replace the ation do not play a role. parenting plan. If one of the spouses claims that the marriage has irretrievably broken down, the divorce is pronounced. It is not possible 1.6 Are foreign divorces recognised in your jurisdiction? to put forward a defence, unless the defending spouse demon- If so, what are the procedural requirements, if any? strates that an existing prospect of a surviving dependant’s pension is lost as a result of the divorce. In that case, a provision Yes. If the divorce has taken place in a Member State of the must first be made for this. An uncontested divorce is possible. European Union, it is automatically recognised without any

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proceedings. The Divorce Decree is accompanied by a form of 1 January 2018, only property acquired during the marriage especially for this purpose, which makes it easy to register the is included in the marital community of property. Gifts and divorce in Member States of the European Union. inheritances are not generally part of the limited community of If the divorce has taken place in a non-Member State of the property. European Union, the divorce will be recognised if the jurisdic- In principle, spouses and future spouses are free to derogate tion of the foreign court or other authority that pronounced the from the legal system by setting out their property relationship divorce is based on an internationally accepted ground of juris- and mutual obligations in a prenuptial agreement. diction and the proper administration of justice has taken place. If the spouses have not requested a ruling from the court Proceedings are not necessary. Registration of the divorce in on the property, the court may pronounce the divorce without the registers of the Civil Registry requires a bit more paper- considering the settlement of the matrimonial property. If the work than recognising a divorce from a Member State of the spouses, however, do request a ruling on the property, the court European Union. will have to decide on that. The spouses may request a ruling on the distribution and set-off in the divorce proceedings in the form of ancillary relief. In that case, the court is obliged to rule 1.7 Does your jurisdiction allow separation or nullity in the divorce proceedings. proceedings?

2.3 How does the court decide what financial orders to Yes. A legal separation is possible. Traditionally this was for make? What factors are taken into account? religious reasons. The marriage continues to exist, but the consequences are very similar to those of a divorce. There are a number of limited grounds on which the nullity of The court will only make a decision if the spouses, or at least a marriage can be invoked, for example if there is a ‘marriage of one of them, submits a request to that effect. The court will not convenience’ or a spouse was not compos mentis at the time of the issue a financial order of its own motion. solemnisation of the marriage. 2.4 Is the position different between capital and maintenance orders? If so, how? 1.8 Can divorce proceedings be stayed if there are proceedings in another country? In both cases, the court will only issue an order at the request of the spouses. No. The ‘first shot rule’ is the main rule. If an application for The legal ‘default’ regime and/or any prenuptial agreement divorce has been made in a country other than the Netherlands, lead the property law settlement. the Dutch court must decline jurisdiction. In the case of maintenance orders, the law gives the starting points, which are elaborated by ‘alimony standards’. These 22 Finances on Divorce standards set out alimony calculation rules, based on the actual financial position of the spouses. 2.1 What financial orders can the court make on divorce? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? The court can issue both final financial orders by way of ancillary relief, which means in addition to the divorce itself, and If the spouses agree on the financial consequences of the divorce temporary financial orders by way of injunctive relief. then, in principle, a court order is unnecessary. In general, if the By way of ancillary relief, the court may issue a financial spouses do request the court to record the agreement in a court order for: order, they do not have to appear in court. ■ the settlement (distribution or set-off) of the (marital) property; ■ partner alimony; 2.6 How long can spousal maintenance orders last and ■ child support; and are such orders commonplace? ■ pension entitlements. As injunctive relief, the court may issue a financial order for: Spousal maintenance orders are common in instances where ■ temporary partner alimony; and there is inequality of income. ■ temporary child support. Spousal maintenance orders imposed by way of injunctive relief are valid for the duration of the divorce proceedings. Due to a recent change in the law, different periods apply to 2.2 Do matrimonial regimes exist and do they need to final spousal maintenance orders. The new law means that these be addressed by the court on divorce? Is there a default matrimonial regime? different periods apply to requests submitted after 1 January 2020. These are the main rules: Marriage of less than 10 years: Yes, Dutch law has a legal ‘default matrimonial regime’. A recent (a) The alimony obligation ends after a period equal to half change in the law creates a clear dichotomy: the duration of the marriage. ■ marriages entered into before 1 January 2018 are subject to Marriage of between 10 and 15 years: the general community of property; and (b) The alimony obligation ends after a period of five years. ■ marriages entered into after 1 January 2018 are subject to Marriage longer than 15 years: the limited community of property. (c) If the spouse entitled to receive alimony will reach state Before 1 January 2018, both premarital property and prop- pension age within 10 years, then the alimony obliga- erty acquired during the marriage, including gifts and inher- tion will end when the spouse entitled to receive alimony itances, were considered part of the community of property. As reaches state pension age.

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(d) If the spouse entitled to alimony will not reach state For example, in the case of a request to determine an alimony pension age within 10 years and was born on or before 1 obligation, the Dutch court will in principle have jurisdiction if January 1970, the alimony obligation will end after 10 years. the spouse (or child) entitled to alimony has his or her habitual (e) If the spouse entitled to alimony will not reach state residence in the Netherlands. This applies even if the divorce pension age within 10 years and was born after 1 January has been pronounced elsewhere or the divorce proceedings have 1970, the alimony obligation will end after five years. been or are being conducted elsewhere. For all scenarios (a to e), by way of derogation from the time limits mentioned above, the obligation does not end before the youngest child (if there are children) reaches the age of 12. 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 2.7 Is the concept of matrimonial property recognised in your jurisdiction? Spouses may request a (lawyer)-mediator prior to or during divorce proceedings. In general, the court will encourage settle- The concept of matrimonial property is recognised in the ment attempts between spouses and will also offer the spouses Netherlands. Property acquired under the default regime is the option of mediation and facilitate this to a certain extent. considered matrimonial property if there is no deviation from Mediation is always on a voluntary basis. this in a prenuptial agreement. This does not detract from the fact that the property has been acquired or financed by one of the spouses or by the spouse 32 Marital Agreements in whose name it is registered. Although such circumstances may be relevant to the method of allocation, distribution and 3.1 Are marital agreements (pre- and post-marriage) determination of any claims between the spouses, the entitle- enforceable? Is the position the same if the agreement is ment of both spouses to the property derives from the matrimo- a foreign agreement? nial property regime. In principle, marital agreements (pre- and post-marriage) are 2.8 Do the courts treat foreign nationals differently on binding in the Netherlands if and insofar as the applicable divorce? If so, what are the rules on applicable law? Can formal requirements have been complied with. The most the court make orders applying foreign law rather than important requirement is that prenuptial agreements must be set the law of the jurisdiction? out in a notarial deed. The presence or prior advice of lawyers when entering into prenuptial agreements is not required in the Foreign nationals will not be treated differently from Dutch Netherlands. nationals by the court. The substance of the agreement is subject to general contrac- The Dutch court may apply foreign law. Which law is appli- tual restrictions and, for example, provisions contrary to public cable depends on the subject matter (the divorce itself, assets, morality, the law or public order are automatically null and void. maintenance, pension) and the referral factors (choice of law, The validity of the foreign prenuptial agreement depends on nationality and habitual residence). the nature and substance of the foreign agreement and/or the regulations of the country where it was concluded. 2.9 How is the matrimonial home treated on divorce? 3.2 What are the procedural requirements for a marital The court can grant one of the spouses the use of the property agreement to be enforceable on divorce? to the exclusion of the other, independently of ownership. Such a measure may be granted as injunctive relief for the duration of (Prospective) spouses can only deviate from the ‘default’ legal the divorce proceedings and as ancillary relief for a period of six provisions by prenuptial or postnuptial agreements. This can be months after the divorce has become final. done before or during the marriage. In the settlement of the matrimonial property, the allocation of the matrimonial home will depend on: the entitlement of the Prenuptial or postnuptial agreements must be entered into by spouses to the home; the extent to which the spouses are able to notarial deed under penalty of nullity. finance the allocation of the home; the well-being of the children (if any); and the interests of the spouses. 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election 2.10 Is the concept of “trusts” recognised in your of the matrimonial property regime? Can they deal jurisdiction? If so, how? with financial claims regarding children, e.g. child maintenance? The Netherlands is a party to the Hague Trust Convention (Convention on the Law Applicable to Trusts and on their In prenuptial agreements, spouses can not only choose the Recognition). In general terms, trusts are therefore recognised in the Netherlands. marital property regime of their choice, but both spouses can also set out additional rights and obligations whereby, in principle, they are entitled to ‘freedom of contract’. However, agree- 2.11 Can financial claims be made following a foreign ments in prenuptial agreements concerning alimony obligations divorce in your jurisdiction? If so, what are the grounds? are currently considered to be ‘null and void’ and are therefore not taken into account. The Dutch court may have jurisdiction to hear and rule on a particular claim that follows from or is made during foreign divorce proceedings.

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42 Cohabitation and the Unmarried Family 5.2 How is child maintenance calculated and is it administered by the court or an agency?

4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the Child support is calculated on the basis of a child’s needs (costs), grounds to make a financial claim? the financial capacity of the parents and the division of care. The needs of a child depend on the income of the parents The applicable law concerning spouses does not extend to during the time they were together and the number of chil- cohabitants. Claims can only be made against each on the dren in the family. The needs are determined on the basis of general grounds of Dutch civil law. There are no specific rules the Nibud (National Institute for Family Finance Information) for cohabitants. tables. However, financial claims may arise on the basis of a cohab- The children’s needs are divided among the parents in propor- itation contract and/or tacit agreements entered into volun- tion to their financial capacity. The financial capacity is calcu- tarily. Finally, claims may arise due to connectedness through lated with formulas developed for this purpose on the basis of common assets that are held jointly by the cohabitants. the current income of the parents. Depending on the division of care, a care reduction is applied; by caring for a child part of the time, a discount is applied to the 4.2 What financial orders can a cohabitant obtain? child support payable. If the parents are unable to reach agreement, the court will Possible financial orders are: determine the child support at the request of one of them. The ■ child support (if the couple has children); court is the only authority that can impose child support. ■ financial orders based on agreements, whether contractual or tacit, that have been entered into jointly; and 5.3 For how long is a parent required to pay child ■ financial orders regarding common property, such as a maintenance or provide financial support for their house. children? For example, can a child seek maintenance during university?

4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? Each parent is legally obliged to provide for the living and study costs of their adult children up to the age of 21. After that age, a There are three formal relationships in the Netherlands: 1) parent is only obliged to provide for the costs of living and study marriage, 2) registered partnership; and 3) cohabitation contract. if the parents have agreed this in writing in a parenting plan or A registered partnership is equivalent to a marriage, while a in exceptional circumstances at the time of separation. cohabitation contract is quite different and has no marital status consequences. 5.4 Can capital or property orders be made to or for the benefit of a child?

4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? No, such orders cannot be made.

Registered partnerships were created in 1998 mainly because 5.5 Can a child or adult make a financial claim directly it was not possible for gay couples to get married. This gave against their parents? If so, what factors will the court same-sex couples the opportunity to give their relationship the take into account? same legal status as married heterosexual couples. Incidentally, it is also possible for heterosexual couples to enter into a regis- Yes. From the age of 18, children have a direct claim to support tered partnership. from their parents and they can independently claim this. On 1 April 2001, it also became possible for same-sex couples In this case too, need, financial capacity and possible division to marry. The Netherlands was the first country to introduce of care are factors (see question 5.2). The income of a child who this. is older than 18 years does not play a role, unless his/her income Finally, the cohabitation contract is also an option for is exceptionally high. same-sex couples. 62 Children – Parental Responsibility and 52 Child Maintenance Custody

5.1 What financial claims are available to parents on 6.1 Explain what rights of custody both parents have in behalf of children within or outside of marriage? your jurisdiction, whether (a) married, or (b) unmarried?

After a divorce or termination of the relationship, each parent When parents are married, they automatically have joint custody with custody can file a financial claim with the other parent who of their child. When parents are not married, the mother auto- may or may not have custody for child support. If the parents matically has sole custody of the child. The father may apply for are unable to reach agreement, it is possible for each parent with joint custody with the mother’s consent. If the mother does not custody to submit an application for child support to the court. give her consent, it is possible for the father to apply for joint A step-parent has a duty to support his/her step-child if the custody in court. The starting principle is that there is joint step-parent is married to one of the parents and the step-child is custody. A request by the father for joint custody will, in prin- part of the family of the step-parent and this parent. ciple, be granted.

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When the parents have joint parental custody, it is possible 6.7 Is there a presumption of an equal division of time for both of them to apply for sole parental custody. Since joint between separating or divorcing parents? custody is the starting principle, such requests are only granted sporadically. In 2009, the principle of equal parenthood was enshrined in law. A parent who has custody of a child has to take care of and The background to this is that it is in the child’s interest to have raise the child. In addition, the parent with custody can make contact with both parents. However, equal parenthood should important decisions, such as enrolling the child at a school or not be automatically translated into an equal division of care/ consenting to medical treatment. co-parenting. There are various factors involved (see also ques- Guardianship is something other than custody. Guardianship tion 6.5), which require customisation. An important factor is authority exercised over a child by someone other than the is the division of care during the parents’ relationship. If, for parents. For example, if the parent or parents have died or if the example, there was a traditional role pattern in which one parent custody of the parent or parents has been terminated by the court. worked and the other parent took care of the children, it is not realistic to expect a care arrangement with an equal division. 6.2 At what age are children considered adults by the court? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on Children are considered adults by the court from the age of 18. separation or divorce?

6.3 What is the duration of children orders (up to the Yes, unmarried and married parents are treated equally. age of 16 or 18 or otherwise)? 6.9 Is a welfare report prepared by an independent Children orders last until the age of 18. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge?

6.4 What orders can the court make in relation to In principle, a decision is taken by the court without involving children? Does the court automatically make orders in relation to child arrangements in the event of divorce? third parties. Children from the age of 12 are always heard by the court. More and more children under the age of 12 are also heard by In the case of a divorce, there is a legal obligation for parents to the court. draw up a parenting plan. A divorce cannot take place without a If the court considers that it does not have sufficient infor- parenting plan. If the parents fail to agree on a parenting plan, mation to make a decision about a child, it can consult an inde- the court will take a number of decisions about the children in pendent professional (the Child Protection Board) for advice. the event of divorce. The subjects that are most discussed are: The court usually attaches considerable value to such advice. custody; main residence; access arrangements; relocation; and child support. The court also has jurisdiction to take such decisions regarding 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a the children outside divorce proceedings. lawyer?

6.5 What factors does the court consider when making In principle, no. This is only the case if a child has a conflict orders in relation to children? with his/her parents. In that case, a special guardian may be appointed. The special guardian then represents the interests of The most important factors are: the child. The court may appoint a special guardian if it deems ■ the best interests of the child; this necessary in the interests of the child. The parents or the ■ the division of care during the relationship; the court child himself/herself may also request a special guardian. attempts to align the order to the situation that existed In addition, the child has an informal right to bring legal during the relationship; and proceedings. It is possible for children to submit a request to ■ practical matters and circumstances, such as working the court. Which requests may be made depends on the age of hours, place of residence, etc. the child.

6.6 Without court orders, what can parents do 6.11 Do any other adults have a say in relation to the unilaterally? For example, can they take a child abroad? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to When two parents have joint custody, responsibility for daily children? care and related decisions lies with the parent that the child is with. Important decisions (see question 6.1) require the consent No, because in principle other adults do not have custody. If of both parents. It is therefore not possible to take a child other adults, such as step-parents and grandparents, want to abroad without the consent of the other parent. interact with the child, they can coordinate this with the child’s In the case of sole custody, it is possible for the parent who parents. If the parents of the child do not agree, it is possible for has custody to make both the daily decisions and the important step-parents and grandparents to apply to the court for a visita- decisions. This means that this parent can take the child abroad tion arrangement. without the consent of the other parent. However, the parent Disputes about the children can be resolved with the help of a with sole custody must inform the parent without custody. mediator, a joint lawyer, two lawyers or the court.

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72 Children – International Aspects 7.6 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention? 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? Yes. In order to comply with the obligations of the Hague Convention, the Netherlands has separate procedural regula- No, not if the other parent (also) has custody. tions for (incoming) abduction cases that function well. A court hearing will take place within 14 days of receipt of an application 7.2 Can the custodial parent move to another part of for the return of a child. This is followed, if the parents agree, by the state/country without the other parent’s consent? cross-border mediation using the pressure-cooker method within 14 days. If the parents are unable to reach an overall agreement, a hearing will follow within 14 days of the cross-border media- No, not if the other parent (also) has custody. tion, followed by the ruling 14 days later. The appeal period is two weeks. A hearing will take place within 14 days of the appeal 7.3 If the court is making a decision on relocation of a being lodged and a ruling will be made 14 days later. child abroad, what factors are taken into account? 82 Overview The court will take into account: ■ the best interests of the child; 8.1 In your view, what are the significant developments ■ the rights and interests of the relocating parent to relocate in family law in your jurisdiction in the last two years? and the freedom to rearrange her/his life; ■ the need to relocate; As of 1 January 2018, the default matrimonial property regime ■ the extent to which the relocation has been thought out has been changed in the sense that the general community of and prepared; property has been replaced by the restricted community of ■ the alternatives and measures offered by the relocating property (see question 2.2). parent to mitigate and/or compensate for the conse- As of 1 January 2020, the duration of spousal support has quences of the relocation for the child and the parent been shortened. It used to be 12 years. The duration has now remaining behind; been reduced in general terms and may vary from case to case ■ the extent to which the parents are able to communicate (see question 2.6). and consult with each other; On 29 January 2019, the Matrimonial Property Regulation ■ the rights of the parent remaining behind and the child (Regulation (EU) 2016/1103) entered into force. As of that date, to maintain contact with each other in their familiar the grounds of jurisdiction for the Dutch courts in matrimo- environment; nial property cases have been regulated internationally instead of ■ the division of care tasks and the continuity of care; nationally. The applicable law for spouses married after 29 January ■ the frequency of contact between the child and the parent 2019 is now governed by the Regulation’s choice-of-law rules. remaining behind before and after the relocation; ■ the age of the child, his/her opinion and the extent to 8.2 What impact, if any, has the COVID-19 pandemic which he/she has roots in his/her environment; and had on family law in your jurisdiction to date, and is ■ the extra costs of access after the relocation. likely to have over the next 12 months?

7.4 If the court is making a decision on a child moving The COVID-19 pandemic has not had an impact on the content to a different part of the state/country, what factors are of the legislation, but it has on the processes and in practice. See taken into account? the answer to question 8.3.

See the answer to question 7.3. 8.3 To what extent and how has the court process and other dispute resolution methods for family law been 7.5 In practice, how rare is it for the custodial parent to adapted in your jurisdiction in light of the COVID-19 be allowed to relocate internationally/interstate? pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to remain after the COVID-19 crisis has passed? If the other parent does not give his/her permission for the relocation, it is possible to request substitute consent from the court. COVID-19 has caused major delays because most hearings have However, it is difficult to be awarded substitute consent by the been postponed. The court registry did remain open. This court for a relocation. If the relocation is international, this is means that joint applications for divorce are being settled in the all the more true. The necessity for the relocation plays a crucial usual way and cause list entries and administrative tasks are being role. Homesickness for the country of birth combined with not carried out. Virtual hearings were held in urgent cases. These being integrated in the Netherlands is usually insufficient. The did not always run smoothly due to technical defects. These longer a family is settled in the Netherlands, the more difficult virtual hearings will continue until further notice. Virtual hear- it becomes to get consent to relocate. Generally speaking, the ings are unlikely to be held in the longer term. The number greater the role of the parent left behind in the life of the chil- of physical hearings is increasing, but it will take a long time dren, the less chance the relocating parent has of being allowed before the backlog has been caught up with. In all cases where to relocate. The court then considers that the loss of the rela- a hearing is necessary, the spouses were asked to complete the tionship with the non-relocating parent is contrary to the well- proceedings in writing and the spouses could then indicate their being of the child. own views on the matter. It is likely that more use will be made of this option after COVID-19.

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8.4 What are some of the areas of family law which you international instruments has arisen, particularly in the area think should be looked into in your jurisdiction? of child-related matters, which do not work in practice. More cohesion would be desirable. Within Dutch family law, we would ask to change the law stip- International family law in the Netherlands is increasingly ulating that the unmarried father of a child does not automati- governed by European regulations. This does not only concern cally obtain custody upon recognition. We feel the unmarried Dutch jurisdiction, but also the jurisdiction of other Member father should have custody automatically. States. This makes it difficult to answer this question. Partly as a result of these European regulations, a patchwork of

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Marjet Groenleer has a vast experience in family law, focusing on divorce cases. She has a particular interest in the international aspects of family law and in multi- or cross-jurisdictional cases, subjects she has published numerous articles about. Marjet is a member of the International Academy of Family Lawyers, as well as a trained and accredited divorce mediator with the vFAS (Dutch Association of Family mediators and lawyers). She has worked as a lecturer in International Private Law at Leiden University and currently holds a position as a deputy judge in the family law department of the Court of Appeals in Amsterdam.

GMW lawyers Tel: +31 70 361 5048 Scheveningseweg 52 Email: [email protected] 2517KW Den Haag URL: www.gmw.nl Netherlands

Thijs Sarneel obtained his LL.M. from Leiden University and an M.A. from the University of Utrecht before being admitted as an attorney in The Hague. He specialises in family law and the law of succession, publishing in journals in both fields, and is a member of the FJR (association for family and child law). His clients typically comprise entrepreneurs and expats with particular concerns over financial settlements, (family) businesses and cross-jurisdictional issues.

GMW lawyers Tel: +31 70 361 5048 Scheveningseweg 52 Email: [email protected] 2517KW Den Haag URL: www.gmw.nl Netherlands

Dylan Bertsch received his LL.M. from Leiden University after studying law in both Leiden and at UC Hastings College of the Law in San Francisco. Practising law as an attorney in The Hague, Dylan specialises in family law with a focus on international divorces and maintenance cases, paying particular attention to the interest and position of children. Dylan regularly publishes in professional journals and is a member of the FJR (association for family and child law).

GMW lawyers Tel: +31 70 361 5048 Scheveningseweg 52 Email: [email protected] 2517KW Den Haag URL: www.gmw.nl Netherlands

GMW lawyers is an innovative law firm in The Hague, known for its committed and no-nonsense approach. For over 30 years, GMW lawyers has helped international and local individuals, organisations and companies to solve their legal problems. With experts in multiple areas of law, its team of around 30 lawyers provides a comprehensive range of services. GMW lawyers is specialised in employment and pension law, corporate and insolvency law, family and succession law, property and tenancy law, liability law, discrimination law and immigration law. The department of Family Law is among the largest of the (family) law firms in the Netherlands, currently with 11 specialised lawyers. www.gmw.nl

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Singapore Singapore

Chia Wong Chambers LLC Wong Kai Yun

12 Divorce 1.4 What is the procedure and timescale for a divorce?

1.1 What are the grounds of jurisdiction for divorce Generally, the plaintiff files a writ for divorce and other accom- proceedings? For example, residence, nationality, panying papers to initiate divorce proceedings. domicile, etc.? If there is no agreement reached before the plaintiff files a writ for divorce, then the defendant will need to file a memorandum In respect of non-Islamic marriages, Singapore’s courts have of appearance within eight days, indicating whether he/she wishes jurisdiction for divorce proceedings, judicial separation or nullity to contest the divorce (r 54, FJR). If the divorce is contested, of marriage where one of the parties is either (a) domiciled in parties will have to file various pleadings, followed by Affidavits of Evidence-in-Chief, respond to requests for discovery of docu- Singapore at the start of proceedings, or (b) habitually resident in ments and/or interrogatories, and proceed to a trial with cross-ex- Singapore for a period of three years immediately before the start amination of witnesses for the court to make a determination on of proceedings (s 93(1), Women’s Charter, “WC”). whether to grant an Interim Judgment dissolving the marriage. In proceedings for nullity of marriage on the ground that a There would also be case conferences (r 23, FJR), counselling and/ marriage is void or voidable, the court can, even where neither or mediation (r 174, FJR) involved in the process. A contested of the two requirements above are fulfilled, grant relief in cases divorce typically takes about nine months to a year to proceed to where both parties reside in Singapore at the time that the trial. Of course, the divorce could be settled on an uncontested proceedings are commenced (s 93(2), WC). basis at any point in time if parties agree. In addition, the court only has jurisdiction for divorce Where the parties have agreed from the outset (a) that the proceedings if the writ for divorce is filed at least three years divorce proceedings will proceed on an uncontested basis, and (b) from the date of marriage (s 94(1), WC). The exceptions to on all ancillary matters, they may apply for the divorce proceed- this rule are where there are grounds of “exceptional hardship” ings to be heard by the court within 10 days after the date of suffered by the plaintiff or “exceptional depravity” on the part setting down (the “uncontested simplified hearing track”) (r 83, of the defendant (s 94(2), WC). FJR). The court may, with the consent of all parties, make orders in the terms agreed without the parties’ attendance (r 670, FJR). 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties 1.5 Can a divorce be finalised without resolving other have an uncontested divorce? associated matters? For example, children and finances.

A party may only file for divorce if there is an “irretrievable break- After the granting of an Interim Judgment, a divorce may only down” in the marriage (s 95(1), WC). This is proved by one of five be finalised after the hearing of all claims for ancillary relief, facts (s 95(3), WC), paraphrased as, namely, adultery, unreasonable such as children and finances, has been concluded at first behaviour, desertion for at least two years, separation for at least instance unless leave of court is otherwise granted (r 96(3), FJR). three years with consent, or separation for four years. There is no required period of living apart for grounds of adultery and unreasonable behaviour. Parties may choose not 1.6 Are foreign divorces recognised in your to contest the proceedings regardless of the grounds relied upon jurisdiction? If so, what are the procedural requirements, if any? above.

The recognition of foreign matrimonial decrees is governed 1.3 In the case of an uncontested divorce, do the entirely by common law principles. A court application may be parties need to attend court and is it possible to have a made to the Singapore courts to recognise a foreign matrimo- “private” divorce, i.e. without any court involvement? nial decree on the grounds of international comity if it originates from a court of competent jurisdiction and is not otherwise It is not possible to have a “private” divorce without court impeached for fraud, breach of natural justice or contraven- involvement. However, the court may dispense with the need tion of the fundamental public policy of the forum (Ng Sui Wah for the parties to attend court if it is to proceed on an uncon- Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111; Ho Ah tested basis (r 81, Family Justice Rules, “FJR”). Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485; Yap Chai Ling and another v Hou Wa Yi [2016] 4 SLR 581).

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1.7 Does your jurisdiction allow separation or nullity towards acquiring, improving or maintaining the matrimonial proceedings? property, and to the welfare of the family. In practice, we loosely categorise all contributions towards the acquisition of the matrimonial assets as either “direct financial contributions” or “indi- Yes, see question 1.1 above. rect financial/non-financial contributions”. The court generally takes a “global assessment approach” by first identifying the 1.8 Can divorce proceedings be stayed if there are matrimonial pool of assets, then ascribing a ratio representing proceedings in another country? the parties’ direct contributions relative to each other, followed by ascribing a ratio representing the parties’ indirect contribu- Yes, divorce proceedings in Singapore may be stayed in favour tions (non-financial or indirect financial contributions) relative of a foreign court on the ground of forum non conveniens unless to each other, and finally averaging both the direct and indirect substantive justice will be denied by the stay of proceedings. contributions to determine each party’s share of the matrimonial This will be assessed by the courts based on the rules in Spiliada pool (ANJ v ANK [2015] SGCA 34). Where there are multiple Maritime Corporation v Cansulex Ltd [1987] AC 460 to show that classes of assets within the matrimonial pool and parties have there is another forum that is clearly or distinctly more appro- made varying degrees of contributions within each asset class, priate than Singapore to determine the divorce (for example, in the court may opt to apply a “classification approach” which VH v VI [2008] 1 SLR(R) 742). allows the court to ascribe a different distribution ratio for each asset class (AYQ v AYR [2013] 1 SLR 476). With respect to 22 Finances on Divorce spousal and child maintenance, the courts take into account the factors listed in s 114(1), such as the income, earning capacity, property and other financial resources which each of the parties 2.1 What financial orders can the court make on has or is likely to have in the foreseeable future, the parties’ divorce? standard of living and their ages (ss 114(1), 127(2), WC). Different policy considerations underlie spousal and child The court is empowered, when granting a judgment of divorce, maintenance. The court’s power to order spousal maintenance to order the division of matrimonial assets in such proportion is supplementary to its power to order a division of matrimonial as is just and equitable (s 112(1), WC). The court is also empow- assets. There may be no order for maintenance for the former ered to make orders for maintenance for the wife, incapacitated wife if, from the division of matrimonial assets, there is a sum husband and children of the marriage (ss 113, 127, WC). which, if invested properly, would be sufficient to maintain the With respect to the division of matrimonial assets, the court wife (TNL v TNK [2017] SGCA 15; BOR v BOS [2018] SGCA 78 may make any order necessary or expedient to effect the divi- cf. UTQ v UTR [2019] SGHCF 13). It should be noted that the sion, which includes making an order for sale, vesting any asset court has held that even nominal maintenance (i.e. $1 monthly owned jointly by the parties in both the parties in common in maintenance) for a former wife is not to be awarded automat- such shares as the court deems just, vesting any asset or any part ically or as a matter of course (ATE v ATD [2016] SGCA 2). thereof in either party, ordering for any asset to be held in trust on such terms as may be specified in the order, and ordering payment of money by one party to the other party (ss 112(3), 2.4 Is the position different between capital and maintenance orders? If so, how? 112(5), WC). An example of a “necessary or expedient” conse- quential order includes ordering a spouse who has exercised the option of taking over a matrimonial property to bear the mort- The WC requires the court to take into account all the circum- gage and property tax payments from the date of the court order stances of the case whether in making orders for division of (TIC v TID [2018] SGCA 75). matrimonial assets or for maintenance orders, although the With respect to maintenance orders, in addition to the typical principles and the specific factors between the two differ. orders of payment of a lump sum or periodical payments, the Broadly speaking, the division of matrimonial assets is aimed to court may provide for an attachment of earnings order, or be “just and equitable” (s 112(1), WC) in light of parties’ respec- require security for the maintenance by vesting property in trus- tive contributions towards the marriage, while maintenance tees upon trust to pay the maintenance out of the income of the is aimed at preserving the wife’s standard of living during the property (ss 81, 115, WC). marriage (s 114(2), WC).

2.3 How does the court decide what financial orders to 2.6 How long can spousal maintenance orders last and make? What factors are taken into account? are such orders commonplace?

To determine the appropriate order to make, the court takes into If the maintenance is for a lump sum, it is intended to extin- account all the circumstances of the case, including certain stat- guish all further and future claims. Otherwise, if the order for utorily required factors. periodic payments is not expressed to be for any shorter period, With respect to the division of matrimonial assets, the court the order would last until either the death of the paying spouse takes into account the factors in s 112(2) of the WC, such as the (if the maintenance is unsecured), or upon the payee spouse’s contributions made by each party in money, property or work remarriage or death (s 117, WC).

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2.7 Is the concept of matrimonial property recognised determine the legal or beneficial interests in the disputed asset. In in your jurisdiction? the meantime, the ancillary proceedings to divide the matrimonial assets must be stayed (UDA v UDB [2018] SGCA 20). In any case, the court has the discretion to treat the value of Yes, all “matrimonial assets” are subject to division upon a the assets of the trust or the value of the assets expended to set up divorce (s 112(1), WC). “Matrimonial assets” are defined as the trust as a resource of the settlor/beneficiary, whether for divi- (s 112(10), WC): sion of matrimonial assets or in determining spousal maintenance ■ all assets acquired during the marriage by one or both (Marie Eileen Guin nee Fernandez v Arun Guin [1994] SGHC 157). parties to the marriage; or ■ all assets acquired before the marriage by one or both parties to the marriage: 2.11 Can financial claims be made following a foreign ■ ordinarily used or enjoyed by both parties or their chil- divorce in your jurisdiction? If so, what are the grounds? dren for shelter, transportation, household, education, recreational, social and aesthetic purposes; or Yes, financial claims following a foreign divorce may be made in ■ substantially improved during marriage by the other Singapore subject to the court’s jurisdictional requirements and party or both parties to the marriage. leave being granted, by way of Chapter 4A, Part X of the WC Assets that are excluded are those (not being a matrimo- (Tan Poh Leng v Choo Lee Mei [2014] 4 SLR 462). Although the nial home) acquired by gift or inheritance by one party at any court will consider the factors in s121F of the WC as to whether time and that have not been substantially improved during the or not it is appropriate for the Singapore court to grant relief, marriage by the other party or both parties. In this regard, the it is not necessary for the applicant to show that Singapore is court has also clarified that substantial improvement by the the more appropriate forum to grant financial relief or that all other party to the gift before it was gifted to the recipient spouse foreign remedies have been exhausted before applying to the does not constitute substantial improvement for the purposes Singapore courts (UFN v UFM and another matter [2019] SGCA of s112(10) of the WC such as to transform it into a matrimonial 54). Further, in respect of foreign maintenance orders, a asset (UEQ v UEP [2019] 2 SLR 463). person may enforce such maintenance orders under either the Maintenance Orders (Facilities for Enforcement Act) or the 2.8 Do the courts treat foreign nationals differently on Maintenance Orders (Reciprocal Enforcement Act), as appli- divorce? If so, what are the rules on applicable law? Can cable to the reciprocating country. the court make orders applying foreign law rather than the law of the jurisdiction? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, Apart from the court’s jurisdictional requirements for granting mediation, arbitration? a decree for divorce, there is no explicit rule stating that foreign nationals are to be treated differently on divorce (see question The family justice system has undergone substantial reform, 1.1) and the WC applies even in cases of divorce between two with the unified Family Justice Courts, comprising the High foreign nationals in Singapore. Court (Family Division), the Family Court and the Youth Court being established on 1 October 2014, and a judge-led approach 2.9 How is the matrimonial home treated on divorce? that came into operation on 1 January 2015. With effect from 1 October 2014, for divorce proceedings involving children (below 21 years old), it is mandatory for the A matrimonial home would be considered a “matrimonial asset” court to order the parties to attend mediation, counselling or under the WC and be placed in the pool of matrimonial assets both (s 50(3A), WC), but the court is empowered to refer the for division under Part X of the WC. However, depending on parties to attend mediation, counselling or other family support the circumstances, the home need not inevitably be sold and the programmes in other instances (s 50(2), WC). Such mediation proceeds divided. One party may retain title of the home whilst is conducted by specially appointed judge-mediators or legal reimbursing the other party for that party’s share of the matri- professionals, at the Child Focused Resolution Centre or Family monial home or have the right to occupy the home to the exclu- Resolution Chambers. With effect from 1 October 2016, the sion of the other party (s 112(5)(f), WC). courts no longer mediate in cases where assets are above a gross value of $2 million and there are no contested child issues, but 2.10 Is the concept of “trusts” recognised in your may refer such cases to private mediation. jurisdiction? If so, how? Private mediation is available through the Singapore Mediation Centre, as well as a number of organisations and individuals in Yes, trusts are recognised in Singapore. Generally, a fixed/ Singapore. The Singapore Mediation Centre also has an accred- irrevocable trust settled in favour of a third party will be left to ited Collaborative Family Practice panel. There are no rules or stand unless it was created to deprive the spouse of his/her claim systems set up for family arbitration in Singapore. to maintenance or asset division (CH v CI [2004] SGDC 131). As for a discretionary/revocable trust in favour of a third party, 32 Marital Agreements the court would exercise its discretion as to whether the trust is a matrimonial asset. The court has power to set aside the trust on 3.1 Are marital agreements (pre- and post-marriage) application under s 132 of the WC (NI v NJ [2006] SGHC 198; enforceable? Is the position the same if the agreement is AQT v AQU [2011] SGHC 138). a foreign agreement? It has recently been clarified that the Singapore Family Justice Courts do not have the jurisdiction or power to hear or determine Marital (pre- and post-nuptial) agreements are not in and of third-party claims on assets involved in divorce proceedings. themselves enforceable whether as an operation of the common Third parties or spouses must start a separate civil suit to finally law or by statute (TQ v TR [2009] 2 SLR(R) 961). However,

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for agreements concerning certain specific subject matters, the 3.3 Can marital agreements cover a spouse’s courts may take such agreements into account when exercising financial claims on divorce, e.g. for maintenance their judicial discretion if there are no vitiating factors affecting or compensation, or are they limited to the election their validity. It should also be noted that the courts have made of the matrimonial property regime? Can they deal a distinction between pre- and post-nuptial agreements in that with financial claims regarding children, e.g. child all things being equal, post-nuptial agreements would be given maintenance)? more weight as they are made after the parties have undertaken responsibilities as between each other (TQ v TR). Marital agreements can cover a spouse’s financial claims or financial claims regarding children, but the enforcement of the Foreign v Domestic Agreements terms is ultimately subject to judicial discretion (see question 3.1 Where a marital agreement is (a) a valid foreign law-governed above). agreement, (b) not contrary to Singapore’s public policy, and (c) entered into between foreign nationals, the courts would accord 42 Cohabitation and the Unmarried Family its terms with “significant (even critical) weight” (TQ v TR). In relation to other agreements which possess a domestic element, e.g. involving Singapore nationals, the weight to be accorded to 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the such agreements would depend on the facts of the case (TQ v TR). grounds to make a financial claim? Subject Matter of Agreements Agreements on child custody are prima facie unenforceable as There is no legislation that allows a cohabitant’s financial claims there is a presumption that it is in the interests of the parties and upon separation. The ordinary principles of general property law not the child. The onus is on the party asserting otherwise to would apply (Chia Kum Fatt Rolfston v Lim Lay Choo [1993] 2 SLR(R) prove it to the courts (TQ v TR). The courts’ paramount consid- 793). If the cohabiting couple subsequently gets married and then eration is the welfare of the child. The courts have power to seek a division of matrimonial assets upon divorce, the court also vary the terms of pre- and post-nuptial agreements relating to does not recognise the period of cohabitation in that the assets custody (s 129, WC). accumulated during cohabitation do not fall within the pool, save Agreements on wife and children maintenance would be where they are transformed into matrimonial assets upon satis- subject to judicial scrutiny, in particular on the adequacy of the fying the statutory provisions under s112 of the WC, and parties’ maintenance, and the courts have power to vary the terms of indirect contributions during the cohabitation are not taken into maintenance if there has been a “material change in the circum- account (USB v USA and another appeal [2020] SGCA 57). stances” (TQ v TR; ss 119 and 132). Such agreements are considered as a part of “all the circumstances of the case” (s 69(4); 4.2 What financial orders can a cohabitant obtain? AUA v ATZ [2016] SGCA 41). Agreements on the division of matrimonial assets must be taken into account by the courts in their exercise of discretion See question 4.1 above. when dividing matrimonial assets if such agreements were made in “contemplation of divorce” (s 112(2)(e); TQ v TR). Significant, 4.3 Is there a formal partnership status for cohabitants even conclusive, weight can be placed on an agreement on the (for example, civil partnerships, PACS)? division of matrimonial assets if the parties freely and voluntarily entered into the agreement with full knowledge of the relevant circumstances and matters to be considered (AUA v ATZ). No, Singapore does not have a formal partnership status for Some examples of “circumstances” in which the court may cohabitants. not uphold a nuptial agreement, notwithstanding its formal validity, include: 4.4 Are same-sex couples permitted to marry or enter (a) where there was an element of trickery or coercion used to other formal relationships in your jurisdiction? get one party to sign the pre-nuptial agreement (Chia Hock Hua v Chong Choo Je [1994] 3 SLR(R) 159); No, same-sex marriages, whether solemnised in Singapore or (b) where parties failed to give full and frank disclosure, such elsewhere, are void under the WC (s 12(1), WC). as when the husband knew or ought to have known that he would be receiving substantive stock options at the time parties entered into the pre-nuptial agreement which he 52 Child Maintenance did not disclose (AFS v AFU [2011] 3 SLR 275); (c) the pre-nuptial agreement is manifestly in one party’s 5.1 What financial claims are available to parents on favour and to the detriment of the other (TQ v TR); and behalf of children within or outside of marriage? (d) where there was variation by subsequent conduct (TQ v TR). Parents may seek maintenance for their children within and 3.2 What are the procedural requirements for a marital outside of marriage. (See question 5.2 below.) agreement to be enforceable on divorce? 5.2 How is child maintenance calculated and is it There are no explicit procedural requirements, but the court administered by the court or an agency? has suggested that greater weight would be given if both parties were represented and advised fully of the circumstances when Both parents are under a duty to maintain or contribute to the they entered into a marital agreement (AUA v ATZ; in the maintenance of the child (s 68, WC). The court may order a context of a post-nuptial agreement made in the course of ancil- parent to pay a monthly allowance or a lump sum for the main- lary proceedings: Surindar Singh s/o Jaswant Singh v Sita Jaswant tenance of his/her child up until he/she attains 21 years of age Kaur [2014] 3 SLR 1284). (s 69(2), s 127, WC).

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When ordering child maintenance, the court must have regard has attained 21 years of age (ss 69(3)(b), 70(4)(b), WC). If the to all the circumstances of the case, including the income, child is a minor, his/her siblings who have attained 21 years of earning capacity, property and financial resources of the parents, age (ss 69(3)(c), 70(4)(c), WC) or his/her guardian or a person as well as the financial needs of the child and the standard of having actual custody of him/her (ss 69(3)(a), 70(4)(a), WC) may living enjoyed by the child, including how the parties expected do so instead. him/her to be educated or trained (s 69(4), WC). See question 5.2 above for the factors that the court will take The authorities had been exploring the viability of estab- into account. lishing a formula-based child maintenance table to facilitate the calculation of child maintenance. There is no agency admin- 62 Children – Parental Responsibility and istering maintenance claims in Singapore, and maintenance orders have to be enforced through court proceedings. Custody Parties may apply to vary existing maintenance orders pursuant to a material change in circumstances. However, the 6.1 Explain what rights of custody both parents have in court will consider whether such a change is sufficiently material your jurisdiction, whether (a) married, or (b) unmarried? such that it is no longer fair to expect the status quo to remain, bearing in mind all the circumstances of the case including There is no difference between married and unmarried parents whether such a change was already foreseen and expected and/ in respect of their rights of custody. However, adoption applica- or had also been offset by other changes; for example, where tions made with the intent to form a same-sex family unit have an increase in children’s expenses is matched by an increase in been declared by the court to be contrary to the Government’s income (BZD v BZE [2020] SGCA 1). public policy stance. For such applications to succeed, the factual circumstances of the particular case must be sufficient 5.3 For how long is a parent required to pay child to convince the court that the statutorily imposed imperative to maintenance or provide financial support for their advance the welfare of the child outweighs all prevailing public children? For example, can a child seek maintenance policy considerations (UKM v AG [2019] 3 SLR 874). during university?

6.2 At what age are children considered adults by the A maintenance order may also be ordered for the benefit of a court? child beyond the age of 21 years if the child: (a) has a physical or mental disability; (b) is or will be serving full-time national The WC defines a “minor” as a person who is below the age service; (c) is or will be studying or undergoing training for a trade, profession or vocation whether or not under gainful of 21 years and who is not married or a widower or widow. employment; or (d) has special circumstances justifying the However, a child who has attained 18 years of age but is below making of the order (s 69(5), WC). 21 years old would not be considered to be a minor in relation to It has been held that if a child is genuinely pursuing a course any legal proceeding or action in which, by virtue of s 36 of the of studies in order to better prepare him/herself for the working Civil Law Act, he/she may, in his/her own name and without a world, as long as it is reasonable for the child to pursue that course litigation representative, bring, defend, conduct or intervene in and the parents can afford it, the court may order the parents to as if he/she were of full age (r 3(4), FJR). maintain the child either fully or partially while still studying (Wong Ser Wan v Ng Cheong Ling [2006] 1 SLR(R) 416). However, 6.3 What is the duration of children orders (up to the this remains in the court’s discretion. In a recent application by a age of 16 or 18 or otherwise)? son (aged 22 years) for his father to pay for his university education in Canada, the court took the view that he had graduated Child custody orders last until the child is 21 years of age. from polytechnic, and was an independent adult who had to find his own means if he wishes to study in Canada and the father was not obliged to pay (UYT v UYU and another appeal [2020] SGHCF 6.4 What orders can the court make in relation to 8). Where a parent was not informed or consulted on the child’s children? Does the court automatically make orders in decision to study overseas, the court may find it more reasonable relation to child arrangements in the event of divorce? to assess the parties’ contributions based on the cost of a local university education (BON v BOQ [2018] SGCA 68). The court has to make orders in respect of “custody”, “care and control” and “access” under the WC in the event of divorce. 5.4 Can capital or property orders be made to or for the The person given “custody” has decision-making control and benefit of a child? responsibility over the upbringing, education, health and religion of the child (ss 126(1), (2), WC). The Court of Appeal has emphasised that parenthood is a lifelong responsibility and The court may, if it considers it just, order the person liable to endorsed the idea of joint parental responsibility, even where pay the maintenance to secure the whole or part of it by vesting there is acrimony between the parents (CX v CY [2005] 3 SLR any property belonging to the person in trustees upon trust to pay the maintenance or a part of it out of the income from the 690), by way of joint or no custody orders. property for the settlor (s 69(8), WC; s 70(5), WC). The parent with “care and control” has the right to take care of the child and to make the day-to-day decisions concerning the child’s upbringing and welfare. This right naturally belongs 5.5 Can a child or adult make a financial claim directly to the parent with whom the child lives (AQL v AQM [2012] against their parents? If so, what factors will the court 1 SLR 840). Orders for shared care and control do subsist but take into account? are rarer in Singapore on account of various reasons, e.g. due to the logistical difficulties, the fact that it may be disruptive, and Yes, he/she may do so against his/her parents or the person who the parents having markedly different parenting styles (AQL has accepted him/her as a member of his/her family if he/she v AQM). In deciding which parent should be given care and

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control of the children, the following are some trends which she receives the reports or expert evidence as these avenues are emerge from local case law: not mutually exclusive (AZB v AZC). ■ There is a preference towards preserving the status quo The court may also appoint a parenting coordinator who and continuity of living conditions (Wong Phila Mae v Shaw would help parents who are separated or divorced to learn to Harold [1991] 1 SLR(R) 680; TSF v TSE [2018] SGCA 49). co-parent effectively by addressing and mediating conflicts ■ A young child requires a mother’s daily care (Soon Peck Wah between parents (rr 34A – 34G, FJR). v Woon Che Chye [1997] 3 SLR(R) 430 read with CX v CY). ■ Siblings should not be separated (Kim Chun Ahe v Ng Siew 6.10 Is there separate representation for children in your Kee [2002] SGDC 276). jurisdiction and, if so, who would represent them, e.g. a Lastly, the court usually grants “access” to the parent who lawyer? does not have care and control of the child (AQL v AQM) to have regular contact with the child. Yes, the court may (via an application by a party or otherwise), if it is in the best interests of the child to do so, appoint a child 6.5 What factors does the court consider when making representative for a child for any action involving the child or orders in relation to children? the custody or welfare of the child (r 30, FJR).

See question 6.4 above. The overwhelming factor is the child’s 6.11 Do any other adults have a say in relation to the best interests. arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to 6.6 Without court orders, what can parents do children? unilaterally? For example, can they take a child abroad?

These other relatives can have a say by giving witness statements Where a custody, or care and control order is in force, unless on behalf of a parent. In particular circumstances, while ordi- the trip is for a period of less than one month, the child may narily the grandparents’ role could not overtake the priority not be taken out of Singapore without the other parent’s written that the law placed on parental love, responsibility and care, the consent or without the leave of the court (ss 126 (4), (5), WC). child’s bond with the grandparents had been taken into account (TSF v TSE). However, such relatives do not have locus standi 6.7 Is there a presumption of an equal division of time to apply for custody, care and control of the child even under between separating or divorcing parents? the GIA, save in limited circumstances as prescribed, such as where the child has no surviving natural parents (UMF v UMG There is no presumption of equal division of time. There is [2019] 3SLR640). The court does not have jurisdiction to grant no legal principle against, or a legal presumption for, shared a parent’s application to appoint a non-parent as guardian even care and control. The realities upon a separation or divorce, if such application was by consent, and the parent had already including the parental conflict, the parties’ emotional baggage, voluntarily delegated or shared parental responsibility over his/ and the dynamics of the various relationships may entail that the her child with the non-parent (VET v VEU [2020] SGHCF 4). perceived ideal of equal-time shared parenting or shared care For methods of dispute resolution, see question 2.12 above. and control could do more harm than good (TAU v TAT [2018] SGHCF 11). Ultimately, the court looks at the best interests of 72 Children – International Aspects the child to determine the optimal arrangement. 7.1 Can the custodial parent move to another state/ 6.8 Are unmarried parents treated in the same way country without the other parent’s consent? as married parents when the court makes orders on separation or divorce? No, in particular, the custodial parent cannot take and move a child who is subject to a custody order out of Singapore, except Whilst the procedure for applying for custody, care and control, with the written consent of the other parent or the leave of court and access is different under the Guardianship of Infants Act (s 126(3), WC). (“GIA”) for both married and unmarried parents and under the WC for married parents, the courts treat unmarried parents and 7.2 Can the custodial parent move to another part of married parents in the same way. the state/country without the other parent’s consent?

6.9 Is a welfare report prepared by an independent This is not applicable to Singapore, which is a small single-state professional or is the decision taken by the Judge alone? country. If so, does the child meet the Judge?

7.3 If the court is making a decision on relocation of a The decision is ultimately taken by the judge. However, the child abroad, what factors are taken into account? judge may (via an application by a party or otherwise) order the production of reports such as a Social Welfare Report, Custody Evaluation Report, Access Evaluation Report, Special Issues In considering relocation applications, the welfare of the child is Report, etc. by professionals from the appropriate disciplines paramount and this principle overrides any other consideration (s within the Ministry of Social and Family Development and 3, GIA; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] SGHCF various other government agencies (rr 35, 36, FJR; AZB v AZC 1). The court balances all the circumstances of the case, and have [2016] SGHCF 1). The judge may still interview a child after he/ in past cases considered the effects on the child if the (reasonable) wishes of the parent with primary care wishing to take the child

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abroad are interfered with; the child’s loss of relationship with the wrongful removal or retention of the child is said to have taken parent left behind, especially risk of estrangement due to lacking place (TUC v TUD [2017] SGHCF 12). The country of habitual physical contact with a young child (UUI v UUJ [2019] SGFC 59); residence of the child is determined by considering two things: and the feasibility and meticulousness of the applicant’s reloca- the degree to which the child is settled or integrated in that tion plan, including, for example, the compatibility and prospects country and the joint intention of the parents as to whether the of the education system that the child would be exposed to after child is to reside in that country (TUC v TUD). Joint parental relocation (TOF v TOE [2019] SGFC 38). intention and the objective circumstances bear particular significance where the child is young and his stay in the country is 7.4 If the court is making a decision on a child moving short (VAA v VAB [2019] SGFC 92). The weight to be placed to a different part of the state/country, what factors are on each concern is dependent on the circumstances of each case taken into account? (TUC v TUD).

See question 7.2 above. 82 Overview

8.1 In your view, what are the significant developments 7.5 In practice, how rare is it for the custodial parent to in family law in your jurisdiction in the past two years? be allowed to relocate internationally/interstate?

Until about 2015, such applications have generally been allowed The Vision of Therapeutic Justice and “Today Is A New Day” so long as the custodial parent’s desire to relocate is not unrea- In the Presiding Judge of the Family Courts the Honourable sonable or founded in bad faith. The Court of Appeal and High Justice Debbie Ong’s Family Justice Court’s Workplan 2020 Court have, since about 2015, criticised this approach and gener- address on 21 May 2020, she shared her vision of “therapeutic ally appeared to disallow relocation; the custodial parent’s reason- justice” as a lens of “care” to re-examine and evolve substantive able wishes are no longer a determinative factor, but are only one rules, laws, legal procedures and practices, as well as the roles of of the factors among other composite factors, particularly, the the legal participants with a view to whether they produce helpful loss of relationship with the left-behind parent depending on the or harmful consequences for the family, particularly the children. strength of the existing bond between that parent and the child It is a non-adversarial system less about rights and wrongs, than (BNS v BNT; TAA v TAB). The stricter attitude towards reloca- one that is a multi-disciplinary approach to “problem-solving” tion means that the court will first examine whether relocation to address the consequences of family breakdown, so that the is a matter of necessity. Where relocation is merely an optional family can heal. Procedurally, there will be more “upstream” albeit understandable choice, the applicant will be required to processes introduced to help parties sort out their problems even establish how relocation serves the best interests of the chil- before coming to court, including counselling and mediation. dren’s welfare (UXH v UXI [2019] SGHCF 24, citing the court This was endorsed by the Court of Appeal in VDZ v VEA below). However, there appears to have been a recent increase [2020] SGHCF 2 (decided on 4 August 2020), opining that in the number of reported and unreported cases allowing reloca- “therapeutic justice is not merely an ideal; it is a necessity”. tion (including VER v VES [2020] SGFC 5; VJL v VGM [2020] SGFC 59; and UYK v UYJ [2020] SGHCF 9). Refining the Approach to Division of Matrimonial Assets The assessment is an intensely fact-centric exercise (UFZ v The court’s approach to division of matrimonial assets has UFY [2018] SGHC 8). In UYK v UYJ, the court observed that continued to evolve since the structured approach was first laid in recent decisions granting leave to relocate, many of the cases down in ANJ v ANK (see question 2.3). The structured approach involved a parent returning to his or her home country after the may not apply to single-income marriages as this unduly favours breakdown of the parents’ relationship where the child’s stay in the working spouse at the expense of the non-working spouse. Singapore was never intended to be permanent. However, the Where it is a case of a long single-income marriage, the court court emphasised that there was no presumption for or against will incline towards an equal division of matrimonial assets relocation and that it would be dangerous to “pigeonhole” cases (TNL v TNK and another appeal and another matter [2017] SGCA into “categories” that would lead to prescribed outcomes. 15). The High Court has held that there is a similar tendency to incline towards equality in long dual-income marriages (UYP v 7.6 How does your jurisdiction deal with abduction UYQ [2019] SGHCF 16). cases? For example, is your jurisdiction a party to the While the Court of Appeal has affirmed that the struc- Hague Convention? tured approach continues to apply in respect of short marriages rejecting an inclination towards equality of division, this is In respect of international abduction cases, the International applied in a broad-brush manner, particularly with regard to Child Abduction Act came into force on 1 March 2011, determining the ratio of indirect contributions (USB v USA and subscribing to the Hague Convention on Civil Aspects of another appeal). The Court of Appeal did not come to a defin- International Child Abduction (the “Hague Convention”) of itive conclusion that there is an inclination towards equality in securing the prompt return of a child who had been removed long dual-income marriages, but cautioned against a rigid, overly in breach of custody rights effectively exercised under the law arithmetical application of the structured approach, recognising of the country of his/her habitual residence, subject to judi- that it is impossible to attempt to take every detailed record of the cial discretion when the exceptions in Art 13 of the Hague marriage into account, all the more so where longer marriages Convention have been satisfied (BDU v BDT [2014] SGCA 12). were concerned (UYQ v UYP [2020] SGCA 3). Undertakings are required as a prerequisite for the return of the In line with the goals of therapeutic justice, parties are also child; this acts as a protective measure to ensure that justice and reminded that the ancillary matters proceedings should not be fairness is achieved. treated as a forum to vent frustrations, and the court takes the In determining the child’s country of habitual residence, the view that parties should focus instead on addressing the finan- court will consider whether the child was habitually resident cial consequences of their marriage breakdown to move forward in that place immediately before the date on which the allegedly positively (VGY v VGZ [2020] SGHCF 6).

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8.2 What impact, if any, has the COVID-19 pandemic The Family Justice Courts were also mindful that litigants- had on family law in your jurisdiction to date, and is in-person (“LIPs”) have continued access to processes and likely to have over the next 12 months? established 14 “Zoom rooms” in two locations, each with a Zoom connection to the relevant family judge, so that LIPs Following the lockdowns and gradual reopening of the courts, unable to set up a call on their own could visit these rooms to the family justice system had to deal with the disposal of a attend hearings. About 30–40% of the Family Justice Court’s backlog of accumulated and incoming new cases, in particular users attended hearings from Zoom rooms during the “Circuit maintenance claims and domestic violence cases, as the Breaker” period, which enabled the courts to hear about 33% pandemic and lockdowns took their toll on family finances and of their caseload, more than 2,400 cases, for that period despite reshaped family’s living environments (see The Honourable movement restrictions. Chief Justice Sundaresh Menon’s address on 28 May 2020 at The Honourable Chief Justice Menon opined in his address at the Judicial Integrity Network in ASEAN webinar: “Justice in the Judicial Integrity Network in ASEAN webinar, that going Times of Covid-19”). The Covid-19 pandemic and attending forward, the conduct of hearings by way of remote communica- movement restrictions also gave rise to an increase in access tions technology is likely to become commonplace, and perhaps issues. In this regard, the court has affirmed the importance of even the default modality for most hearings. maintaining the children’s relationship with both parents, and has taken a dim view of parents who would use Covid-19 restric- 8.4 What are some of the areas of family law which you tions including lockdowns as an excuse or cover for denying think should be looked into in your jurisdiction? access and even excluding the party from the children’s lives (VBS v VBR [2020] SGHCF 10). In line with the move towards therapeutic justice, there have As for relocation applications, the court considers that been calls to relook at reforming divorce to allow “no-fault although it may be relevant, the Covid-19 situation should not divorces” (see, for example, Professor Chan Wing Cheong’s be given inordinate weight and must be considered with all the article in The Straits Times “Consider Allowing No-fault Divorce other factors, noting that relocation ultimately concerns the to Remove Blame Game When Couples Split” dated 9 July child’s long-term interests with ramifications that would last far 2020). “No-fault divorces” would avoid the need to start the beyond the evolving pandemic. Where a balancing of all the process of re-organising the family’s life upon marital break- factors led to the conclusion that relocation is the best step for down with blaming and shaming. the child and family, the Covid-19 situation in itself should not It is reiterated that enforcement generally continues to be hold the child back from relocating (UYK v UYJ). problematic in family proceedings. With maintenance, the Going forward, the Honourable Chief Justice Menon noted in complainant who is already deprived of the payment of the his address at the Judicial Integrity Network in ASEAN webinar ordered maintenance, is still required to expend time and that “we may see growing legal needs in the segments of society costs to go through yet another process of a full-blown trial to that are least able to pay for legal services, such as families in show non-compliance. Even if non-compliance is proven, the distress who need relief from the courts”, and that “the gulf respondent is typically given an opportunity to pay the arrears between society’s legal needs, on the one hand, and its ability to computed as at the date of hearing by way of instalments, which pay for the required services, on the other, coupled with law firms’ is often compounded by further proceedings if the respondent reduced ability to help bridge that gap through pro bono work is is still not duly paying the ongoing maintenance ordered, or if a real concern”. the respondent counter-applies for back-dated downward variation of the ordered maintenance. As for access, the only real 8.3 To what extent and how has the court process and recourse is to file a case for contempt of court which involves other dispute resolution methods for family law been first endorsing a penal notice to the access order and serving adapted in your jurisdiction in light of the COVID-19 it out the contemnor before then making an application upon pandemic (e.g. virtual hearings, remote access, further breach. The applicable standard of proof to both crim- paperless processes)? Are any of these changes likely to inal and civil contempt is that of the criminal standard of proof remain after the COVID-19 crisis has passed? beyond a reasonable doubt. Even where the court does mete out deterrent sentences in the most serious of cases, including The Family Justice Courts in Singapore have generally evolved imprisonment (VDZ v VEA [2020] SGHCF 2) or a fine (as to deal with movement restrictions by integrating the use of allowed on appeal in VDZ v VEA [2020] SGCA 75), it is not technology for remote hearings and processes. By the end of clear how helpful to the family this would be. April 2020 (within the first month of the “Circuit Breaker” period in Singapore), the courts conducted the majority of hearings using remote communication technology such as Zoom (see The Honourable Chief Justice Menon’s message on “The Judiciary’s Response to the Extension of the “Circuit Breaker” Period” dated 24 April 2020).

Family Law 2021 Chia Wong Chambers LLC 139

Wong Kai Yun has practised law for the past 25 years. Her family law clients typically comprise high-net-worth individuals with especial concerns over financial settlements, and expatriates with cross-jurisdictional issues. Ms Wong is a Fellow of the International Academy of Family Lawyers (IAFL), as well as a registered practitioner of the Society of Trust and Estate Practitioners (STEP). She is an accredited Singapore Mediation Centre Associate Mediator, an accredited Mediator on their Family Panel, and sits on the panel of their Collaborative Family Practice and is also a Mediator on the panel of Cross-Border Family Mediators of Mediation bei Internationalen Kindschaftskonflikten (MiKK), Germany. She is a Fellow of the Singapore Institute of Arbitrators (SIArb) and the Chartered Institute of Arbitrators (CIArb). She is also the Executive Editor of the Singapore Journal of Legal Studies, the flagship law journal of the Faculty of Law, National University of Singapore. From its inauguration in 2013 to date, Ms Wong has been honoured as part of the Top 200 IFC (International Financial Centre) Power Women, and was included as one of a select few of Singaporean lawyers listed on the Citywealth Leaders List. She was also named in the Doyles Guide for Family & Divorce Lawyers from 2015 to date, as well as recognised by Benchmark Litigation Asia-Pacific (Litigation Star) since 2019 to date.

Chia Wong Chambers LLC Tel: +65 6342 0002 6 Temasek Boulevard Email: [email protected] #38-02 Suntec Tower 4 URL: www.chiawongchambers.com Singapore 038986

With a strong litigation foundation, the team of lawyers at Chia Wong Chambers pride themselves on their effective style of dispute settlement and resolution. They have handled many high-profile cases, and recognise the realities of media exposure, commercial practicality and individual sensitivity. The firm handles a variety of cases, including heavily contested matrimonial cases and many cross-border disputes that involve foreign individuals, entities and assets. The firm was named as the Editor’s Choice in the Global Law Experts 2015 Practice Area Awards as the Boutique Family Law Firm and Boutique Criminal Law Firm of the Year in Singapore, the Boutique Family Law Firm of the Year in the ACQ5 Global Awards 2015, in Doyles Leading Family & Divorce Law Firms Singapore from 2018 to 2020, and in Benchmark Litigation Asia-Pacific from 2019 to 2020. They were also featured in the Business Times Salutes Enterprise in 2016, Corporate INTL Magazine in 2017, the 2018 Annual Who’s Who Handbook, and in The Straits Times in 2020. www.chiawongchambers.com

Family Law 2021 140 Chapter 19 Spain Spain

Arbáizar Abogados Amparo Arbáizar

12 Divorce recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations in Member States, jurisdiction shall lie with: a) the Court where the defendant is 1.1 What are the grounds of jurisdiction for divorce habitually resident; b) the Court where the creditor is habitu- proceedings? For example, residence, nationality, ally resident; c) the Court which according to its own law, has domicile, etc.? jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to Spain is party to the Council Regulation (EC) No. 2201/2003 those proceedings, unless that jurisdiction is based solely on of 27 November 2003 concerning jurisdiction and the recogni- the nationality of one of the parties; or d) the Court which tion and enforcement of judgments in matrimonial matters and according to its own law, has jurisdiction to entertain proceed- the matters of parental responsibility, repealing Regulation (EC) ings concerning parental responsibility if the matter relating to No. 1347/2000, known as “the Brussels IIa Regulation”. This maintenance is ancillary to those proceedings, unless that juris- Regulation currently rules the Spanish International Private diction is based solely on the nationality of one of the parties. Law concerning international jurisdiction on divorce and the Article 22 quáter f) of the Spanish Law of the Judicial Power grounds of jurisdiction set out in article 3 of the Regulation rules the international jurisdiction of the Spanish Courts apply. The Spanish Law of the Judicial Power was reformed in on maintenance obligations as set out in article 3 of the 2015, with regards to international jurisdiction and its article 22 “Maintenance Regulation”. quáter c) adopts the very same grounds for jurisdiction as article Spain retains the residual jurisdiction on maintenance obli- 3 of the Regulation. gations when: Spain retains the residual jurisdiction on divorce when: ■ the petitioner or the respondent is habitually resident in ■ both parties are habitually resident in Spain at the time the Spain; and proceedings are issued; ■ the Spanish Courts have jurisdiction concerning the status ■ Spain was the last matrimonial habitual residence and one of a person or concerning parental responsibility and of the spouses still lives there; the matter relating to maintenance is ancillary to those ■ Spain is the respondent’s habitual residence; proceedings. ■ in the case of uncontested divorce, when one of the spouses Spain is party to the Council Regulation (EU) No. 2016/1103 is habitually resident in Spain; of 24 June 2016, implementing enhanced cooperation in the area ■ the petitioner is habitually resident in Spain at least one of jurisdiction, applicable law and the recognition and enforce- year before proceedings are issued; ment of decisions in matters of matrimonial property regimes, ■ the petitioner is Spanish and has been habitually resident which will be applicable between Member States from 29 in Spain for at least six months before proceedings are January 2019. issued; and According to this Regulation the jurisdiction in matters of ■ both spouses are of Spanish nationality. the matrimonial property regime in the event of the death of Article 8 of “the Brussels IIa Regulation” rules that the Courts one of the spouses will be retained by the Court of the Member of the Member State where the child is habitually resident at State which is ruling the succession of the spouse pursuant to the time the Court is seised, shall have international jurisdic- Regulation (EU) No. 650/2012 on Succession. The jurisdiction for parental responsibility and childcare arrangements. The tion in matters of the matrimonial property regime in cases of Spanish Law of the Judicial Power has been reformed and its divorce, legal separation or annulment will be ruled by the Court article 22 quáter d) meets the grounds for jurisdiction as set out of the Member State which is seised for the divorce, legal separa- in article 8 of the Regulation. tion or annulment pursuant to Regulation (EU) No. 2201/2003. Spain retains the residual jurisdiction on parental responsi- Article 22 quáter c) of the Spanish Law of the Judicial Power bility and childcare arrangements when: rules the international jurisdiction of the Spanish Courts in ■ the descendent is habitually resident in Spain at the time matters of matrimonial property regimes. the proceedings are issued; and Spain retains the residual jurisdiction in matters of matrimo- ■ the petitioner is Spanish or has been habitually resident in nial property regimes when: Spain for at least six months before the proceedings are ■ both parties are habitually resident in Spain at the time the issued. proceedings are issued; Regarding article 3 of the Council Regulation (EC) No. ■ Spain was the last matrimonial habitual residence and one 4/2009 of 18 December 2008 on jurisdiction, applicable law, of the spouses still lives there;

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■ Spain is the respondent’s habitual residence; 1.6 Are foreign divorces recognised in your ■ in the case of uncontested divorce, when one of the spouses jurisdiction? If so, what are the procedural requirements, is habitually resident in Spain; if any? ■ the petitioner is habitually resident in Spain for at least one year before proceedings are issued; Yes, they are directly recognised by all parties of the Brussels ■ the petitioner is Spanish and has been habitually resident IIa Regulation. in Spain for at least six months before proceedings are Otherwise, a foreign divorce will be recognised in an issued; and “Exequatur” proceeding on grounds of international/bilateral ■ both spouses are of Spanish nationality. conventions or on a mutual recognition basis. Article 769 of the Spanish Law of Civil Procedure rules the competent Court in Spain to make orders in matrimonial and child proceedings: 1.7 Does your jurisdiction allow separation or nullity proceedings? ■ First instance Court of the matrimonial residence, last matrimonial residence, respondent’s residence and if it cannot be found, the petitioner’s residence. Yes, they do. ■ Agreement on divorce: First instance Court of the Separation proceedings are treated like divorce proceedings. last matrimonial residence or residence of any of the The grounds for nullity are different and it is much more diffi- petitioners. cult to obtain than a divorce or separation. Only for childcare arrangement proceedings (custody and maintenance): 1.8 Can divorce proceedings be stayed if there are ■ First instance Court of the parents’ last residence. If proceedings in another country? the parents live in different countries, the petitioner can choose between the respondent’s residence or the chil- Yes, they can. dren’s residence. Article 19 of the Brussels IIa Regulation is applicable between parties. 1.2 What are the grounds for a divorce? For example, Otherwise, the “Declinatoria” proceedings, due to a lack of is there a required period of separation, can the parties international jurisdiction, are provided by articles 63–66 of the have an uncontested divorce? Spanish Law of Civil Procedure.

There are neither grounds for divorce nor a required period of 22 Finances on Divorce separation. One party, or both parties, can issue separation/ divorce proceedings three months after the marriage. These 2.1 What financial orders can the court make on three months will not be required in cases where there is a divorce? danger to the petitioner or the children. Yes, the parties can have an uncontested divorce. Spousal and children maintenance orders and use of the matrimonial home are in a child’s best interest. 1.3 In the case of an uncontested divorce, do the In the case of the separation of assets matrimonial regime, a parties need to attend court and is it possible to have a compensation order to the spouse for his/her dedication to the “private” divorce, i.e. without any court involvement? family which has produced a corresponding loss of professional opportunities, as well as a financial order to put an end to the joint properties of the spouses, can both be made on divorce. Yes, they do if they have children together, since only the Courts can make child arrangement orders. They can sign the agreement before a notary public if they do not have any minor chil- 2.2 Do matrimonial regimes exist and do they need to dren and therefore directly obtain the Divorce Absolute. be addressed by the court on divorce? Is there a default matrimonial regime?

1.4 What is the procedure and timescale for a divorce? Yes, they do. The matrimonial property regime will finish “ope legis” at the Divorce Decree date. After the Divorce Decree, the It is very different from Court to Court, but in the main cities parties can issue the specific liquidation of matrimonial prop- with specialised Family Courts, the timescale is approximately erty regime and proceed to distribute the assets and liabilities six months for a first instance Divorce Decree. The appeal may between them. take about six months/one year. In small town Courts, this will They can also have an out-of-court agreement and liquidate usually not be more than one year. the matrimonial property regime in a notary public Deed. Uncontested divorce proceedings are much quicker: between Spain comprises several territorial units, some of which have one month and three months to obtain a Divorce Absolute. their own rules of law in respect of family and succession. The common point is that in all of them you can choose your matri- 1.5 Can a divorce be finalised without resolving other monial property regime in a notary public Deed. But, in the associated matters? For example, children and finances. absence of an agreement, a matrimonial property regime will apply by default: ■ Civil Code: Joint ownership of assets (Régimen de gananciales). It cannot be finalised without resolving child arrangements, ■ Catalonia, Aragón and the Balearic Islands: Separate maintenance and the use of the family home. ownership of assets. The matrimonial property regime will be liquidated in sepa- ■ Galicia: Joint ownership of assets. rate Court proceedings (or with a notary public) after the ■ Basque Country (differences between the counties): Joint Divorce Decree. ownership of assets/universal community of assets.

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■ Navarra: Matrimonial company of conquests “Sociedad A couple with minor children must always issue divorce conyugal de conquistas”. proceedings before the Court to obtain maintenance orders and ■ Parts of Extremadura: Community of assets “Fuero del the use of the family home. Baylío”. After the divorce, a couple that agrees on financial/capital matters can sign, in front of a Spanish notary public, a Deed of liquidation of the matrimonial property regime. They do not 2.3 How does the court decide what financial orders to make? What factors are taken into account? need to have a Court Order or to attend Court. The Deed of liquidation of the matrimonial property regime can be directly enforced by the Courts in Spain as a Court Order. The choice of orders on divorce is ruled in the Spanish Civil Code and the Spanish Law of Civil Procedure rules on how to obtain them from the Court. 2.6 How long can spousal maintenance orders last and The Divorce Court Order must rule parental responsibility are such orders commonplace? and all the child arrangement issues including, but not limited to: maintenance; custody; right of access; and use of the matri- After a divorce, it is normally expected that each spouse supports monial home. him or herself. The Court will only order spousal maintenance obligations if The main aim of these orders is to help the ex-husband or it is requested in the divorce petition. ex-wife maintain the same “standard of living as during the After the Divorce Decree, any ex-spouse can issue Court marriage”. The main criteria for spousal maintenance are: if the proceedings to liquidate the matrimonial property regime. divorce produces an adverse economic imbalance to one of the Interim measures orders on maintenance, custody, rights of spouses; and if there has been a loss of professional opportuni- access and use of the family home during the divorce proceed- ties because of the marriage. The age, health, duration of the ings must also be requested by any party to the divorce petition marriage and the career prospects and ability to earn a living of and not more than 30 days before the divorce petition is lodged. the spouse are also taken into account. The compensation usually consists of temporary maintenance payments for a couple of years but a single payment can be also 2.4 Is the position different between capital and maintenance orders? If so, how? taken into account. Lifelong spousal maintenance orders are rare and only apply in cases in which the marriage was very long and the spouse is of The position of the Court is a little bit different. The aim of an age with no prospects to earn a living after having invested maintenance orders is to redistribute the family incomes in order his/her life in the family welfare. to minimise the effects of the divorce mainly upon the children’s costs and expenses and, secondarily, upon the spouses. The spouse with the larger income must pay more child maintenance 2.7 Is the concept of matrimonial property recognised and, eventually, maintenance to the other spouse. Maintenance in your jurisdiction? obligations between spouses are not commonplace. Please see question 2.6 below. Yes, it is. There are three matrimonial property regimes recog- Capital orders are made regarding the rules of the liquidation nised in the Spanish Civil Code: joint ownership of assets; sepa- of the matrimonial property regimes of the Spanish Civil Code. ration of assets; and participation in acquisitions. The assets and liabilities of the marriage will be split between Joint ownership of assets: the acquisitions obtained by each the spouses following these articles in quite an impartial manner. of the spouses during the marriage are common and divided The exception is the matrimonial property regime of the sepa- equally when the matrimonial property is liquidated. The assets ration of assets. If there is no matrimonial property, on divorce, that each spouse brought into the marriage and those inher- the Court can issue an order to compensate one of the spouses ited or acquired gratuitously afterwards are considered personal for his/her dedication to the family which has produced a corre- property of each spouse. sponding loss of professional opportunities. Separation of assets: each spouse retains what he/she brought We must take into account whether the couple has children into the marriage and becomes the sole owner of the property and whether they have entered into a matrimonial property acquired during the marriage. Where it cannot be established to regime other than the separate ownership of assets. whom the property belongs, there is a presumption of an equal If the couple has children, maintenance orders must be division between each spouse. made by the Court on divorce, regardless of whether there is Participation of acquisitions: each spouse retains what he/she an agreement or not. If there is an agreement, the Judge and brought into the marriage and becomes the sole owner of property the “Ministerio Fiscal” (see question 6.4 below) must approve the he/she acquired during the marriage. At the end of the marriage, settlement protecting the child’s best interest. the acquisitions made will be calculated and each spouse is enti- If the couple lived under a separate ownership of assets, on tled to a share of the acquisitions made by the other spouse during divorce, the Court can issue an order to put an end to the joint the marriage. This regime is rather unusual in Spain. properties of the spouses and to compensate one of the spouses There are other matrimonial property regimes recognised for his/her dedication to the family which has produced a corre- under the family law of some autonomous communities, as sponding loss of professional opportunities. explained in question 2.2.

2.5 If a couple agrees on financial matters, do they 2.8 Do the courts treat foreign nationals differently on need to have a court order and attend court? divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of the jurisdiction? A couple without children that agrees on financial matters can sign an agreement in a Deed in front of a Spanish notary public on divorce regarding spousal maintenance obligation and liqui- Spain is a party to the Council Regulation (EU) No. 1259/2010 dation of matrimonial property regime. of 20 December 2010 implementing enhanced cooperation

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in the area of the law applicable to divorce and legal separa- 2.10 Is the concept of “trusts” recognised in your tion, known as the “Rome III Regulation”. This Regulation jurisdiction? If so, how? shall apply in conflicts of law on divorce between participating Member States. No, it is not. Spain is not party to the Hague Convention of Article 107.2 of the Spanish Civil Code rules the applicable 1985. law on divorce for foreign nationals and it has been reformed to A foreign trust can be recognised by the Spanish Court converge with the grounds as set out in “Rome III Regulation”. subject to strong evidence of Foreign Law (as explained in ques- Spain has opted into the 2007 Hague Protocol of the EC tion 2.8) so that the Spanish Judge can understand the content, Regulation No. 4/2009 in relation to maintenance as set out legal nature, instrumentality, purpose, etc. of the trust in this in article 15. The general rule (article 3) on applicable law in specific case. accordance with the 2007 Hague Protocol on the law applicable There are some Spanish legal instruments similar to trusts, to maintenance obligations shall be the law of the State of the such as investments funds, pension funds, protected properties habitual residence of the creditor. According to articles 7 and for the disabled, etc. 9 of the Spanish Civil Code, the law applicable to maintenance The Spanish foundation (“fundación”) must have a general obligations shall be ruled by the 2007 Hague Protocol. interest purpose but its legal frame is similar to the trust. Spain is a party to the Council Regulation (EU) No. 2016/1103 In the Spanish Law of Succession, the “fideocomiso” is similar of 24 June 2016, implementing enhanced cooperation in the area to a trustee as outlined in article 781 of the Spanish Civil Code of jurisdiction, applicable law and the recognition and enforce- and article 426 of the Catalonian Civil Code. Law 293 of the ment of decisions in matters of matrimonial property regimes and the Council Regulation (EU) No. 2016/1104 of 24 June Navarra New Regional Code contains the rules of the “fiducia 2016 implementing enhanced cooperation in the area of juris- continuada” which is quite similar to the trust. diction, applicable law and the recognition and enforcement of There are different civil law contracts which can be selected decisions in matters of the property consequences of registered on a case-by-case basis to obtain the same purpose as with a partnerships. These Regulations shall apply in conflicts of law trust: donation; agency; company; mortgage; foundation; between participating members to marriages or civil partner- mandate; and protected properties for the disabled, etc. ships performed after 29 January 2019. Otherwise, the Spanish Civil Code rules in its articles 2–3 and 2.11 Can financial claims be made following a foreign 9, that the applicable law to the matrimonial regimes is deter- divorce in your jurisdiction? If so, what are the grounds? mined by: ■ Common nationality when they got married. The foreign divorce must be recognised by the Spanish Courts. ■ Public Deed choosing between the national law/habitual The financial claim must be related to immovable assets situ- residence of any spouse. ated within the Spanish jurisdiction upon which the foreign ■ First common habitual residence after the marriage. Judge did not have jurisdiction to rule. ■ Country where the marriage took place. It might also consist of liquidating a Spanish property regime Foreign Law can be applied by the Spanish Courts, subject before the Spanish Courts if it was not decided in the foreign to the proof of the Foreign Law by the party who seeks its Divorce Decree. application. This is not commonplace. How to give evidence of the Foreign Law before the Spanish Court: (1) Content and validity of the Foreign Law: by a public docu- 2.12 What methods of dispute resolution are available ment issued by the Embassy in Madrid or the Spanish to resolve financial settlement on divorce? E.g. court, Embassy in the foreign country. mediation, arbitration? (2) Application of the Foreign Law to the specific case: two different expert reports (foreign lawyers) explaining to the Court and mediation are the most common now whilst arbitra- Spanish Judge how the Foreign Law would be applied to tion and collaborative law are not as common. this case by the foreign Court. There is the risk that, if the Judge considers that the Foreign Law 32 Marital Agreements was not sufficiently proved, Spanish law will be directly applied. 3.1 Are marital agreements (pre- and post-marriage) 2.9 How is the matrimonial home treated on divorce? enforceable? Is the position the same if the agreement is a foreign agreement? The children remain in the matrimonial home with the spouse who has custody of them. The marital agreements are recognised as private contracts under In the case of shared custody, the children remain in the matri- the Spanish law and are therefore binding for the contracting monial home with the spouse who has more difficulty in earning parties if they are not against the child’s best interest and the a living and the spouse whose financial situation is better must Spanish “ordre public”. The marital agreement will be enforceable find a new home. When both spouses are in a similar financial when included in a Court Order after the divorce proceeding. position, the children will live each period of shared custody in The foreign marital agreement can also be recognised as a each parent’s new home. The parents can then put an end to the private contract subject to evidence of the Foreign Law before matrimonial joint property. the Court. It can be enforced if the Court recognises its terms If there are no children, the spouse who is in a weaker financial and conditions and includes them in the Court Order. position remains in the matrimonial home until he/she can have The marital agreement can be directly enforceable if it is access to another home. The Divorce Decree can determine how granted in a Deed in front of a Spanish notary public. long this spouse might remain in the matrimonial home.

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3.2 What are the procedural requirements for a marital 4.4 Are same-sex couples permitted to marry or enter agreement to be enforceable on divorce? other formal relationships in your jurisdiction?

The marital agreement must first be approved by the Court Yes, they can marry and adopt children or adopt a civil on divorce and included in the Divorce Decree, which can be partnership. enforced afterwards. The marital agreement could be directly enforced on divorce 52 Child Maintenance if it was granted in a Deed in front of a Spanish notary public and the couple does not have children. 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance Child maintenance and use of the matrimonial home are avail- or compensation, or are they limited to the election of the matrimonial property regime? Can they deal able. There is no difference within or outside of marriage. with financial claims regarding children, e.g. child maintenance)? 5.2 How is child maintenance calculated and is it administered by the court or an agency? Marital agreements can cover a spouse’s financial claims on divorce, e.g. maintenance. Compensation can be agreed in Child maintenance can only be calculated and administered by cases where couples choose the separation of assets matrimo- the Court. nial property regime. The costs and expenses of the child, such as upbringing, The election of the matrimonial property regime must be clothing, education, healthcare, etc. must be estimated. granted in a Deed in front of a Spanish notary public. The incomes of each parent are also taken into account when They cannot deal with child maintenance or other claims considering maintenance and which spouse remains in the regarding children, which must be approved by the Judge and matrimonial home. the , who protects the child’s best interest. See Ministerio Fiscal The Spanish General Council of Justice has produced an illus- question 6.4 below. trative table of child maintenance calculation for the Courts, lawyers, parents, etc. The main aim is to facilitate the estima- 42 Cohabitation and the Unmarried Family tion of child maintenance nationwide to encourage agreements between the parents. 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the grounds to make a financial claim? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? For example, can a child seek maintenance The grounds for a financial claim are to prove that the couple during university? had joint properties, joint bank accounts, etc. The grounds to make a financial claim are the intention and existence of shared The parent is required to pay child maintenance until he/she can estates between the cohabitees. obtain financial support for themselves. That is at least until he/ she is 18 years old and can therefore apply for a job. The child 4.2 What financial orders can a cohabitant obtain? can seek maintenance during university.

In the absence of children, they can claim for compensation and 5.4 Can capital or property orders be made to or for the an order to sell the joint properties. The claim must be lodged in benefit of a child? the Civil Courts; they are not under the family law jurisdiction. No, they cannot be made on divorce. 4.3 Is there a formal partnership status for cohabitants They can, however, be made in inheritance proceedings and (for example, civil partnerships, PACS)? some other cases, such as to protect disabled children.

The formal partnership status for cohabitants is not regulated in 5.5 Can a child or adult make a financial claim directly the Spanish Civil Code or at a national level. against their parents? If so, what factors will the court Some autonomous communities have produced their specific take into account? laws on partnership with legal provisions for the existence of a partnership register: Andalucía; Aragón; Asturias; the Balearic An adult can make a claim for financial support directly against Islands; Basque Country; Canary Islands; Castilla-La Mancha; their parents when he/she is older than 18 and the child mainte- Castilla y León; Extremadura; Galicia; Madrid; and Valencia. nance obligation has ended. Catalonia only provides for municipal registers. The existence The Court will take into account the reasons and circum- of a partnership is proved by means of an authentic/notarial Deed. Each autonomous community regulates the register in a stances that force the adult to make a financial claim, for different way, and the effects of registration range from being example unemployment, etc. and the parent’s resources. simply declarative to having practical equivalence with marriage. The child’s maintenance obligation claim is made between the Some autonomous communities do not provide for such a parents on behalf of their children. regional register.

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62 Children – Parental Responsibility and 6.5 What factors does the court consider when making orders in relation to children? Custody

The main factor is the child’s best interest. They also take into 6.1 Explain what rights of custody both parents have in your jurisdiction, whether (a) married, or (b) unmarried? account the child’s opinion when he/she is older than 12 years and also the welfare report.

In Spain, “rights of custody” actually refers to “parental responsibility” which is for both parents. When they cannot agree on 6.6 Without court orders, what can parents do an issue, they must take the matter to a Court which will issue an unilaterally? For example, can they take a child abroad? order stating which parent decides this specific matter. Parental responsibility will not be affected by a divorce. The Both parents almost always have the children’s parental respon- Court must decide at the time of the divorce which parent the sibility; therefore, they must agree in almost every important child lives with (custody) and which parent has the “right of decision relating to their children’s welfare. access”. However, it should be noted that the usual order is one They can take a child abroad on holidays unilaterally. They of “shared custody”. must inform the other parent; however, his/her permission is There is no difference between married or unmarried parents not required. to exercise the rights of custody. 6.7 Is there a presumption of an equal division of time 6.2 At what age are children considered adults by the between separating or divorcing parents? court? The tendency now, is to grant shared custody to both parents Children are considered adults by the Court when they are 18 if at least one of them applies for it and it is in the child’s best years old. Under the Spanish Law of Civil Procedure, a child interest. must be heard at Court when they are 12 years old or older. The child might be heard before if he/she shows enough maturity. 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on 6.3 What is the duration of children orders (up to the separation or divorce? age of 16 or 18 or otherwise)? They are equally treated in relation to parental responsibility, Children orders can be made until the children are 18 years old. child arrangements and use of the family home. Normally, however, they stop at the age of 16, because at this age it is useless and counterproductive to oblige a child to visit 6.9 Is a welfare report prepared by an independent or live with a parent if he/she does not want to. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 6.4 What orders can the court make in relation to children? Does the court automatically make orders in Most Family Courts have a psychologist and a social worker that relation to child arrangements in the event of divorce? prepare a welfare report upon the request of the parents, the Ministerio Fiscal or the Judge. Maintenance orders, parental responsibility orders, custody The Judge will meet the child if he/she is 12 years old or older. orders, right of access orders, national and international reloca- If they are much younger, the Judge will only take into account tion orders and payment orders of reimbursement of extra costs the welfare report to avoid disturbing the children too much and expenses made on the child’s behalf and not included in the with the divorce proceedings. maintenance obligation. The Judge will ensure that his decision meets the Ministerio If the parents must make a decision concerning the child Fiscal report. and they cannot agree, they must issue a proceeding and the Court will issue an order stating which parent can decide in 6.10 Is there separate representation for children in your this specific matter (for example, religious issues, medical treat- jurisdiction and, if so, who would represent them, e.g. a ments, surgery, choice of school, etc.). lawyer? Yes, the Court must automatically make a child arrangements order on divorce. The Ministerio Fiscal must be invited The Ministerio Fiscal must always be invited by the Court to to the divorce proceedings to protect the child’s best interest. proceedings relating to children, to defend the child’s best They represent the Spanish Authorities’ protection of the child’s interest. The Ministerio Fiscal cooperates closely with the Court best interest. The Ministerio Fiscal cooperates closely with the and has a similar education and professional background to a Court and has a similar education and professional background Judge but they are not independent because they are Spanish as a Judge; however, they are not independent because they are Government Civil Servants. They represent the Spanish Spanish Government Civil Servants. Authorities’ protection of the child’s best interest. A parent can also request the Court to order interim measures Otherwise, the children are represented by their parents until regarding maintenance, custody, rights of access and use of the they are 18 years old. family home until the Divorce Decree is produced.

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6.11 Do any other adults have a say in relation to the Articles 778 quáter–778 sexies of the Spanish Law of Civil arrangements for the children? E.g. step-parents or Procedure rule the return proceedings in Spain between party grandparents or siblings. What methods of dispute States in cases of the wrongful removal or retention of the child. resolution are available to resolve disputes relating to The Spanish Central Authority is the Ministerio de Justicia – children? Servicio de Convenios. Address: Calle San Bernardo, nº 62 – E- 28071, Madrid Grandparents, siblings and other close relatives (also step-par- Tel: +34 91 390 4437 ents) have the right to be in contact (right of access) with the Email: [email protected] children, according to article 160.2 of Civil Code. At present, the principal method is mediation. There are also 82 Overview some collaborative lawyers. 8.1 In your view, what are the significant developments 72 Children – International Aspects in family law in your jurisdiction in the last two years?

7.1 Can the custodial parent move to another state/ There have not been any new laws in Spain in the last two years country without the other parent’s consent? regarding family law. The EU Regulation on Matrimonial Property Regime and No, he/she cannot do it in any event. the EU Regulation on the Property of Registered Partners have been applicable in Spain and other Member States since 29 January 2019. 7.2 Can the custodial parent move to another part of The most significant development is the Spanish High Court the state/country without the other parent’s consent? of Justice (Tribunal Supremo) case law establishing shared custody as most beneficial for the child’s best interest. No, he/she cannot do it in any event. There is a draft bill providing for pets in family disputes, which will modify some articles of the Civil Code. 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 8.2 What impact, if any, has the COVID-19 pandemic had on family law in your jurisdiction to date, and is The child’s best interest is taken into account, as well as the age likely to have over the next 12 months? of the children, wider family support in the new country, better education opportunities and whether there will eventually be a Some parents have suspended the right of access with the other better standard of living in the new country. parent and other child arrangements due to the lockdown. Royal Decree-Law 16/20 has introduced three new family 7.4 If the court is making a decision on a child moving procedures covering the duration of the state of emergency and to a different part of the state/country, what factors are for three months after it has been lifted: a) to compensate for the taken into account? time of those parents who have not been able to have contact with their children during the lockdown; b) to modify maintenance orders; and c) to establish new maintenance orders due to The child’s best interest is taken into account, as is the distance parents’ unemployment/loss of income related to the pandemic between the former and new residence which would facilitate and economic crisis. the other parent to meet the child. Better employment opportu- Domestic abuse has risen by 48%. There has also been a clear nities for the parent who wants to move, as well as wider family increase in filing for divorce since the lockdown. support in the new place are also taken into account.

8.3 To what extent and how has the court process and 7.5 In practice, how rare is it for the custodial parent to other dispute resolution methods for family law been be allowed to relocate internationally/interstate? adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, If both parents are foreigners, it is easier to relocate internation- paperless processes)? Are any of these changes likely to ally. If one parent is Spanish, and therefore the child is too, it is remain after the COVID-19 crisis has passed? more difficult. The main ground to allow relocation in Spain is a better job Digital technology was introduced in the Spanish Civil with better financial prospects for the custodial parent when the Procedure Act 2000, and since then all cases have been recorded. earnings of the left-behind parent are not relevant and it would Live evidence was possible if the witness was in another Court, provide a better standard of living to the children. from one Court to another. Filing petitions and lodging docu- Other factors are the distance between the left-behind parent ments may be done electronically, through the platform Lexnet, and the new home, the existence of wider family support in the since 2011. We already have paperless processes. Access to new residence, etc. Court is still required to be in person in most cases, while keeping a safe distance and using a mask and gloves. 7.6 How does your jurisdiction deal with abduction Royal Decree 16/20 implemented remote hearings, though cases? For example, is your jurisdiction a party to the Courts are not really prepared for them. I expect that when the Hague Convention? state of emergency is lifted, Court hearings will return to being in-person, and remote hearings will be left only for exceptional circumstances. Spain is a party of the Hague Convention and of the Brussels IIa Regulation.

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8.4 What are some of the areas of family law which you ■ Articles 9 and 8 of the Spanish Civil Code must be amended think should be looked into in your jurisdiction? to be in accordance with the EU Succession Regulation’s general rule on applicable law: the law of the State in which the deceased had his/her habitual residence at the time of ■ We need a nationwide Registered Civil Partnership Law death (not the deceased’s nationality). (PACS) (please see question 4.3). ■ Articles 8 and 9 of the Spanish Civil Code must be amended ■ mn I a i favour of regulating surrogacy in Spain, which is to be in accordance with the “EU on Succession” and the currently prohibited. “EU Regulation on Matrimonial Property Regime” which ■ Family law experts request a better ruling of the use of the rule that the applicable law to the succession rights of the family home on divorce and separation in the Civil Code widowed spouse is the law of the succession (not the law of articles. the matrimonial effects). ■ Spain comprises several territorial units, some of which have their own rules of law in respect of family and succession. Please see question 2.2. This situation affects the applicable law regarding the “EU Regulation on Succession” and the “EU Regulation on Matrimonial Property Regime” and treats Spanish nationals and other Member States nationals differently.

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Amparo Arbáizar holds a law degree from Málaga University, Spain, and an LL.M. from Trier University, Germany. She has over 15 years of experience advising international clients in international family law, law of succession and cross-border estate planning. She is a litigation expert in the Spanish jurisdiction and has acted as a Spanish legal expert before the Courts of the United Kingdom, Canada, USA, etc. She has a significant amount of experience involving all aspects of family law covering divorce, financial settlements, liquidation of matrimonial property regimes, arrangements for children, international child abduction cases, maintenance obligation enforcements, civil partnership matters, unmarried couples, same-sex marriages, etc. Amparo is a Family Mediator and regards mediation as a valuable alternative means of settling disputes. She is a research fellow for European Union family law and law of succession in the Higher Institute of Law and Economics (ISDE) of Madrid University. She has been awarded the Spanish Association of Family Lawyers Accolade 2018 for the best article on family law. She is fluent in English and German. She is a member of the International Academy of Family Lawyers (IAFL). She is listed as a lawyer by the German General Consulate in Spain. She is a member of the Spanish Association of Family Lawyers (AEAFA), a member of Lawyers in Europe focusing on international Parental Child Abduction (LEPCA), a member of ASIME, a member of the British Spanish Lawyers Association (BSLA), and a member of the German Spanish Lawyers Association (AHAJ-DSJV).

Arbáizar Abogados Tel: +34 678 50 88 91 Avenida Maisonnave, 41 – 7º H, E- 03003 Alicante Email: [email protected] Calle Kandinsky, 4 – 2º B, E- 29010 Málaga URL: www.arbaizarabogados.com Spain

Arbáizar Abogados is an independent law boutique focused on the international aspects of Family Law and Law of Succession. We are sure to keep ourselves up to date on international legislation, case law and practices. We are expert family mediators and also collaborate closely with tax advisers. The firm operates nationwide through offices in Alicante and Málaga. Our network of collaborating firms and connections spans the globe and allows us to plan and resolve the legal issues in a wide range of different jurisdictions. The personal relationship and trust that we have with our clients is crucial for us. www.arbaizarabogados.com

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Switzerland Switzerland

Nicolas Mossaz

OA Legal Sophia Lisa Ouadouri

12 Divorce 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, domicile, etc.? No. Swiss law imposes a mandatory submission of any comprehensive or partial agreement to the judge, who has to endorse the latter through a divorce judgment after checking whether When it comes to domestic cases, the Courts at the domicile the agreement really is the product of free will and careful of either spouse has mandatory jurisdiction over the divorce reflection from both spouses. action, as well as application for interim measures. The judge will take a particular look at the spouses’ arrange- When it comes to international cases, the situation differs ment on children, in order to ensure that the well-being of the depending on the country of domicile of both spouses. latter is fully respected. If both spouses are domiciled in Switzerland, competency lies with the Swiss Courts at the defendant’s domicile or the Swiss Courts at the plaintiff’s domicile if he/she is a Swiss citizen or 1.4 What is the procedure and timescale for a divorce? has resided in Switzerland for at least one year. In case the spouses are not domiciled in Switzerland and if The procedure depends on the path selected in order to divorce, one of them is a Swiss citizen, the Courts at the place of Swiss as detailed at question 1.2. citizenship have jurisdiction over the action if the said action The timescale for a divorce highly depends on the selected path cannot be brought at the domicile of one of the spouses or if it is and the Courts’ availabilities. As a mere indication, a divorce by unreasonable to require such. joint request with a comprehensive agreement might take up to a couple of months; meanwhile a more conflicting divorce might need few years to be fenced off, especially in Geneva. 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an uncontested divorce? 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. In Switzerland, three different paths might be followed in order to divorce. The Court’s decision generally aims to exhaust all matters ancil- First, spouses can jointly request divorce and either submit to lary to the principle of divorce itself. the judge (i) a comprehensive agreement on the divorce conse- However, a clear-cut decision only on the principle of quences (parental rights, liquidation of the matrimonial regime, divorce is not something completely excluded under Swiss law. child and spousal maintenance, division of the pension rights), Particularly and subject to a strong motivation, spouses can ask or (ii) a partial agreement containing elements on which they the Court to decide on the termination of their matrimonial fully agree. The judge is in charge of endorsing the agreement regime in different proceedings. and decide matters on which spouses cannot agree. Second, one spouse may independently petition for divorce 1.6 Are foreign divorces recognised in your jurisdiction? if, at the time of filing the petition, the spouses have lived apart If so, what are the procedural requirements, if any? for at least two years. The separation may have been freely consented to by the spouses or imposed by the circumstances. Foreign decisions on divorce are normally recognised in Finally, one spouse may independently petition for divorce Switzerland when handed down in the country of domicile or if the marriage has irretrievably broken down for compelling of habitual residence, or the state of nationality of one of the reasons for which he/she is not responsible. It must be proven spouses, or if recognised in one of these countries. that it would be considered abusive to force the requesting However, a decision rendered in a State of which neither of spouse to maintain the marriage until the end of the two-year the spouses or only the plaintiff one is a national can be recog- period mentioned above. nised in Switzerland only where: ■ at the time the application was lodged, at least one of the spouses was domiciled or habitually resident in that State and the respondent spouse was not domiciled in Switzerland;

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■ the defendant spouse has submitted without reservation to their will on this subject); (ii) the community of property (i.e. the jurisdiction of the foreign Court; or spouses share the assets that they decided to qualify as “joint ■ the respondent spouse has expressly consented to the property”); or (iii) the separation of assets (i.e. each spouse is the recognition of the decision in Switzerland. only owner of his/her assets and assumes his/her debts alone; To register a divorce pronounced abroad in the Swiss civil nothing is shared between the spouses). status register, the following must be submitted to the competent Swiss civil registry office: (i) the divorce decree with the 2.3 How does the court decide what financial orders to date on which it takes effect; and (ii) the decision concerning make? What factors are taken into account? the parental authority of any children of the couple with the date when it takes effect. When deciding on the principle and the amount of spousal maintenance, the Court takes into consideration the very circum- 1.7 Does your jurisdiction allow separation or nullity stances of the case at hand (such as the length of the marriage, proceedings? the allocation of duties within the marriage, etc.) as well as each spouse’s financial capabilities (including the spouses’ life- Yes, Swiss law allows for both types of proceedings. style during the marriage, the earning capacity and hypothetical First, spouses may petition for a separation action, called income of each spouse, taking into account their age and their a “request for provisional measures to protect the conjugal education level and professional experience, etc.). union”. It allows them to live separately for an indefinite period When deciding on the amount of child support, the Court of time and regulates the consequences of the separation such mainly takes into account the financial capabilities of the parents as the children and maintenance contributions questions. Such and the custody arrangements. an institution generally is the first step undertaken by spouses When it comes to determining the termination of the matri- who do not agree on the principle of divorce. Indeed, it will monial regime and other financial orders, the Court takes into mark the beginning of the two-year separation period required account, among others, the principles detailed in the answer to by law in order to unilaterally initiate divorce proceedings (see question 2.2. question 1.2). Also, spouses (and even public offices) may annul a marriage 2.4 Is the position different between capital and based on specific grounds provided by law. For instance, maintenance orders? If so, how? marriage annulment can be sought if a spouse has not married of his/her own free will or if one of the spouses was already married at the time of the wedding and the previous marriage As a principle, maintenance contributions are to be paid had not been dissolved by divorce or by the death of the previous monthly. Exceptionally, if the parties agree to it and if the judge spouse. allows it, a lump sum might replace such a monthly pay-out. When in the form of a monthly pay-out, the size of the contributions can be re-evaluated based on new and relevant circum- 1.8 Can divorce proceedings be stayed if there are stances, while a lump-sum payment does not provide for such proceedings in another country? flexibility.

Yes. If divorce proceedings are pending in another country 2.5 If a couple agrees on financial matters, do they and are expected to lead to a decision capable of recognition in need to have a court order and attend court? Switzerland in a reasonable period of time, parallel proceedings in Switzerland will be stayed. Yes, as detailed in the answer to question 1.3, each and every 22 Finances on Divorce agreement found between spouses related to the divorce principle and its ancillary matters must always be endorsed by a judge. 2.1 What financial orders can the court make on divorce? 2.6 How long can spousal maintenance orders last and are such orders commonplace? As an exemplative list, the Court can pronounce or approve (in case of a comprehensive agreement on these matters, see questions 1.2 and 1.3) the following financial orders: child and In Switzerland, the “clean-break” principle requires each spousal maintenance; division of marital assets and spouses’ ex-spouse to independently support him/herself after the pension rights accumulated during the marriage; and other divorce. However, a spouse may have to financially support his interim measures (such as freezing the spouses bank accounts, ex-spouse, depending on a few criteria such as the length and for instance). the allocation of duties within the marriage, the age, health and career prospects of the ex-spouse, etc. There is no clear time limit when it comes to a spousal mainte- 2.2 Do matrimonial regimes exist and do they need to nance. It will all depend on both spouses’ financial and personal be addressed by the court on divorce? Is there a default situations, re-evaluated where appropriate. matrimonial regime?

Yes. In Switzerland, spouses are free to select one of the three 2.7 Is the concept of matrimonial property recognised in your jurisdiction? marital regimes that fits their best interests, either: (i) the “participation in acquired property” (i.e. spouses equally share each and every asset they acquired during their marriage, which Yes, see question 2.2. is the “by default” scheme in case the spouses did not express

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2.8 Do the courts treat foreign nationals differently on 2.11 Can financial claims be made following a foreign divorce? If so, what are the rules on applicable law? Can divorce in your jurisdiction? If so, what are the grounds? the court make orders applying foreign law rather than the law of the jurisdiction? Yes, in case new and relevant facts are invoked by the parties, Swiss Courts have jurisdiction to hear claims that aim at In the context of an international divorce (i.e. international by amending or modifying a divorce decree, regardless of the reason of domicile or habitual residence of the spouses, nation- nationality of such decree if (i) the respondent is domiciled in ality(ies) of the spouses, place(s) of the spouses’ property), the Switzerland, or if (ii) the plaintiff has resided in Switzerland for Swiss judge is obliged to apply the foreign law designated by the at least one year or is a Swiss citizen. relevant private international law rules. Since January 1st, 2017, Swiss Courts have had exclusive juris- The matters dealt with in the context of such a divorce may be diction on the question of the division of the spouses’ pension governed by different laws. Basically, a distinction must be made rights linked to a Swiss occupational benefits institution. Hence, between the divorce pronouncement, and automatically subject a fortiori, any action aiming at amending or modifying such deci- to Swiss law and the various ancillary effects of the divorce. sion falls within the exclusive jurisdiction of the Swiss Courts. When it comes to the dissolution of the matrimonial property regime, the applicable law is determined based on a cascade approach. Except in the case that the spouses operate a choice 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, of law through a written agreement, it can either be the law of mediation, arbitration? the State in which both spouses are (or were last) domiciled simultaneously, or the law of their common State of citizenship. If there is none, Swiss law will apply. Mediation is being increasingly put under the spotlight when it The law applicable to maintenance obligations between comes to resolving all kind of disputes in Switzerland, especially parent and child is determined based on the Hague Convention divorce cases. Even during proceedings, judges are encour- of October 2nd, 1973 on the Law Applicable to Maintenance aged to, at any time, attempt to find understanding between the Obligations. parties. The question of the spousal pension rights accumulated in In case no common ground can be found between the two Switzerland will exclusively be determined based on Swiss law spouses, a classic Court litigation process then takes place. and by Swiss Courts who have exclusive jurisdiction on the matter (see question 2.11). 32 Marital Agreements

2.9 How is the matrimonial home treated on divorce? 3.1 Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is a foreign agreement? The allocation of the family home owned in common by the spouses is settled by the Court based on the conditions of the Swiss law allows for prospective spouses to conclude a marital selected matrimonial regime (see question 2.2). agreement (but does not force them to do so), before or after the Generally, in practice, one of the spouses takes over the house wedding. The spouses-to-be may choose, set aside or modify and makes a compensatory payment to the other. Mixed solu- their marital agreement within the limits of the law. tions are also possible. For instance, one spouse could give up It has to be noted that, when it comes to the matrimonial his/her share of the property and in return obtain a usufruct or property regime, it is in the interests of the spouses to conclude right to a share of income. The couple might also sell the prop- such a marital agreement should they want to select the regime erty and share the profit. they prefer. Otherwise, participation in the acquired property In case of a more conflicting divorce, the judge will allo- regime, as detailed in the answer to question 2.2, will automat- cate the family home to one of the spouses, based on an overall ically apply. assessment of the concrete needs of each spouse and those of At the time of the divorce, the judge will, in any case, evaluate the children. the fairness of such an agreement. In case of a lease, and where the interests of the children or Foreign marital agreements are usually recognised on matri- one spouse require so, the judge may transfer the rights and obli- monial regime questions, but the judge remains free to rule gations under the tenancy agreement to that spouse, provided differently on the other points. that this is not inequitable for the other. The previous tenant is jointly and severally liable for the payment of the rent. 3.2 What are the procedural requirements for a marital agreement to be enforceable on divorce? 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? Basically, the same principles applicable to the endorsement of a comprehensive/partial agreement on divorce and its ancillary To date, Switzerland does not have a trust law as such. matters, as detailed in the answer to question 1.3, apply. Nonetheless, foreign trusts have been recognised domestically In other words, the judge will investigate in order to estab- since the entry into force of the Hague Convention on the Law lish whether the spouses willingly and carefully concluded the Applicable to Trusts and their Recognition in 2007. marital agreement and that it is not manifestly unfair, while care- Currently, and since June 2018, a group of experts (put in place fully assessing the children question. by the Federal council) has been working towards the creation of a legal framework for the registration of a trust in Swiss law.

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3.3 Can marital agreements cover a spouse’s 52 Child Maintenance financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? Can they deal 5.1 What financial claims are available to parents on with financial claims regarding children, e.g. child behalf of children within or outside of marriage? maintenance)? In Switzerland, since both parents are jointly responsible for In principle, yes. supporting their child, irrespective of whether they are married, Swiss law does not clearly limit the scope of such a marital separated or divorced, whichever partner does not live with the agreement to the selection of the matrimonial regime. It is not child will have to pay child maintenance. excluded for prospective spouses to agree, in advance, on other Other than covering the child’s needs in terms of food, financial claims upon divorce. However, it should be kept in clothes, etc., the maintenance shall also cover the “subsistence mind, as detailed in the answer to question 3.2, that such an costs” of the custodial parent who dedicated his/her time to agreement is subject to the judge’s control, especially concerning take care of the child, depending on the financial capabilities children-related matters. of the parties. Basically, this covers the rent of the custodial parent, health insurance and other general living expenses. 42 Cohabitation and the Unmarried Family 5.2 How is child maintenance calculated and is it 4.1 Do cohabitants, who do not have children, have administered by the court or an agency? financial claims if the couple separate? What are the grounds to make a financial claim? In case of a conflicting discussion about child maintenance between the parents, the judge will decide on the size of such No. Partners living together without being married or in a regis- contributions based on the financial resources of both parents tered partnership do not enjoy the same social and legal rights and the financial needs of the child and the custodial parent. as a married couple. The child’s assets and income will be taken into account in the No specific mutual support claims exist by law based on a calculation. Basically, the idea is to maintain the level of the cohabitation relationship. The only claims that cohabitants couple’s lifestyle known by the child during the marriage. might try to make are the ones that can be based on standard In any case, the size of the maintenance contributions shall law, meaning simple partnership, co-ownership, etc. not exceed the means of the paying parent and drive him/her However, cohabitants can conclude an agreement on finan- to the minimum subsistence level, preventing him/her from cial matters in order to ensure some legal rights stemming from covering his/her own basic expenses (such as rent, health insur- their relationship. ance and general living expenses). It is to be noted that the Court may order that the child main- 4.2 What financial orders can a cohabitant obtain? tenance contributions be automatically increased or decreased in the event of changes in the child’s needs, the parents’ financial resources or the costs of living. At the time of the separation, a cohabitant cannot claim any financial order based on the relationship he/she had with his/ her partner, except if cohabitants concluded an agreement on 5.3 For how long is a parent required to pay child this very matter (see question 4.1). maintenance or provide financial support for their children? For example, can a child seek maintenance However, in case ex-partners have any children together, the during university? parent who devoted his/her time to take care of the couple’s child(ren) might receive financial support through child maintenance, as detailed in the answer to question 5.1. In principle, a parent is required to pay child maintenance until the child turns 18 years old. However, in case the child has not completed his/her educa- 4.3 Is there a formal partnership status for cohabitants tion by the time he/she reaches the age of majority and if the (for example, civil partnerships, PACS)? education is to be completed within a normal period of time, the parent must, to the extent of their means, continue to provide No, there is no such status. for his/her maintenance until his/her 25th birthday (approximately). As far as university studies are concerned, education is 4.4 Are same-sex couples permitted to marry or enter considered completed with a Master’s degree. other formal relationships in your jurisdiction? It is to be noted that if, as an adult, the child refuses to establish or maintain a minimum of contact with the parent who is to support him/her and if that parent has tried unsuccessfully to No; as at the time of writing, same-sex couples are not permitted establish such contact, that parent may not be required to pay for to marry in Switzerland. Nonetheless, they are able to conclude the child’s education. a registered partnership, which, to a large extent, is quite similar to marriage. 5.4 Can capital or property orders be made to or for the benefit of a child?

As a principle, child maintenance is to be paid monthly. Exceptionally, if the parties agree and if the judge allows it, which would require solid grounds to be given, a lump sum might replace such a monthly pay-out (see question 2.4).

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5.5 Can a child or adult make a financial claim directly 6.5 What factors does the court consider when making against their parents? If so, what factors will the court orders in relation to children? take into account? As mentioned in this chapter, the core guiding principle when Yes. When minor, to make such a claim, the child must be deciding on questions related to the children (such as custody or represented either by his custodial parent or by a curator named parental authority, for instance) is the well-being of the latter. The by the Court if the child and the circumstances require it. After judge will, in any situation (and even where the parents managed turning 18, such claim will be subject to the conditions detailed to find a comprehensive agreement these matters), have to assess in the answer to question 5.3. which solution best meets the child’s interests and needs.

62 Children – Parental Responsibility and 6.6 Without court orders, what can parents do Custody unilaterally? For example, can they take a child abroad?

6.1 Explain what rights of custody both parents have in As detailed in the answer to question 6.1, in case of joint parental your jurisdiction, whether (a) married, or (b) unmarried? authority, parents can and commonly have to take important decisions concerning their child (such as defining their place of In Switzerland, a distinction is to be made between parental residence). In case of a conflict on this very matter, the decision authority and child custody. will be entrusted to the judge. Parental authority refers to the various obligations parents In case of sole parental authority, the custodial parent is able have to honour towards their minor children (such as educa- to take these decisions alone but must inform the other parent of tion, financial support, etc.). Whether the parents are married such decisions in good time. or not, joint parental authority has been the rule in Switzerland since 2014, unless exceptional circumstances require the judge 6.7 Is there a presumption of an equal division of time to grant sole parental authority to one parent. In that configura- between separating or divorcing parents? tion, parents must take important decisions concerning the child together (such as his/her habitual residence, education, religion, etc.). However, joint parental authority does not mean shared No. It is a simple consideration that the judge will evaluate custody. in case parental authority is exercised jointly and if the father, When it comes to child custody, and in case parents cannot mother or child so requests. In any case, Swiss law gives priority find any agreement on this question, the decision will rest on to the child’s well-being when determining the division of time the shoulders of the judge who will assess the general situation between divorcing parents. in order to rule on this matter. Among others, and keeping in mind the child’s well-being, the judge will take into account the 6.8 Are unmarried parents treated in the same way parental capacity of the parents, their places of residence and as married parents when the court makes orders on the distance between them, the child’s own preferences, etc., in separation or divorce? order to take his/her decision. Generally, and other than on the question of child mainte- 6.2 At what age are children considered adults by the nance contributions, unmarried and married parents are far court? from treated equally with respect to separation and/or divorce proceedings. When it comes to child maintenance contributions, both At 18 years old. married and unmarried parents benefit from the same treatment on merits. The new law that came into force on January 1st, 6.3 What is the duration of children orders (up to the 2017 eliminated unequal treatment among children of unmar- age of 16 or 18 or otherwise)? ried parents and children of married ones through the generali- sation of the inclusion of the cost of their care in the calculation In principle, child orders are relevant until he/she reaches 18 of the child maintenance contribution (see question 5.1). years old. However, as detailed in the answer to question 5.3, the judge can order maintenance contributions to last until the 6.9 Is a welfare report prepared by an independent th child’s 25 birthday in case he/she pursues studies. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 6.4 What orders can the court make in relation to children? Does the court automatically make orders in In principle, it is the responsibility of the judge to evaluate and relation to child arrangements in the event of divorce? determine the child’s welfare, based on the circumstances of the case. When it comes to child-related matters, the judge compulsorily To this purpose, in divorce or separation proceedings, the acts, evaluates the situation based on the specific circumstances judge must hear the child before taking any decision that will of the case and takes a decision based on the child’s well-being. potentially impact his/her day-to-day life (such as the attribu- Even if the parents agreed on the questions of parental tion of the parental authority, for instance). The judge hears authority, custody, maintenance contributions, and visitation the child alone and takes precious care not to place him/her in rights, the final word goes to the judge. a confusing state or a conflict of loyalty towards his/her parents by asking direct questions that he/she cannot answer (such as which parent he/she prefers).

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However, such a hearing need not be conducted if the child is 7.2 Can the custodial parent move to another part of young (i.e. under 6 years old), or if the child’s personal develop- the state/country without the other parent’s consent? ment or any other good reason prevents the judge from giving any weight to his/her statements. In case of sole parental authority, the custodial parent is allowed The judge might consider that it is necessary to delegate the to move to another part of Switzerland without the other parent’s child’s hearing to a child specialist (usually the child protec- consent but has to notify him/her of the move in good time. tion service), which will be in charge of drawing up a report In case of joint parental authority, the custodial parent is only summing up the child’s narrative. allowed to do so if the change of the place of residence does not have serious consequences on the ability of the other parent to 6.10 Is there separate representation for children in your exercise parental authority and have contact with the child. jurisdiction and, if so, who would represent them, e.g. a lawyer? 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? Yes, in specific cases, the child’s well-being might command the judge to appoint a representative to represent the child’s inter- As in all proceedings relating to children and parental rights, the ests during the proceedings. This is especially the case: (i) where aim is to determine which solution best serves the interests and the parents adopt different positions on the fate of the child well-being of the child. (such as the allocation of residence or parental responsibility for To this purpose, the factors notably taken into account are the instance); (ii) where the child protection authority or one of the personal relations between the parents and the child maintained parents so requests; or (iii) if the Court doubts the merits of up to that point, the educational capacities and respective avail- the parents’ joints conclusions or is considering ordering a child ability of each parent, and the needs of the child guaranteeing protection measure. his/her harmonious development, particularly with regards to A child who has the capacity to consent (generally at the age the necessary stability of living conditions, including the child’s of 11 years old or more) may also request the appointment of preferences on this topic. such a representative. The law does not specifically require a lawyer to act as such a representative; the said person only has to be experienced in 7.4 If the court is making a decision on a child moving welfare and legal matters. to a different part of the state/country, what factors are taken into account?

6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or See question 7.3. grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to 7.5 In practice, how rare is it for the custodial parent to children? be allowed to relocate internationally/interstate?

No, only the spouses/parents have a say when it comes to the Nothing prevents a parent who benefits from sole custody to principle of divorce, its ancillary matters, and specifically, chil- relocate internationally/interstate, provided that the conditions dren-related ones. detailed in the answers to questions 7.1 and 7.2 are fulfilled and The child’s relatives might only be solicited during a prelimi- that the child’s welfare is respected. nary stage, especially at the time of establishment of reports that However, as soon as share custody is concerned, such reloca- may be enquired into by the Court during proceedings (mainly tion might be quite problematic, primarily if it affects the rights conducted by the child protection service; see question 6.9). of the other parent. As detailed in the answer to question 2.12, mediation is highly promoted and urged by the judge when it comes to matrimonial disputes. When the children question is raised, the judge may 7.6 How does your jurisdiction deal with abduction even force parents to attempt mediation. cases? For example, is your jurisdiction a party to the Hague Convention? 72 Children – International Aspects Switzerland is a party to the Hague Convention on the Civil Aspects of International Child Abduction of October 25th, 1980. 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? 82 Overview Joint parental authority (as detailed in the answer to question 6.1) requires the habitual residence of the child to be determined 8.1 In your view, what are the significant developments by both parents, via a common decision. in family law in your jurisdiction in the last two years? Only a parent who possesses sole parental authority is allowed to move to another state/country without the other parent’s Although this development dates back to 2017, the elimina- consent. However, the other parent must be kept informed of tion of unequal treatment among children of unmarried parents such a move in reasonable time prior to the departure. and children of married ones in terms of the calculation of child contributions (as detailed in the answer to question 6.8) marked a turning point with regard to equality in family law in Switzerland.

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8.2 What impact, if any, has the COVID-19 pandemic 8.4 What are some of the areas of family law which you had on family law in your jurisdiction to date, and is think should be looked into in your jurisdiction? likely to have over the next 12 months? It will be interesting to keep an eye on the evolution of the judi- The COVID-19 pandemic has mainly led to a downturn in and cial system’s approach to the resolution of family disputes upon congestion of the justice system (set aside urgent cases). separation, especially with regards to the children question. The pandemic situation also had a huge impact on visitation In our opinion, the so-called “Cochem method”, first developed rights. For instance, in Geneva, any visiting rights for children in Germany, is quite an interesting model. Briefly, it establishes placed in care as well as supervised visiting rights have been an “orderly cooperation” between the different professionals cancelled, even if no measures restricting usual visiting rights involved in the management of family conflict (be they judges, have been taken by the Swiss authorities to date. lawyers, experts or psychologists) and the parents of the child. This alternative and constructive dispute resolution method 8.3 To what extent and how has the court process and presupposes a common objective, shared by all actors involved other dispute resolution methods for family law been in the process, including parents, in favour of the peaceful reso- adapted in your jurisdiction in light of the COVID-19 lution of the conflicts in the child’s interests. In other words, pandemic (e.g. virtual hearings, remote access, the idea is to avoid post-separation conflict, which is highly paperless processes)? Are any of these changes likely to detrimental to the child’s development and well-being. remain after the COVID-19 crisis has passed?

The practice varies from one canton to another. In Geneva, for instance, nothing other than compliance with public health basic rules (i.e. wearing of masks, use of hydroalcoholic gel, social distancing) must be observed.

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Nicolas Mossaz is a partner at OA Legal, a well-established Geneva law firm. He has developed a specific area of expertise helping expatriates and foreign companies in Switzerland. He is the founder of the information hub Legal Expat Switzerland (http://www.legalexpat.ch). Nicolas has extensive experience representing clients in front of Swiss civil courts. He advises Swiss and international clients mainly in complex family law disputes, civil proceedings and cross-border litigation. In 2013, he was elected Deputy Judge at the Geneva Civil Court.

OA Legal Tel: +41 22 786 88 66 Place de Longemalle, 1 Email: [email protected] 1204 Genève URL: www.ochsnerassocies.ch Switzerland

Sophia Lisa Ouadouri graduated with a Bachelor’s degree in International Relations with a Law focus from the University of Geneva and is currently pursuing a Master’s degree in International and European Law at the same institute. She assists the firm’s lawyers in various areas of law, especially in Family Law. She is also part of the Legal Expat Switzerland team (http:// www.legalexpat.ch), a hub providing immigration services and legal advice to the expatriate community living and working in Switzerland.

OA Legal Tel: +41 22 786 88 66 Place de Longemalle, 1 Email: [email protected] 1204 Genève URL: www.ochsnerassocies.ch Switzerland

OA Legal brings together lawyers who are passionate about their profession and entrepreneurial spirit. The partners of the firm are all specialised in specific and complementary areas of law, to be able to offer our clients a global and efficient service, in line with the constant evolution of legal standards. We understand our clients because we share with them a passion for entrepreneurship. This spirit which drives us, and which has brought us together, motivates us to always find innovative and pragmatic solutions with the sole objective of meeting our clients’ needs. We shared university benches and gained experience in the largest and most reputable firms in Geneva. We work on building strong relationships, which we believe makes us highly dedicated team players so that we can build long-term relationships with our clients too. Last but not least, we are strongly committed to maintaining an environment in which participatory work, diversity and sustainability are highly privileged. www.ochsnerassocies.ch

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USA – Massachusetts USA – Massachusetts

Wendy O. Maureen Hickey McBrien

Alexander D. James L. Brick, Jones, McBrien & Hickey LLP Jones Brick

12 Divorce 1.4 What is the procedure and timescale for a divorce?

1.1 What are the grounds of jurisdiction for divorce Assuming there is no agreement for a joint petition, the party proceedings? For example, residence, nationality, seeking the divorce would file the complaint. The court then domicile, etc.? issues a summons which must be served on the defendant in hand within 90 days. Once service is completed, the parties Any person who has resided in Massachusetts for one year can engage in mandatory self-disclosure discovery. After the manda- file a complaint for divorce. However, if the cause of action tory exchange, additional discovery can be requested. The time for the divorce (for example, irretrievable breakdown of the standard for a typical divorce is 14 months from the date of filing marriage) occurs in Massachusetts at any time before a year of through the completion of a trial if a settlement cannot be reached. residency, a divorce can be filed immediately (Caffyn v Caffyn, 441 Mass. 487 (2004)). 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an uncontested divorce? While it is possible for a court to merely grant a divorce, it is not at all typical. A no-fault divorce is called an “irretrievable breakdown”, which is defined as a marriage that is broken beyond repair and with 1.6 Are foreign divorces recognised in your no probability of reconciliation (Chapter 208, sections 1A and 1B, jurisdiction? If so, what are the procedural requirements, Massachusetts General Laws (MGL)). if any? Fault grounds for divorce include: ■ Cruel and abusive treatment. Foreign divorces are recognised as valid if the parties partic- ■ Impotency. ipated in the proceedings and had the opportunity to benefit ■ Adultery. from due process rights, as those rights are interpreted under ■ Desertion. Massachusetts law. ■ Excessive use of alcohol or drugs. Registration of a foreign judgment is governed by MGL chapter ■ Sentence of confinement in a penal institution for five or 209D. Once registered, a defendant can object to enforce- more years, even if the spouse is not confined for five or ment based on the doctrine of comity. “Under [the] doctrine more years. [of comity], Massachusetts generally will recognize and enforce If the parties agree and sign a separation agreement, they valid judgments rendered by a foreign court” (emphasis in orig- can file a joint petition for dissolution of the marriage (Chapter inal). (Rayasizadeh v Niakosari, 94 Mass. App. Ct. 123, 129 (2018).) 208, section 1A, MGL). The court will then hold a hearing in However, such deference is subject to “certain limitations that, which the judge considers if the agreement is fair and reasonable for example, may bear on the jurisdiction of the foreign court or given the parties’ circumstances. If so, the agreement will be entity or implicate important public policy considerations within approved. The judgment of divorce nisi is automatically issued the Commonwealth”. (Ravasizadeh v Niakosari, supra at 129.) 30 days after the hearing, and becomes final 90 days later. “With respect to the enforcement of a foreign judgment, ‘a court If the parties do not agree, the divorce is contested. A in Massachusetts must be satisfied that (1) the foreign court had contested divorce cannot be granted sooner than six months jurisdiction over the parties and the subject matter, [and] (2) the after the contested divorce complaint is filed. procedural and substantive law applied by the foreign court was There is no mandatory period of separation before a divorce reasonably comparable to that of the Commonwealth’.” (Akinic- can be filed. Unal v Unal, 64 Mass. App. Ct. 212, 220-221 (2005).)

The parties must attend a court hearing in order to obtain a Annulment proceedings are permitted. The basis for annul- divorce. ment must relate to the “essentials of the marriage” contract.

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A marriage is void for: 2.3 How does the court decide what financial orders to ■ Polygamy or polyandry. make? What factors are taken into account? ■ Consanguinity (that is, incest). ■ Marrying during the 90-day divorce nisi period (Chapter When dividing assets, judges must consider the parties’: 207, section 6, MGL; Ross v Ross, 385 Mass. 30, 35 (1982)) (see ■ Length of marriage. above, Divorce). However, if the other spouse did not know ■ Conduct during marriage. that the nisi period had not ended, the marriage can be ■ Age. declared valid (Hamilton v Hamilton, 27 Mass. App. Ct. 1151 ■ Health. (1989)). A marriage is voidable when one party was induced to enter ■ Station in life. the marriage by the other through fraud. Under present law, an ■ Occupation. annulment case must be dismissed if a party dies before the case ■ Income. has been decided. ■ Sources of income. There is no concept of judicial separation in Massachusetts. ■ Vocational skills. ■ Employability. ■ Estate. 1.8 Can divorce proceedings be stayed if there are ■ Liabilities. proceedings in another country? ■ Needs. ■ Opportunity to acquire future capital assets. Yes, it is possible to obtain a stay of a Massachusetts proceeding ■ Opportunity to acquire future income. if there are proceedings pending in another country. In deciding ■ Children’s present and future needs. to issue, dissolve, or maintain a stay, a court can consider factors The judge may (and in practice will) also consider the parties’ including: contributions to the: ■ The domicile and residence of the parties and their minor ■ Acquisition of their respective estates. children. ■ Preservation of their respective estates. ■ Which party filed their case first, and in which jurisdiction. ■ Appreciation in value of their respective estates. ■ Which party was first served with a summons on the other ■ Family unit as homemakers. party’s case. ■ Whether the other forum has jurisdiction over either or both of the parties or the subject matter of the dispute. 2.4 Is the position different between capital and ■ Whether the parties have a pre- or post-marital contract maintenance orders? If so, how? and if so, whether there is a clear and specific choice of law or forum, or both. Yes. The court will divide the marital assets and debt based If the case could be heard in another jurisdiction, the court will on the factors stated above. Alimony (what we call mainte- compare the applicable laws of the two jurisdictions, including nance) is based on the need of the recipient and the ability of the whether, as the following terms are defined by Massachusetts obligor to pay but not to exceed 30–35% of the difference in the case law, the other jurisdiction: spouse’s respective gross incomes. ■ Provides substantive due process. ■ Determines custody based on the standard of the child’s 2.5 If a couple agrees on financial matters, do they best interest. need to have a court order and attend court? ■ Divides marital property using equitable division. ■ Is a more convenient forum. If the court considers that the application of the foreign juris- Yes. The only way to ensure a financial agreement will be diction’s laws would violate a public policy of Massachusetts or binding is to present it for court approval. However, there is the constitutional rights of its resident, Massachusetts courts will a mechanism for post-divorce modification of support to be assert jurisdiction, the stay will be dissolved, and the substantive doing jointly and handled administratively. issues will be tried. 2.6 How long can spousal maintenance orders last and 22 Finances on Divorce are such orders commonplace?

2.1 What financial orders can the court make on Alimony orders are common. In 2013, the legislature enacted divorce? alimony reform. Before then, alimony could be a lifetime obligation. Now there are durational limits to alimony based on the The court can order division of assets and debts and order number of years of marriage. For a 20-year marriage or longer, support for children along with alimony for a dependent spouse. alimony will end upon the payor spouse attaining normal retirement age as determined by the Social Security Administration. 2.2 Do matrimonial regimes exist and do they need to A shorter-term marriage will have a shorter alimony duration. be addressed by the court on divorce? Is there a default matrimonial regime? 2.7 Is the concept of matrimonial property recognised in your jurisdiction? Massachusetts is an equitable distribution state, meaning that the judges will divide marital assets equitably depending on the Yes. In fact, all property owned by either party to the marriage circumstances of the case pursuant to Chapter 208, Section 34 is considered part of the marital estate and subject to division in MGL. a divorce unless there is a pre-nuptial agreement. Even inher- The only way to create a property regime is with a pre- or itances and trusts can be divided in a divorce. post-nuptial agreement.

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2.8 Do the courts treat foreign nationals differently on ■ s It i deemed fair and reasonable at the time of signing divorce? If so, what are the rules on applicable law? Can (Osborne v Osborne, 384 Mass 591 (1981)). the court make orders applying foreign law rather than ■ s It i deemed fair at the time of execution and conscion- the law of the jurisdiction? able at the time of enforcement (DeMatteo v DeMatteo, 436 Mass. 18 (2002)). Waivers of alimony will be enforced if the Foreign nationals are not treated differently in a divorce than US result is not unconscionable (Austin v Austin, 445 Mass 591 citizens. The court will only apply foreign law if there is a valid (2005)). contract with a choice of law provision such as a pre-nuptial agreement or a divorce agreement being registered for enforce- Post-nuptial agreements ment or modification. A post-nuptial agreement is only enforceable if the court determines that all the following conditions are met: 2.9 How is the matrimonial home treated on divorce? ■ Each party had an opportunity to obtain separate legal advice with a freely appointed counsel. ■ There was no fraud or coercion in obtaining the agreement. The matrimonial home is an asset of the marital estate. It can be ■ Both parties fully disclosed all their assets, liabilities, assigned to either party as part of the asset division or it can be ordered sold with the sale proceeds divided among the parties. income, and potential for inheritances before the agreement was signed. ■ Each spouse knowingly and explicitly agreed in writing to 2.10 Is the concept of “trusts” recognised in your accept the terms of the agreement and thereby waived the jurisdiction? If so, how? right to a judicial determination of an equitable division of assets and all other marital rights in the event of a divorce. Trusts are recognised in Massachusetts. If a party to a divorce is ■ The terms of the agreement are fair and reasonable at a beneficiary of a trust, it is possible, in certain circumstances for the time of signing and at the time of divorce. (This is the court to divide the interest in the trust or to order the bene- because the parties owe a fiduciary duty to each other after ficiary spouse to pay support (child support or alimony) based marriage.) on income received from the trust. Typically, trust distributions will be divided on an if and when received basis. 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance 2.11 Can financial claims be made following a foreign or compensation, or are they limited to the election divorce in your jurisdiction? If so, what are the grounds? of the matrimonial property regime? Can they deal with financial claims regarding children, e.g. child Financial claims can be made following a foreign divorce if maintenance)? such claims were not raised during the foreign divorce process. Oftentimes, support or asset division are not addressed in foreign Marital agreements can cover asset division and alimony but not divorce judgments and can occur after the fact in Massachusetts child support. upon filing a Complaint in Equity. 42 Cohabitation and the Unmarried Family 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, 4.1 Do cohabitants, who do not have children, have mediation, arbitration? financial claims if the couple separate? What are the grounds to make a financial claim? Massachusetts recognises mediation, arbitration and conciliation to resolve financial disputes. Some of these resources are Cohabitants do not have financial claims upon separation unless binding; most are not. there are children. 32 Marital Agreements 4.2 What financial orders can a cohabitant obtain? 3.1 Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is A cohabitant can obtain child support orders if there are minor a foreign agreement? or dependent children.

Massachusetts will enforce valid pre- and post-nuptial agree- 4.3 Is there a formal partnership status for cohabitants ments entered into in Massachusetts and in other countries so (for example, civil partnerships, PACS)? long as they meet the standards for validity in the location where they were entered into and meet the standards for enforcement in Massachusetts (for pre- and post-nuptial agreements). No. Same-sex marriage is legal in Massachusetts so there is no status for non-married cohabitants. However, if a same-sex couple has a civil partnership in a foreign jurisdiction which 3.2 What are the procedural requirements for a marital permits such partnerships in lieu of marriage, Massachusetts will agreement to be enforceable on divorce? recognise the partnership and can dissolve the partnership.

A pre-nuptial agreement can only be valid in Massachusetts if: ■ Before signing the agreement, each party fully discloses 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? to the other all of his or her assets, liabilities, potential for inheritances, income, and expenses (Rosenberg v Lipnick, 377 Mass. 666 (1979)). Massachusetts permits same-sex marriage.

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52 Child Maintenance 5.4 Can capital or property orders be made to or for the benefit of a child?

5.1 What financial claims are available to parents on behalf of children within or outside of marriage? No, but parties can agree to gift property to or for the benefit of a child as part of a divorce settlement. For unmarried parents, a claim can be made for contribution toward the cost of medical bills during pregnancy and the birth 5.5 Can a child or adult make a financial claim directly of the child. against their parents? If so, what factors will the court For married parents and after the birth of the child to unwed take into account? parents, the most common financial claims are for: ■ Child support and contribution to the cost of health It is possible for a child who reaches majority to file a contempt insurance. action for non-payment of child support if the custodial parent ■ A life insurance policy to secure the child support cannot do so. obligation. ■ Uninsured medical expenses. 62 Children – Parental Responsibility and ■ Extracurricular activities (including equipment necessary Custody for participation, usually with an annual cap). ■ Day-care expenses. ■ Pre-school costs (pre-school is not free in Massachusetts). 6.1 Explain what rights of custody both parents have in ■ Private school tuition (this is usually only permitted if your jurisdiction, whether (a) married, or (b) unmarried? the children have historically attended private school and there is an ability to continue to pay such expenses). (a) Married ■ College expenses. In making an order regarding the temporary or final custody of children, the rights of the parents, in the absence of miscon- duct, are deemed to be equal, and custody must be determined 5.2 How is child maintenance calculated and is it administered by the court or an agency? on the basis of the children’s happiness and welfare (Chapter 208, section 31, MGL). In making a decision about legal or physical custody, a judge The US Federal Government requires that all states implement can consider “whether or not the child’s present or past living the Child Support Guidelines (CSG) to allow child support conditions adversely affects his physical, mental, moral, or being paid by the federal and state governments to parents of emotional health” (Chapter 208, section 31, MGL). When issuing minor children. Each state must review its CSG every three any temporary or permanent custody order, the court must years. The most recent revision of the Massachusetts guidelines “consider evidence of past or present abuse toward a parent took effect in September 2018. or child as a factor contrary to the best interest of the child” The current CSG provides a formula that must be used to (Chapter 208, section 31, MGL). calculate child support. Child support is based on the parties’ In deciding issues involving child custody, the overriding gross income, including non-taxable income. Deductions are concern of the court must be the promotion of the child’s best permitted for the following three reasons: interests and general welfare. ■ Expenses for day-care. ■ Health and dental insurance. (b) Unmarried ■ Support orders to children of prior relationships. Mothers of children born out of wedlock are presumed to have There is a rebuttable presumption that the CSG formula must sole custody unless and until the father obtains an acknowledg- be used in all support orders. A judge must make written find- ment or judgment of paternity, at which point he can ask for ings for departing from the formula. equal custody rights and the same standards will apply as for The CSG allows for scenarios of: married parents. ■ Equal parenting time (anything between one third and half the time). ■ Primary parenting time (that is between one third and 6.2 At what age are children considered adults by the two thirds of the time). court? ■ SG The C also now provides differently for children over 18 years of age, as opposed to those under 18 years of age. Children are considered adults by the court at age 18. Children over 18 years of age will receive less of a child support order on the assumption that the parties are also 6.3 What is the duration of children orders (up to the contributing to the child’s college expenses. age of 16 or 18 or otherwise)?

5.3 For how long is a parent required to pay child Custody orders can be in place until a child is 18 but it is widely maintenance or provide financial support for their accepted that once a child is 16 or 17, the child will “vote with children? For example, can a child seek maintenance their feet”. during university?

Child support ends upon the earlier of a child attaining age 18 6.4 What orders can the court make in relation to or graduation from high school. But, if the child graduates high children? Does the court automatically make orders in relation to child arrangements in the event of divorce? school and remains dependent on a parent for support, child support can go to age 21. However, if a child is still in under- graduate college, child support can go to the earlier of the child’s The court can make orders regarding legal custody (deci- graduation from college or age 23. sion-making) as well as physical custody and parenting time or

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visitation and will do so as long as plead in the complaint for 6.8 Are unmarried parents treated in the same way divorce. While the divorce action is pending, the judge typi- as married parents when the court makes orders on cally enters temporary orders of custody and visitation but only separation or divorce? if requested to do so by a party. In issuing temporary orders, there is a rebuttable presumption that the best interest of the Once paternity is established, unmarried parents who are sepa- child is served by maintaining the status quo while the action is rating are treated the same as married parents who are divorcing. pending (Custody of Kali, 439 Mass. 834 (2003)).

6.9 Is a welfare report prepared by an independent 6.5 What factors does the court consider when making professional or is the decision taken by the Judge alone? orders in relation to children? If so, does the child meet the Judge?

The court can consider the following factors in making child If there is a dispute over custody, the judge can appoint a custody orders: guardian ad litem (GAL) to investigate and report to the court ■ Age of the child and the parties. ■ Physical and emotional health and needs of, or danger to, on what parenting plan would be in the best interest of the chil- the child, in the past, now, and in the future. dren. The GAL can be either a family law attorney or a mental ■ Parties’ physical and emotional health. health professional. The GAL, once appointed, will speak with ■ Child’s school performance, special interests, and the parties, collateral sources, and usually the children. They activities. will then prepare their report and file it in court. Counsel for ■ Ability of each party to foster the growth and development the parties receive copies of the reports and the parties can read of the child. the reports but cannot have a copy. Judges do not meet with ■ Ability of each party to provide continuity and stability of children in Massachusetts. environment. ■ Relationship and attachments of the child to the parties, 6.10 Is there separate representation for children in your parents, siblings, and any other person who may have a jurisdiction and, if so, who would represent them, e.g. a significant effect on the child. lawyer? ■ Ability of each party to cooperate with those persons to whom the child has such a relationship and attachment, and to provide them access to the child. Depending on the age(s) of the child(ren), the court may ■ Acts or omissions of each parent that may indicate the appoint an attorney for the children from the ARC (Attorneys nature of the existing parent-child relationship. Representing Children) programme, a volunteer lawyers ■ Excuse, justification or reason for acts or omissions of the programme where family law attorneys represent children in parents. certain custody disputes. Some judges regularly appoint ARC ■ Expressed preferences of the child, provided that the court counsel when there are children age 12 years or older. Other has found the child to be of sufficient age and under- judges never appoint ARC counsel. If appointed, the ARC standing to express such a preference. attorney will represent the children’s interests in court. ■ Motivation of the parties seeking custody. ■ Length of time the child has resided in a party’s 6.11 Do any other adults have a say in relation to the environment. arrangements for the children? E.g. step-parents or ■ Employment of each party. grandparents or siblings. What methods of dispute ■ Financial or emotional support of the child in the past, resolution are available to resolve disputes relating to present and future. children? ■ Amount of time spent away from the home by each party, the adequacy of childcare arrangements, and the In certain limited circumstances, another adult can be consid- programmes available to assist the parties to promote the ered a “de-facto” parent, in which case they would have rights best interests of the child. to parenting time. Grandparents can seek grandparent visita- ■ Geographical accessibility of persons to whom the child has a significant relationship and attachment. tion but, generally, that only happens when a parent is unfit or ■ Other factors that the court considers of relevance to its deceased. determination of custody. 72 Children – International Aspects 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? Absent a court order, parents can travel domestically and abroad with children. A parent cannot permanently remove a child Only if permitted to do so by a court. from Massachusetts, however. 7.2 Can the custodial parent move to another part of 6.7 Is there a presumption of an equal division of time the state/country without the other parent’s consent? between separating or divorcing parents? Only within certain distances. If the distance is so great that No. The judges will take into consideration the historical changes would need to be made to a parenting plan, permission arrangement of the family. If a parent stayed at home or if there would need to be obtained as if it were an out of state removal. was a primary caretaker, that parent will usually be awarded most of the parenting time and responsibilities.

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7.3 If the court is making a decision on relocation of a 82 Overview child abroad, what factors are taken into account?

8.1 In your view, what are the significant developments When seeking permission to permanently remove a child from in family law in your jurisdiction in the last two years? the jurisdiction, the ultimate issue is the best interest of the child, a factor that depends on the custodial arrangement. If the Taxation of alimony parent seeking removal is the primary physical custodian of the In 2018, the Tax Cuts and Jobs Act (TCJA) passed by Congress child, the court will apply the “real advantage test” and deter- took effect. The TCJA made all future alimony obligations after mine whether: 31 December 2018 tax-free. This means that the obligor can ■ The custodial parent demonstrates a “real advantage” to no longer deduct alimony on their federal tax returns and the the move (that is, a good and sincere reason for wanting to recipient no longer has to claim alimony receipts as income on remove the child). their federal tax return (orders issued prior to 31 December 2018 ■ The new location offers a better support network or job are grandfathered as deductible/includible). However, alimony opportunity, including whether it is the location of that payments are still deductible/includible on state income tax parent’s new spouse’s residence. returns in Massachusetts. This has created significant tax prob- ■ The move improves the life of the custodial parent (for lems in the amounts of new alimony orders. example, so the parent can be with a new spouse, or accept A bill is pending to address the percentage of alimony to be a better paying job) and therefore that of the child. awarded now that alimony is no longer a federal taxable event. However, if the parents have shared physical custody of the The bill seeks to change the calculation from 30% to 35% of the child (although not necessarily equally), the “real advantage test” difference in the parties’ incomes to 22% to 27% of the differ- is not used. Instead, a best interest test is used (one that is not ence in the parties’ respective incomes. tied to the interest of one parent). In such cases, both parents have equal rights and the weight shifts from one parent’s advantage to the detrimental impact such a move may have on the rela- 8.2 What impact, if any, has the COVID-19 pandemic had on family law in your jurisdiction to date, and is tionship between the child and the non-moving parent (Mason v likely to have over the next 12 months? Coleman, 447, Mass. 177, 185 (2006)). The Probate Court has been closed to all non-emergencies since 7.4 If the court is making a decision on a child moving March 17, 2020. While the court says they re-opened as of July to a different part of the state/country, what factors are 13, 2020 for trials, most trials are starting to be re-scheduled taken into account? remotely via Zoom conference. During the height of the pandemic, emergencies were, with See question 7.3. few exceptions, being held electronically. The courts are starting to hear non-emergent motions and pre-trial conferences by telephone and Zoom conference. Each county has a 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? different process for filing and setting up hearings. Within each county, different judges are doing different things – some hold Zoom hearings, some telephone hearings, some just postpone It is a relatively common occurrence. everything. There is no uniformity or predictability and things change regularly, often with little to no notice. 7.6 How does your jurisdiction deal with abduction With that being said, generally, matters can now be filed cases? For example, is your jurisdiction a party to the with the court by e-file. Pleadings can be served on opposing Hague Convention? counsel by email. Discovery deadlines are being expanded as are deadlines for GAL reports in child custody evaluations. You cannot currently compel an in-person deposition (they are being In the US, international child abduction is a matter of federal conducted by Zoom or being deferred). Recently, Massachusetts law. The USA is a party to the HCCH Convention on Civil passed an act permitting notarisation by video conference. Aspects of International Child Abduction 1980 (Hague Child While there are no reported cases, the Chief Justice of the Abduction Convention). On ratifying the Convention, the US Probate Court issued a letter early on in the pandemic stating Congress passed the International Child Abduction Remedies that child custody arrangements and parenting plans should not Act (ICARA) to implement and enforce the Convention (Title be interrupted by the stay at home advisories. That being said, 42, sections 11601 et seq., United States Code (USC)). many parents and/or children are immunocompromised and Under the ICARA, the parties can file their case in either the refusing to engage in in-person parenting exchanges. US District Courts (USDCs) or in a state court. The courts This “new normal” is unlikely to change for the foreseeable have the power to promptly order the return of the abducted future. or wrongfully retained children to their habitual residence. The Hague Child Abduction Convention requires that international abduction cases must be heard and decided in six weeks. 8.3 To what extent and how has the court process and However, delays have no adverse consequences for the court. other dispute resolution methods for family law been adapted in your jurisdiction in light of the COVID-19 pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to remain after the COVID-19 crisis has passed?

Virtual and telephonic hearings are being utilised and are likely to continue into the future. We are now able to E-file documents in state court, which is also likely to continue.

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8.4 What are some of the areas of family law which you agree to follow the rules applicable to commercial disputes think should be looked into in your jurisdiction? (Chapter 251, MGL). They can also engage in non-binding arbitration on custody and child support issues, subject to de novo review by the court (that is, the court will look afresh at the Family law arbitration statute merits of the case). Currently there is no specific statute on family law arbitration in Massachusetts. A bill has been re-filed in the legislature for the adoption of such a law. Divorcing couples who use arbitration

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Wendy O. Hickey focuses her practice in all areas of family law with particular interest in international matters, from international kidnappings to division of foreign assets to registering and enforcing foreign orders. Wendy has been working in the area of family law since 1994, initially as a paralegal then, after attending law school at night, being admitted to the bar in 2003. Wendy is also admitted to practise in the U.S. Court of Appeals (2007) and U.S. Supreme Court (2011). Selected as a Rising Star by Super Lawyers in 2010–2012, she was then selected as a Super Lawyer from 2013 to date and for the past two years has been named in the Top 50 Women Lawyers in New England. A fellow in the International Academy of Family Lawyers (IAFL), Wendy serves on the Board of Managers for the USA Chapter. She also serves on the Board of Managers for the Massachusetts Chapter of the American Academy of Family Lawyers. Before joining Brick, Jones, McBrien, & Hickey, Wendy practised at Nissenbaum Hickey, LLP.

Brick, Jones, McBrien & Hickey LLP Tel: +1 617 494 1227 233 Needham Street, Ste. 203 Email: [email protected] Newton, MA 02464 URL: www.brickjones.com USA

Maureen McBrien is a seasoned Massachusetts family law practitioner. Her career started as a law clerk in the Massachusetts Probate and Family Courts followed by eight years in the domestic relations department at Todd & Weld LLP in Boston. Maureen then joined as a partner the firm that became Brick, Jones, McBrien & Hickey LLP. Maureen has significant experience at both the trial and appellate levels in a vast array of family law matters. She has particular expertise in alimony cases, addressing the numerous arguments and issues that have arisen since alimony reform was enacted in 2012. She also has niche expertise in family law-related litigation that arises from surrogacy and assisted reproduction.

Brick, Jones, McBrien & Hickey LLP Tel: +1 617 494 1227 233 Needham Street, Ste. 203 Email: [email protected] Newton, MA 02464 URL: www.brickjones.com USA

Alexander D. Jones focuses his practice in all areas of family law, ranging from mediation, to negotiating divorce agreements outside of court, to the litigation of domestic-relations proceedings at both the trial and appellate levels. He can assist clients with the division of assets, child support and alimony, tax advice and resolving child-custody disputes. Alex has also been appointed by various Justices of the Probate and Family Court to serve as a guardian ad litem, a parent coordinator and a discovery master. Alex is actively involved in the Association of Family and Conciliation Courts (AFCC), an international interdisciplinary organisation of lawyers, judges and mental-health professionals dedicated to improving the court process for children.

Brick, Jones, McBrien & Hickey LLP Tel: +1 617 494 1227 233 Needham Street, Ste. 203 Email: [email protected] Newton, MA 02464 URL: www.brickjones.com USA

James L. Brick has tried a wide range of family law cases involving custody-, removal-, property division- and support-related issues in Middlesex, Suffolk, Norfolk, Plymouth and Essex County Probate and Family Courts. In addition to his trial expertise, Jim is certified as a collaborative lawyer by the Massachusetts Collaborative Law Counsel and recognises that, in most family law cases, a negotiated settlement is the preferred method of resolution. Given his wealth of knowledge and experience, Jim is also frequently called to serve as conciliator or arbitrator to bring contested matters to resolution. Jim has been appointed by the Middlesex Probate and Family Court to serve as a guardian ad litem and special master in numerous family law cases.

Brick, Jones, McBrien & Hickey LLP Tel: +1 617 494 1227 233 Needham Street, Ste. 203 Email: [email protected] Newton, MA 02464 URL: www.brickjones.com USA

The law firm of Brick, Jones, McBrien & Hickey LLP, focuses on all aspects We have a network of financial and tax experts, mental health profes- of family law practice ranging from relatively simple uncontested matters sionals, and business and real estate valuation experts with whom we to complex and prolonged litigation and trials. The attorneys of the firm consult in order to best serve our clients. have vast experience in handling all types of domestic relations matters, www.brickjones.com including: divorce; post-judgment modifications and enforcement actions; pre-nuptial and post-nuptial agreements; abuse prevention orders; child custody disputes (including international child custody matters); paternity actions; equity matters; and grandparent representation. Our attorneys also argue before the appellate courts and serve in a variety of neutral capacities, including as mediator, conciliator, arbitrator and special master.

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USA – New York York – New USA

Cohen Rabin Stine Schumann LLP Gretchen Beall Schumann

12 Divorce ■ Irretrievable breakdown of the marriage for a period of at least six months, provided that one party states so under oath. (The court will not issue a Judgment of Divorce 1.1 What are the grounds of jurisdiction for divorce until the ancillary custodial and economic issues have been proceedings? For example, residence, nationality, resolved.) domicile, etc.? The parties may be granted an uncontested divorce, either in the event of one party’s default (failure to appear and defend) The parties must meet jurisdictional requirements, found in New or in the event that neither party is contesting the cause of York Domestic Relations Law (“NY DRL”) §230, as follows: action (grounds). Parties often submit uncontested divorce ■ The marriage occurred in New York, one party has resided in filings following a settlement. These documents would New York continuously for at least one year immediately prior include a proposed Judgment of Divorce; if there is litigation to the commencement of the action (“commencement”) and and the parties appear at a Preliminary Conference before the that party remains a resident as of commencement. court, the parties must indicate at that time whether they have ■ The parties have resided in New York as Husband and resolved grounds for divorce. Even when the parties indicate Wife and one party has resided in New York continuously that the grounds for divorce are resolved, in most instances the for at least one year immediately prior to commencement. Judgment of Divorce is not granted until the conclusion of the ■ The cause of action has arisen in New York and both parties proceedings. are residents at commencement or one party has resided in New York continuously for at least one year immediately prior to commencement. (However, see Stancil v. Stancil, 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a 47 Misc.3d 873 [Sup. Ct., N.Y. Co. 2016], where the trial “private” divorce, i.e. without any court involvement? court found under the facts presented that a party could not accelerate the two-year residency requirement by alleging one year of residency coupled with no fault grounds.) No, the parties do not need to attend Court, provided that the ■ Either party has resided in New York for a continuous necessary submissions have been filed with the Supreme Court period of two years prior to commencement. of the State of New York, in the county where the parties are divorcing. It is not possible to procure a divorce without the Supreme Court’s entry of a Judgment of Divorce, even if the 1.2 What are the grounds for a divorce? For example, matter is resolved without court intervention. is there a required period of separation, can the parties have an uncontested divorce? 1.4 What is the procedure and timescale for a divorce? Grounds for divorce are set forth in NY DRL §170(1)-(7), as follows: There is no mandatory timescale and courts maintain discretion ■ Cruel and inhuman treatment (the conduct of the with respect to the length of individual proceedings. Courts in defendant must endanger the physical or mental well-being some counties have established timescale guidelines by level of of the plaintiff as to render it unsafe or improper for the case complexity. plaintiff to cohabit with the defendant). ■ Abandonment (actual or constructive, for a period of one 1.5 Can a divorce be finalised without resolving other or more years). associated matters? For example, children and finances. ■ Imprisonment (defendant incarcerated for three or more consecutive years after the marriage). ■ Adultery. Upon consent or court approval, and with the exception of NY ■ Living separate and apart for one or more years pursuant DRL §170(7) (irretrievable breakdown), the cause of action may to a written separation agreement which was subscribed be bifurcated from the ancillary relief, but this is atypical. The by the parties and acknowledged or proved in the form Supreme Court, which hears all divorce actions, may also refer required for a deed to be recorded or pursuant to a decree/ relief (e.g. custodial and child support issues) to Family Court judgment of separation; the plaintiff must have substan- for resolution, as set forth in New York’s Family Court Act. tially performed all the terms and conditions of the agree- The New York courts may also address limited issues where ment or decree/judgment. another jurisdiction is the forum in which one or more requests

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for ancillary relief must be heard (e.g. the parties are divorcing 2.5 If a couple agrees on financial matters, do they in New York and addressing the ancillary financial matters in need to have a court order and attend court? New York, but the custody/access matters must be heard in a different state/country which is the child(ren)’s home state or The couple does not need to attend court, but they will need to which otherwise has jurisdiction over the child(ren)). obtain a Judgment of Divorce, which is in the form of a court order. If the matter is simple, and there is no property distri- 1.6 Are foreign divorces recognised in your bution or other relief, the parties may submit an uncontested jurisdiction? If so, what are the procedural requirements, divorce packet which will result in a Judgment of Divorce. if any? For more complex matters, the parties may submit a written Settlement Agreement or Stipulation of Settlement, acknowl- Yes, provided that they do not violate public policy. If a party edged or proved in the manner required to entitle a deed to be is asking a court to enforce the provisions of a foreign divorce, recorded, with uncontested divorce filings, which will likewise then the party would make an application for recognition and/ result in a Judgment of Divorce. or registration of the foreign decree, depending upon the provisions sought to be enforced (e.g. financial, custodial, etc.). 2.6 How long can spousal maintenance orders last and are such orders commonplace? 1.7 Does your jurisdiction allow separation or nullity proceedings? Spousal maintenance orders may be interim (pendente lite) or final (following the resolution of an action by settlement or court Yes. Actions may be maintained to void a marriage, for annul- order). Spousal maintenance is frequently durational and under ment or separation (NY DRL §§5, 6 and 7, 140 and 200, certain circumstances, lifetime maintenance may be awarded. respectively). New York has adopted both Temporary and Post-divorce maintenance guidelines, at NY DRL §236B, which provide for a presumptive amount and deviations from the presump- 1.8 Can divorce proceedings be stayed if there are tive amount in circumstances where the presumptive amount proceedings in another country? would be unjust or inappropriate; in that case, the court will consider various factors contained within the statute. In the Yes, they can. case of post-divorce maintenance, the statute provides duration guideposts, which are percentage ranges applied to the length 22 Finances on Divorce of the marriage. Such orders are commonplace where a party is the dependent 2.1 What financial orders can the court make on spouse. divorce? 2.7 Is the concept of matrimonial property recognised The court may make orders which distribute marital and sepa- in your jurisdiction? rate property, award spousal support and/or necessaries, grant child support and direct that a party maintain disability and/ Yes, NY DRL contains a definition of “marital property” at or life insurance. The court may also award counsel and expert §236B(1)(c). This includes “all property acquired by either or fees to the less monied spouse. both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimo- 2.2 Do matrimonial regimes exist and do they need to nial action, regardless of the form in which title is held […]. be addressed by the court on divorce? Is there a default Marital property shall not include separate property as herein- matrimonial regime? after defined”. Separate property is defined in §236B(1)(d) as “(1) property acquired before marriage or property acquired New York is an Equitable Distribution state. The definitions by bequest, devise, or descent, or gift from a party other than of marital and separate property are contained within NY DRL the spouse; (2) compensation for personal injuries; (3) prop- §236B(1). Please see question 2.7. erty acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) prop- 2.3 How does the court decide what financial orders to erty described as separate property by written agreement of the make? What factors are taken into account? parties which conforms with DRL §236B(3)”.

The court considers 15 factors set forth in NY DRL §236B(5). 2.8 Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can 2.4 Is the position different between capital and the court make orders applying foreign law rather than maintenance orders? If so, how? the law of the jurisdiction?

Yes, support orders are calculated pursuant to formulaic guide- Foreign nationals are not treated differently upon divorce. New lines. The court may also consider potential factors, distinct York law will be applied unless there is a marital agreement from the distribution factors, which are set forth in the containing applicable choice of law provisions which require the Temporary and Post-divorce maintenance guidelines at NY application of foreign law. DRL §236B.

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2.9 How is the matrimonial home treated on divorce? other bases which might render an agreement, or certain of its terms, unenforceable (e.g. the agreement was procured by fraud, duress, coercion or contains unconscionable provisions). The court has the discretion to distribute the home to either party, to issue an order directing the home to be sold (upon decision after trial unless the parties consent earlier), either imme- 3.2 What are the procedural requirements for a marital diately or in the future. If one party retains the marital resi- agreement to be enforceable on divorce? dence as his or her distribution, the other party will typically receive a credit for his or her interest in the marital equity. To For a New York agreement to be enforceable, it must be the extent a party meets his or her burden of proof that he or subscribed by the parties and acknowledged or proved in the she invested separate property into the marital residence, the form required for a deed to be recorded. These formalities, separate property may be returned prior to distribution of the including the form acknowledgments, are found in New York’s remaining proceeds/equity. Real Property Law.

2.10 Is the concept of “trusts” recognised in your 3.3 Can marital agreements cover a spouse’s jurisdiction? If so, how? financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? Can they deal The court may consider distributions from a trust in deter- with financial claims regarding children, e.g. child mining a party’s income. To the extent that marital assets have maintenance)? been utilised to acquire property held by a trust, that property might, in certain circumstances, be deemed marital property or result in distribution credits. Marital agreements may cover the spouses’ financial obligations during the marriage and/or financial claims upon divorce, including, without limitation, maintenance, distribution and 2.11 Can financial claims be made following a foreign counsel/expert fees. The agreement might outline a process for divorce in your jurisdiction? If so, what are the grounds? the valuation and distribution of assets with specificity. Marital agreements often address estate and other rights upon death of Financial claims can be made following a foreign divorce, to a party. Where there are existing children of the marriage, a the extent that issues are left open by the foreign judgment for marital agreement may address child support, provided that the enforcement and/or modification by another jurisdiction or provisions of the marital agreement comply with the manda- where the laws of the State of New York allow for enforcement tory language and representations set forth in New York’s Child and/or modification of the foreign judgment. Support Standards Act.

2.12 What methods of dispute resolution are available 42 Cohabitation and the Unmarried Family to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.1 Do cohabitants, who do not have children, have financial claims if the couple separate? What are the Alternative dispute resolution (mediation, arbitration and/or grounds to make a financial claim? collaborative law) is available and may be entered into voluntarily by the parties, to be conducted by privately retained individuals. There is no relief available under NY DRL. There may be reme- Alternative dispute resolution programmes are also avail- dies available in a civil suit, especially if the parties entered into able in many county courts and judicial districts, which either a cohabitation agreement or otherwise maintain a basis for court mandate party participation or permit voluntary participation intervention (e.g. civil litigation related to the disposition of a by parties and/or their attorneys (e.g. matrimonial mediation jointly titled asset). programmes, matrimonial neutral evaluation programmes). 4.2 What financial orders can a cohabitant obtain? 32 Marital Agreements This is not applicable in our jurisdiction, with the exception of 3.1 Are marital agreements (pre- and post-marriage) those outlined in question 4.1 above. enforceable? Is the position the same if the agreement is a foreign agreement? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? Yes, marital agreements are widely enforceable, as set forth in NY DRL §236B(3): “An agreement of the parties made before or during the marriage, shall be valid and enforceable in a matri- It is possible to enter into a domestic partnership; however, monial action if such agreement is in writing, subscribed by the domestic partnerships provide limited rights and can be termi- parties and acknowledged or proven in the manner required to nated by either partner at any time by filing a termination state- entitle a deed to be recorded.” Foreign agreements are largely ment in person at the city or county office in which the couple enforced, provided that the necessary formalities are met for registered their partnership. The termination statement simply the agreement to be valid and enforceable. (This may be either says that the partnership is terminated and the partners are compliance with the choice of law contained within the agree- no longer partners. If either domestic partner gets married ment or in the event that there is no effective choice of law provi- to another person, or to each other, the domestic partnership sion pertaining to validity, then the formalities required by the is automatically terminated. Domestic partnerships are not place of execution will generally control.) An agreement’s terms dissolved by divorce courts. must not violate New York’s public policy; there are limited

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4.4 Are same-sex couples permitted to marry or enter 5.3 For how long is a parent required to pay child other formal relationships in your jurisdiction? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? Yes, they are.

52 Child Maintenance Until age 21; however, the parties may agree to extend the age of emancipation beyond age 21.

5.1 What financial claims are available to parents on behalf of children within or outside of marriage? 5.4 Can capital or property orders be made to or for the benefit of a child?

The court may award basic child support to the party who is the primary residential custodian of the child(ren). The parties No, they cannot. may also be ordered to pay a pro rata share of additional (“add- on”) expenses articulated in NY DRL §240(1-b.)(a) et seq. and 5.5 Can a child or adult make a financial claim directly New York Family Court Act §413, identical statutes referred to against their parents? If so, what factors will the court as the “Child Support Standards Act” or “CSSA”. Add-ons may take into account? include childcare, unreimbursed health-related expenses, and at the court’s discretion, educational and enrichment costs. A A child may make a claim in limited circumstances. Such actions party might also be directed to maintain health insurance for the are rare. The court would likely examine whether the child was child(ren) and to provide life insurance to secure child support emancipated and the reasons for the child having left home. obligations. The court may also award counsel fees to the party seeking support on behalf of the child(ren). 62 Children – Parental Responsibility and Custody 5.2 How is child maintenance calculated and is it administered by the court or an agency? 6.1 Explain what rights of custody both parents have in your jurisdiction, whether (a) married, or (b) unmarried? Child support is calculated pursuant to a formula. If application of the formula would be unjust and inappropriate, child support Married and unmarried parents have the same rights to seek is further adjusted in consideration of factors set forth in the custody of and access to their child(ren). CSSA. These factors are commonly known as the “f” factors, in reference to their statutory location, and include: (1) the financial resources of the custodial and non-custodial 6.2 At what age are children considered adults by the court? parent, and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; Although children are not considered emancipated for child (3) the standard of living the child would have enjoyed had the support purposes until age 21, for custodial purposes, orders marriage or household not been dissolved; regarding custody or access will terminate at age 18. (4) the tax consequences to the parties; (5) the non-monetary contributions that the parents will make 6.3 What is the duration of children orders (up to the toward the care and well-being of the child; age of 16 or 18 or otherwise)? (6) the educational needs of either parent; (7) a determination that the gross income of one parent is Please see question 6.2 above. substantially less than the other parent’s gross income; (8) the needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who 6.4 What orders can the court make in relation to are not subject to the instant action and whose support has children? Does the court automatically make orders in relation to child arrangements in the event of divorce? not been deducted from income pursuant to DRL §240(1-b) (b)(5)(vii)(D), and the financial resources of any person obligated to support such children, provided, however, In most circumstances, with the exceptions described in ques- that this factor may apply only if the resources available tion 1.5 above, the divorce court must make a determination as to support such children are less than the resources avail- to custody and access. The court can make orders with regard to able to support the children who are subject to the instant how child-related decisions are made, and each parent’s access, action; including regular holiday, vacation and other access. The court (9) provided that the child is not on public assistance (i) may, in certain circumstances, establish protocols with regard to extraordinary expenses incurred by the non-custodial the parents’ conduct and communications. parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided 6.5 What factors does the court consider when making that the custodial parent’s expenses are substantially orders in relation to children? reduced as a result thereof; and (10) any other factors the court determines are relevant in each The court considers the best interests of the child(ren), giving case. regard to the circumstances of the case and the parties. NY DRL §240(1)(a). The court must take into consideration findings of domestic violence and other findings which place a child at substantial risk of harm (e.g. if the child is a victim of abuse).

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6.6 Without court orders, what can parents do 72 Children – International Aspects unilaterally? For example, can they take a child abroad?

7.1 Can the custodial parent move to another state/ Parents have broad discretion and freedom of movement in the country without the other parent’s consent? absence of court orders; however, a parent who is objecting to the removal of the child(ren) from the jurisdiction may contest the No; however, there is an exception for emergency circum- other parent’s removal by seeking court intervention. (Applicable stances pursuant to the Uniform Child Custody Jurisdiction and laws are the federal Parental Kidnapping Prevention Act and the Enforcement Act. Uniform Child Custody Jurisdiction and Enforcement Act.) For international removals, please see question 7.2 below. 7.2 Can the custodial parent move to another part of the state/country without the other parent’s consent? 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? Please see question 7.1 above. No, there is not. 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? The court has broad discretion to consider the individual facts and circumstances of each case. In Tropea v. Tropea, the New Yes, although for child support purposes, a court might consider York Court of Appeals articulated “[…] we hold that each relo- whether the parties established a particular standard of living cation request must be considered on its own merits with due for the child(ren) within a joint household. consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. […] in all 6.9 Is a welfare report prepared by an independent cases, the courts should be free to consider and give appropriate professional or is the decision taken by the Judge alone? weight to all of the factors that may be relevant to the determina- If so, does the child meet the Judge? tion. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality If custody and access issues are disputed, the court will often of the relationships between the child and the custodial and appoint a forensic evaluator (e.g. a mental health professional) noncustodial parents, the impact of the move on the quantity who prepares a report. The court maintains discretion to make and quality of the child’s future contact with the noncustodial a determination without such an appointment. The court is not parent, the degree to which the custodial parent’s and child’s life bound by any conclusions or recommendations in the report. may be enhanced economically, emotionally and educationally Courts may interview the child, if the circumstances warrant. by the move, and the feasibility of preserving the relationship This is referred to as a Lincoln hearing (or in camera interview), between the noncustodial parent and child through suitable visi- where only the court, the Attorney for the Child and the child tation arrangements. In the end, it is for the court to determine, are present. Either party’s attorney may ordinarily submit ques- based on all of the proof, whether it has been established by a tions for consideration by the court. The transcript of the Lincoln preponderance of the evidence that a proposed relocation would hearing is sealed from access by the parties and their attorneys. serve the child’s best interests.” 87 N.Y.2d 727 (1996).

6.10 Is there separate representation for children in your 7.4 If the court is making a decision on a child moving jurisdiction and, if so, who would represent them, e.g. a to a different part of the state/country, what factors are lawyer? taken into account?

Yes, the court may appoint an Attorney for the Child(ren). Please see question 7.3 above.

6.11 Do any other adults have a say in relation to the 7.5 In practice, how rare is it for the custodial parent to arrangements for the children? E.g. step-parents or be allowed to relocate internationally/interstate? grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to children? While not uncommon, these cases often present complexities and are highly fact-specific. The burden may be high. If standing exists, grandparents, siblings and half-siblings may maintain claims for visitation; relatives or third parties may also 7.6 How does your jurisdiction deal with abduction petition for custody on the basis of extraordinary circumstances. cases? For example, is your jurisdiction a party to the With regards to dispute resolution methods available, please Hague Convention? see question 2.12 (with the exception of neutral evaluation, which involves discrete financial issues). Several county courts Yes, the jurisdiction is a party to the Hague Convention. have established custody and access mediation programmes. Domestically, the Parental Kidnapping Prevention Act and Parents may also retain the services of a parent coordinator, the Uniform Child Custody Jurisdiction and Enforcement Act who will assist the parties in resolving child-related disputes; the would apply. implementation of a parent coordinator is sometimes incorporated into the parties’ final custody/access agreement.

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Gretchen Beall Schumann is a partner of the firm. An experienced attorney with regard to domestic and international matters, she is a frequent speaker at legal forums, and academic and corporate institutions in New York and abroad, with regard to a broad array of topics including interstate child support, family law and electronic privacy, equitable distribution and business valuation, marital agreements and the effects of cross-border planning in family law. Ms. Schumann was recently listed in Super Lawyers New York-Metro as one of the Top 50 Women Attorneys, as well as Super Lawyers New York-Metro Top 100 Attorneys and Chambers and Partners – Family/Matrimonial: High Net Worth – New York. Ms. Schumann is a past President of the New York Women’s Bar Association and currently President of the New York Women’s Bar Association Foundation. Ms. Schumann received a J.D. from Cornell Law School and an A.B. in English from Columbia College, Columbia University.

Cohen Rabin Stine Schumann LLP Tel: +1 212 512 0814 11 Times Square, 10th Floor Email: [email protected] New York, NY 10036 URL: www.crsslaw.com USA

The full-service family law firm of Cohen Rabin Stine Schumann, founded by esteemed family lawyers Harriet Newman Cohen, Bonnie E. Rabin, Martha Cohen Stine and Gretchen Beall Schumann, offers decades of experience. The Cohen Rabin Stine Schumann team of lawyers provides committed and personal legal service to clients (regardless of gender or orientation) in a wide range of domestic relations and family law matters. They represent their clients in contested trials and amicable settlements alike, creating indi- vidualised strategies and programmes to meet the needs of each of their clients. The firm’s lawyers have represented CEOs, celebrities, sports figures, national and local politicians, media stars, doctors, lawyers, other professionals, people entering marriages and people exiting marriages, and the children of divorce, among others, bringing the same level of focused effort to all of their clients. They have also been responsible for cutting edge, landmark decisions, which have been cited and for which they are recognised. www.crsslaw.com

Family Law 2021 172 Chapter 23 USA – Virginia USA – Virginia

Ilona E. Grenadier

Grenadier, Duffett, Levi, Rubin & Winkler, PC Carolyn Abbate

12 Divorce 1.4 What is the procedure and timescale for a divorce?

1.1 What are the grounds of jurisdiction for divorce Section 20-99 sets out the requirements for procedure. There proceedings? For example, residence, nationality, must be independent corroboration for the residency, domicile domicile, etc.? and grounds. This section sets out the notice requirements and the required process for service. Sections 20-96 and 20-97 of the Code of Virginia, 1950, as amended, contain Virginia law for jurisdiction of divorce 1.5 Can a divorce be finalised without resolving other proceedings. Our Circuit Courts have jurisdiction of suits for associated matters? For example, children and finances. annulling or affirming marriages and claims for separate maintenance and divorce. To file a claim for affirmation, annulment Generally, if there is no challenge, a divorce can be granted or divorce, one of the parties (Plaintiff or Defendant) must be alone. This may, or may not, affect such other matters, such as an actual bona fide resident and domiciliary of Virginia for at least finances, if in personam notice has been effectuated. six months prior to filing such action.

1.6 Are foreign divorces recognised in your 1.2 What are the grounds for a divorce? For example, jurisdiction? If so, what are the procedural requirements, is there a required period of separation, can the parties if any? have an uncontested divorce? Foreign divorces may be recognised in Virginia, but in keeping Grounds for divorce in Virginia are governed under Section with our laws, it is not by full faith and credit, but by the process 20-91. They are limited to: 1) adultery or for sodomy or buggery of comity. This means that, depending on the circumstances of committed outside of the marriage; 2) conviction of a felony the individual case, a Court may recognise the validity of such a (but sentenced to confinement for more than a year without decree. In general, practitioners find it is within the discretion cohabitation after knowledge of the confinement); 3) cruelty of our Courts as to whether a decree is recognised. Recognition (causing apprehension of bodily harm) or wilful desertion (after of validity will depend on matters such as valid notice, timely passage of a year); and 4) separation of the parties for a year notice, where and how notice was served, ability of one of the with the intention of one of the parties that this is permanent litigants to be engaged in the process, whether both parties (without intervening cohabitation of the parties). An exception entered into the process, and overall fairness/equity. is that either party may be granted a divorce after six months of intentional separation if the parties have no minor children and do have a separation agreement. 1.7 Does your jurisdiction allow separation or nullity proceedings?

1.3 In the case of an uncontested divorce, do the Suits to annul a marriage are permitted under several circum- parties need to attend court and is it possible to have a stances. Section 20-89.1 details how a marriage can be void “private” divorce, i.e. without any court involvement? (unable to continue) or voidable (can later be affirmed, but can be voided by the aggrieved party), with reference to other rele- Virginia has no “private divorce”. To be legal, a divorce must vant code sections in Title 20: 20-13, 20-38.1, 20-45.1 and 20-48. be by decree from our Circuit Court. In many of our counties and cities, there does not have to be a Court appearance if it is uncontested. Some of our Courts make use of deposi- 1.8 Can divorce proceedings be stayed if there are proceedings in another country? tion transcripts and a signed final decree (by the parties or their counsel) and some allow divorce by the signed decree accompanied by affidavits of separation in accordance with our statute. This would be entirely up to the discretion of the sitting Judge In these latter circumstances, no Court appearance is necessary. in our Circuit Court. There is no prohibition against such a stay, See Section 20-106. nor is there a requirement to do so.

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22 Finances on Divorce 2.7 Is the concept of matrimonial property recognised in your jurisdiction?

2.1 What financial orders can the court make on divorce? If the reference to “matrimonial property” is the same as our “marital property”, it is recognised in Virginia, and only marital Depending on the request of the party/parties, and during property can be distributed at divorce. The separate property a divorce action, the Court can and will deal with temporary of parties cannot be distributed under our equitable distribution support orders, Section 20-103, which gives Courts the power laws. For example, a party’s inherited property, not co-mingled to make orders pending the final divorce for spousal and child to the point where the separate origin cannot be traced, cannot support, for exclusive use of a residence, and for injunctions be distributed to the opposing spouse. Separate property can, and other relief concerning security of finances to preserve the however, be used to award lump-sum spousal support when the marital estate for final hearing (or disposition) and to continue circumstances would dictate the necessity. health and life insurance. At the final hearing or disposition, our Courts will deal with, if requested by the parties/party, the issues of child support (Sections 20-107.2, 20-108.1 and 2.8 Do the courts treat foreign nationals differently on 20-108.2), spousal support (alimony) (Section 20-107.1) and divorce? If so, what are the rules on applicable law? Can equitable distribution of marital property (Section 20-107.3). the court make orders applying foreign law rather than the law of the jurisdiction?

2.2 Do matrimonial regimes exist and do they need to be addressed by the court on divorce? Is there a default From experience, our Courts do not treat foreign nationals matrimonial regime? differently from our own citizens. There have been occasions where a Court has applied foreign law in making a decision on distributing property or where the parties have under- Virginia does not have any such category as a matrimonial regime. gone Court hearings and processes in a foreign jurisdiction. The facts and circumstances would dictate the Judge’s discretion in 2.3 How does the court decide what financial orders to making a decision. We have no formal statutes that would treat make? What factors are taken into account? foreign nationals differently, nor do we have statutes which would disallow use of applying foreign law depending solely on Referencing spousal support, Section 20-107.1 (E) 1 through 13 the facts of an individual case. sets out the factors our Courts use to determine the amount and the duration of such support. Currently, spousal support is not 2.9 How is the matrimonial home treated on divorce? deductible to the payor nor taxable to the payee. Distribution of marital property is governed by the factors in Section 20-107.3. Generally the factors in each statute allow the Court to assess The marital residence is treated no differently than other marital the status of the parties, physically and mentally, their current property. Unlike some of our fellow states, in Virginia there is employment status, education, ability to obtain employment, their no law allowing one party, after divorce, the use of a marital resi- age, their assets, their roles during the marriage, tax implications, dence, even if that party has minor children in his/her custody. and the fault for the dissolution of the marriage relationship. The transfer of ownership (if sale is not ordered) to one party or the other would depend on factors involving the ability to pay for the equity to and for the non-owning spouse and to remove 2.4 Is the position different between capital and the spouse from liability on the liens (mortgage notes and others maintenance orders? If so, how? such as tax liens, vendor liens, etc.).

Generally, Virginia Courts are required, per Section 20-107.1(E)8, 2.10 Is the concept of “trusts” recognised in your to have considered and decreed as to the distribution of prop- jurisdiction? If so, how? erty/assets, both separate and marital, prior to determination of maintenance/spousal support/alimony. The issues are generally heard during the same trial if the matters are contested and both Whether the concept of a trust is recognised is dependent on are included in a final order. whether it is relevant to distribution of marital funds/assets contained in the trust, and how the document reads. Regarding spousal or child support, income from such trusts is relevant, 2.5 If a couple agrees on financial matters, do they and under certain circumstances the corpus may be relevant as need to have a court order and attend court? well. However, there is no separate law dealing with trusts in our domestic relations statutes. Parties generally do not need to attend Court once they have “agreement”; however, to provide for Court enforcement of 2.11 Can financial claims be made following a foreign such agreement(s), the agreement(s) must be incorporated in an divorce in your jurisdiction? If so, what are the grounds? order of the Court.

If this question is whether our Courts will enforce financial 2.6 How long can spousal maintenance orders last and requirements/orders contained in a foreign divorce decree, our are such orders commonplace? Courts have the jurisdiction, assuming the jurisdictional and notice requirements are met to incorporate by order such claims/ Spousal maintenance orders can be temporary, for a period of order when requested, again given the discretion of comity in years or during the joint lives of the parties, generally subject to recognition and the individual facts of the case. modification under changed circumstances. Refer to Sections 20-109 and 20-110 of Title 20 of the Code of Virginia.

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2.12 What methods of dispute resolution are available remedies of specific performance of a contract (if the parties to resolve financial settlement on divorce? E.g. court, have one) or unjust enrichment, equitable lien, constructive or mediation, arbitration? resulting trust. The provisions of the law are not in the domestic relations purview, but available to all persons. Resolution of disputes regarding finances can be by negotiation between the parties and/or with counsel, mediation, arbitration 4.2 What financial orders can a cohabitant obtain? or Court adjudication. There are no laws recognising the status of cohabitants that 32 Marital Agreements would give them any rights non-cohabitants have.

3.1 Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is 4.3 Is there a formal partnership status for cohabitants a foreign agreement? (for example, civil partnerships, PACS)?

Pre-marital and marital agreements made during marriage are In Virginia, there is no such formal category that would yield the enforceable. Section 20-109.1 of the Code of Virginia recog- rights and obligations of a married couple. nises the incorporation, ratification and/or affirmation of such agreements. Section 20-146 through 20-155 sets out Virginia’s 4.4 Are same-sex couples permitted to marry or enter Premarital Agreement Act. This statutory section includes both other formal relationships in your jurisdiction? pre-marital and marital agreements. Section 20-155 specifically recognises marital agreements between persons. The difference Virginia has same-sex marriage and the rights are the same as if in application, however, is that marital agreements are immedi- the parties were opposite sexes. ately effective, otherwise they are entitled to the conditions in Sections 20-147 through 20-154. The question as to enforcement of foreign agreements has to 52 Child Maintenance be answered in a way most attorneys answer questions: it depends. Our state looks to its own contracts laws, but will obviously look 5.1 What financial claims are available to parents on to the individual facts in each case, to include but not be limited behalf of children within or outside of marriage? to: whether each were represented by counsel; the culture in that foreign jurisdiction as to the rights of wives versus husbands; and all Parents are entitled to seek child support whether the parents other relevant facts. The Court in both cases, pre- and post-mar- are married or not. riage, has discretion as to incorporation into a divorce decree. Failing the divorce Court to enforce, litigants are left up to a suit 5.2 How is child maintenance calculated and is it for specific performance, where similar factors guide a Court’s decision. administered by the court or an agency?

3.2 What are the procedural requirements for a marital Child support in Virginia is calculated using guidelines, as agreement to be enforceable on divorce? set out under Section 20-108.2 of the Code of Virginia. The parents’ incomes, healthcare premiums for the children, and The procedures are no different than for a Separation Agreement. work-related childcare costs, are inputted into either a regular After an agreement has been incorporated into a Court order, it or shared guidelines chart (depending on the custody schedule). becomes enforceable by the Court. A parent can petition the Court for a deviation from the guidelines, using the factors in Section 20-108.1. Child support may be paid directly from one parent to the other, or administered by 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance the Virginia Department of Social Services, Division of Child or compensation, or are they limited to the election Support Enforcement. of the matrimonial property regime? Can they deal with financial claims regarding children, e.g. child 5.3 For how long is a parent required to pay child maintenance)? maintenance or provide financial support for their children? For example, can a child seek maintenance Yes, marital agreements can cover all financial matters; however, during university? child custody and support remain under the jurisdiction of the Court and cannot be controlling in a marital or pre-mar- In Virginia, child support obligations generally cease at age 18 ital agreement. Child custody and support may be modified if (or if still in high school and a full-time student, at age 19). The the moving party can show there has been a material change of only exception for a longer support obligation is for a child who circumstances that warrants the modification. is incapacitated and unable to support themselves. There is no provision for university assistance. 42 Cohabitation and the Unmarried Family 5.4 Can capital or property orders be made to or for the 4.1 Do cohabitants, who do not have children, have benefit of a child? financial claims if the couple separate? What are the grounds to make a financial claim? Generally, child support is calculated based on the parents’ incomes as described above, but can be ordered from a parent Virginia does not have spousal support for unmarried persons. who has a substantial liquid asset if, for example, that parent is If there are property claims, one should investigate the equitable unemployed.

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5.5 Can a child or adult make a financial claim directly 6.6 Without court orders, what can parents do against their parents? If so, what factors will the court unilaterally? For example, can they take a child abroad? take into account? A parent can make day-to-day decisions on behalf of their child Children, if not in the custody of their parents, under general absent a Court order and can even make certain major deci- circumstances could obtain support through a guardian or other sions such as enrolling a child in school or moving to a different custodian. The Court would take the incomes of the parents, jurisdiction (within Virginia or the United States). However, and any substantial liquid assets of the parents, among other the other parent would have the right to file a petition with the factors, into consideration. Court to attempt to reverse or stop such a decision. Without a Court order, a parent may travel abroad with their child; 62 Children – Parental Responsibility and however, it is strongly recommended that the travelling parent obtain a “permission to travel” letter from the other parent. Custody

6.7 Is there a presumption of an equal division of time 6.1 Explain what rights of custody both parents have in between separating or divorcing parents? your jurisdiction, whether (a) married, or (b) unmarried? In many jurisdictions outside of Virginia, there is a presump- Rights of custody in Virginia do not depend on marriage, and tion of equal time; however, in Virginia, the presumption is only there is no presumption for primary custody in favour of either that children generally need both parents and a division of time parent. does not have to be equal. In more recent years, our Courts have been increasingly open to a more or less equal time, but it is by no means a presumption. 6.2 At what age are children considered adults by the court? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on Children are considered adults by the Court when they reach separation or divorce? the age of 18. Our Courts cannot make orders on separation or divorce when 6.3 What is the duration of children orders (up to the parents are unmarried. The Virginia Juvenile and Domestic age of 16 or 18 or otherwise)? Relations District Courts have jurisdiction over custody disputes between unmarried parents, or where the parents are married As noted above, the duration of a child support order would cease but no grounds for divorce exist. at a child’s turning 18, or 19 if a full-time high school student, and may continue if a child is permanently disabled, not self-sup- 6.9 Is a welfare report prepared by an independent porting and living in the home of the parent seeking to continue professional or is the decision taken by the Judge alone? child support. See Section 20-124.2 of the Code of Virginia. If so, does the child meet the Judge?

Welfare reports are not required; however, there are occasions 6.4 What orders can the court make in relation to children? Does the court automatically make orders in when a Court will, generally upon request of a litigant, appoint relation to child arrangements in the event of divorce? a custodial evaluator (a psychologist who will do testing of the parties and often the children and talk with medical authorities, family members), but the opinion of the evaluator is not set in A Court does not automatically make custodial orders in the stone where a Judge is concerned. The Judge alone makes the event of a divorce but will do so if requested by one or both decision. In some instances, the child will meet the Judge. parents. The Court has the power to award sole or joint custody of children, decision-making authority of either parent, and can 6.10 Is there separate representation for children in your make awards concerning schedules, even extending to attend- jurisdiction and, if so, who would represent them, e.g. a ance in certain schools, psychological and medical assistance. lawyer?

6.5 What factors does the court consider when making There is no “separate representation” for children. The Court orders in relation to children? might appoint a guardian ad litem who will investigate and report on the issues, but that professional, generally an attorney, The factors used by the Courts in Virginia are codified under does not represent the child as his/her attorney, but is an arm of Section 20-124.3, known colloquially as the “best interests of the Court to present information related to the best interest of the child”. They assess the physical and mental condition of the child factors. There is no prohibition against a child hiring the child and the parents, the relationship with each parent, his/her own lawyer, but it is not a general practice in Virginia. the role each parent has played or will play in the care and the upbringing of a child. They consider whether there has been 6.11 Do any other adults have a say in relation to the alienation by one parent and how each has or has not supported arrangements for the children? E.g. step-parents or the other in the relationship with the child. Preference of the grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to child is a factor, given the age and reasonable intelligence of the children? child. Many facts and situations are considered by a Court when granting custody in a litigated setting. Generally speaking, there are no other adults who have any say in arrangements for children. Parents can utilise old-fashioned

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negotiation or can engage in mediation. Arbitration is not gener- 7.6 How does your jurisdiction deal with abduction ally permitted for custodial decisions. In practice, however, liti- cases? For example, is your jurisdiction a party to the gants have used arbitration but understand it is non-binding and Hague Convention? not authorised by statutory law. Our country is a party to the Hague Convention and is cogni- 72 Children – International Aspects zant and aware of the provisions, assuming practitioners bring the rules and regulations to the attention of the Court. In prac- 7.1 Can the custodial parent move to another state/ tice, however, it does not bind the Court in its decision-making; country without the other parent’s consent? Section 20-146.23 of the Code of Virginia states that a “court of this Commonwealth may enforce an order for the return of a In most original custodial decisions, there is no prohibition child made under the Hague Convention on the Civil Aspects of against a parent with chief custody moving. However, Section International Child Abduction” (emphasis added). Note the word 20-124.5 of the Code of Virginia is required to be restated in may, as it differs from our own UCCJEA between states in the U.S. all custody orders, and it provides that the moving party has to provide 30 days’ advance notice prior to such move to the other 82 Overview party. It is believed that this would give the injured party time to petition the Court for a temporary injunction and to schedule 8.1 In your view, what are the significant developments a hearing. Further, if the move would reduce or eliminate the in family law in your jurisdiction in the last two years? access time to the parent left behind that is set out in a custodial order, the moving party could be held in contempt of Court as Several changes codified in 2019 appear to me to be signifi- denying the other’s access to the child/children. cant: Section 20-106 has been amended to allow the evidence for an uncontested divorce with settlement to be by affidavit; and 7.2 Can the custodial parent move to another part of Section 20-107.1 has been amended to make clear that the Court the state/country without the other parent’s consent? should consider tax consequences due to changes in federal law that make spousal support non-deductible by the payor and The response to this question is the same as question 7.1. non-taxable to the payee. Another change in Section 20-107.3, our equitable distribution law, is that the determination of military retired pay must be in accordance with the Federal Uniformed 7.3 If the court is making a decision on relocation of a Services Protection Act (which was recently amended). Recently, child abroad, what factors are taken into account? bills have been enacted to remove the words “husband” and “wife” from our statutes, making it clear that there should be no The Court uses the factors in Section 20-124.3 to determine difference between persons in a heterosexual and/or same-sex whether or not to allow a parent to relocate with a child, whether marriage. Another modification was that a Court may assign a it is abroad or not. In addition, the Court weighs how the move party the tax credit(s) resulting from an income tax dependency would impact the child’s relationship with the left-behind parent for federal and state income tax purposes. and the location and safety of the intended relocation. In practice, it is rare that a Court would allow an international relo- 8.2 What impact, if any, has the COVID-19 pandemic cation, especially if the relationship between the left-behind had on family law in your jurisdiction to date, and is parent and the child would be negatively impacted. likely to have over the next 12 months?

7.4 If the court is making a decision on a child moving This question is difficult to answer, as our Courts were closed to a different part of the state/country, what factors are for a significant amount of time, and when re-opened have been taken into account? sparse in setting cases, which up until very recently were all remotely held. Some counties/cities have opened Court recently, There is less reluctance to allow relocation within the U.S.; but with policies of wearing masks, etc., making it rather uncom- however, the same factors would be considered in making a deci- fortable trying a case. There has been no impact on the laws so sion as to relocation outside of the United States. It is decided far, but parents have been divided as to following existing orders in favour of “the best interest of the child”. This is a very broad and direct disobedience. concept and allows a Court wide latitude in making such decisions. In addition to the traditional factors discussed elsewhere 8.3 To what extent and how has the court process and in this chapter, other factors include, but are not limited to: the other dispute resolution methods for family law been place of relocation; distance and travel; possible residences; and adapted in your jurisdiction in light of the COVID-19 schools in the place of relocation. pandemic (e.g. virtual hearings, remote access, paperless processes)? Are any of these changes likely to remain after the COVID-19 crisis has passed? 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? The Court process in Virginia was greatly affected. Courts were closed for some significant time; now it is left to the discretion It is rare for a custodial parent to be allowed to relocate, either of the individual Chief Judges of the various judicial entities internationally or interstate. But as noted in Virginia, the whether to have in-person or remote hearings. It is hard to say concept of “best interest of the child”, habitual residence and whether such process will remain after COVID-19 – I person- how these factors affect the decision play a substantial role. ally think it is not likely.

Family Law 2021 Grenadier, Duffett, Levi, Rubin & Winkler, PC 177

th 8.4 What are some of the areas of family law which you was in a U.S. Court of Appeal’s 4 Circuit decision for purposes think should be looked into in your jurisdiction? of the Convention as “the place where a child has been physically for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspec- We need better clarification of Virginia’s recognition of the tive”. I do believe that the Court’s reliance on that concept Hague Convention, spelled out in some detail as opposed to our fell mainly on the facts of that specific case and should not be present statute. The Coe v. Coe case, 66 Va. App. 457 (2016), dealt applied generally. with the issue of “habitual residence”, which is not really defined in the Hague Convention. In Virginia it is now defined, as it

Family Law 2021 178 USA – Virginia

Ilona E. Grenadier is a principal in the family law firm of Grenadier, Duffett, Levi, Winkler and Rubin, PC. The firm has two offices, Alexandria and Reston, listed below. Ms. Grenadier has more than 50 years’ experience. She has been included in Best Lawyers in America (from its inception), in Super Lawyers, and has a top AV rating in Martindale-Hubbell. She is a fellow of the American Academy of Matrimonial Law and the International Academy of Family Lawyers, and a member of the American Bar Association, the Fairfax Bar Association, the Alexandria Bar Association, the Virginia Bar Association and the Virginia State Bar. With the firm’s team of lawyers, she represents clients in family law matters, including issues of support, custody, equitable distribution of property, and divorce.

Grenadier, Duffett, Levi, Rubin & Winkler, PC Tel: +1 703 683 9000 649 South Washington Street, Alexandria, VA 22314 Email: [email protected] 12359 Sunrise Valley Drive, Reston, VA 20191 URL: www.vafamilylaw.com USA

Carolyn Abbate practises exclusively in the area of family law and divorce matters in Northern Virginia. A native of Arlington, Virginia, Ms. Abbate graduated from George Mason University School of Law, cum laude, in 2009. Prior to joining the firm, Ms. Abbate clerked for the Judges of Virginia’s 17th Judicial Circuit (Arlington County) from 2009–2010. Ms. Abbate is a member of the Virginia State Bar, the Arlington Bar Association, the Fairfax Bar Association and the Alexandria Bar Association. Ms. Abbate was recognised as a top attorney by Arlington Magazine in 2019. Ms. Abbate represents clients in all types of family law matters, including but not limited to divorce, custody, equitable distribution of property and divorce.

Grenadier, Duffett, Levi, Rubin & Winkler, PC Tel: +1 703 683 9000 649 South Washington Street Email: [email protected] Alexandria VA 22314 URL: www.vafamilylaw.com USA

Grenadier, Duffett, Levi, Winkler & Rubin, P.C. is a full-service domestic relations firm, serving clients since 1974. Ilona Grenadier, our founding partner, has been in practice for over 50 years, and has seen the genesis and evolution of our modern domestic relations law in Virginia, the United States, and internationally as well. Our experienced attorneys specialise in all areas of family law, including divorce, child custody and visitation, support, division of property, pre- and post-marital agreements, protective orders, military divorce and other complex family law matters. We have nine attorneys who work collaboratively on matters to ensure that our clients have convenient and fast access to advice regarding their case. The firm is recognised by Best Lawyers as a Best Law Firm – Tier I in Family Law and listed as a “Preeminent Law Firm” with Martindale-Hubbell. In addition, the firm’s attorneys have been recognised by Best Lawyers, Super Lawyers, Washingtonian Magazine, Virginia Business Magazine, Northern Virginia Magazine and Arlington Magazine. www.vafamilylaw.com

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USA – Washington – Washington USA

The Law Office of Stacy D. Heard, PLLC Stacy D. Heard

12 Divorce Most county local rules provide case schedules to manage case deadlines. In many counties, parents are required to attend a parenting seminar. If the parties reach agreement on all issues, 1.1 What are the grounds of jurisdiction for divorce and 90 days have lapsed from the service of the Petition, the case proceedings? For example, residence, nationality, may be finalised at a hearing to offer proof that the marriage domicile, etc.? should be dissolved. If the parties do not reach agreement, the case proceeds to trial. Washington has subject matter jurisdiction over a divorce if The required 90-day waiting period commences when the either party resides in the state for 90 days preceding the filing service of Summons was made upon the respondent or the of the case or is a member of the armed forces stationed in first publication of the Summons was made. In re Marriage of Washington. The party filing must be in Washington at the time Bueckling, 179 Wn.2d 438, 313 P.3d 999 (2013), cert den., 135 S. Ct. the Petition for Divorce is filed (Revised Code of Washington 181, 190 L. Ed. 2d 129 (2014). (“RCW”) Chapter 26.09.030).

1.5 Can a divorce be finalised without resolving other 1.2 What are the grounds for a divorce? For example, associated matters? For example, children and finances. is there a required period of separation, can the parties have an uncontested divorce? A divorce cannot be finalised without resolving all associated matters. Pursuant to RCW 26.09.050, in entering a decree of The sole ground for divorce in Washington is “irreconcilable dissolution of marriage, the court shall determine the marital differences”. One party must allege that the marriage is irre- status of the parties, make provision for a parenting plan for any trievably broken. No further proof is necessary to achieve minor child of the marriage, make provision for the support of divorce. To enter a Divorce Decree, 90 days must have elapsed any child of the marriage entitled to support, consider or approve from the service of the Petition for Divorce. provision for the maintenance of either spouse, make provision for the disposition of property and liabilities of the parties, make 1.3 In the case of an uncontested divorce, do the provision for the allocation of the children as federal tax exemp- parties need to attend court and is it possible to have a tions, make provision for any necessary continuing restraining “private” divorce, i.e. without any court involvement? orders, make provision for the issuance within this action of the restraint provisions of a domestic violence protection order or At least one party must appear in court to offer proof to the an antiharassment protection order, and make provision for the court to finalise the divorce by entering the Findings of change of name of any party. Fact, Conclusions of Law and Divorce Decree. Some counties have differing court rules regarding entry of final docu- 1.6 Are foreign divorces recognised in your ments. For example, in a divorce that does not involve children, jurisdiction? If so, what are the procedural requirements, the Findings of Fact, Conclusions of Law, and Decree can be if any? offered electronically. To do so, the parties may request entry of the final documents without the necessity of a court appearance Yes, courts in Washington recognise foreign divorces under by executing a Declaration in Lieu of Formal Proof. the legal principal known as “comity”, unless the foreign order It is not possible to have a private divorce, but a court may conflicts with local law or violates the state’s public policy. seal a file or certain documents in a file to protect the parties’ Issues can and do arise when one party seeks to enforce a foreign privacy. Judges may also accept offers of proof in chambers, divorce decree in Washington with respect to property disposi- rather than a public courtroom, depending on the circum- tion, child support, or other related issues. A foreign divorce stances of the case. may be recognised in Washington by recording a foreign divorce decree with a county auditor or recorder’s office. Whether the 1.4 What is the procedure and timescale for a divorce? county auditor or recorder’s office will record a foreign divorce decree is determined by each individual county. If the documents are in a language other than English, they will need to be A divorce is commenced by filing a Summons and Petition for translated. The Washington State Department of Health does Divorce Decree, which must be served upon the other party. not register foreign divorces. The responding party has 20 days to respond to the Petition.

Family Law 2021 180 USA – Washington

Orders for child custody from a foreign court will be enforced 2.4 Is the position different between capital and under the Uniform Child Custody Jurisdiction and Enforcement maintenance orders? If so, how? Act (“UCCJEA”), RCW 26.27. However, if the child custody law of a foreign country violates fundamental principles of Yes, courts address property division and maintenance sepa- human rights, Washington courts are not required to apply the rately. Property division is based upon a fair and equitable distri- UCCJEA. bution of property. Maintenance is based upon the needs of one spouse and the ability of the other spouse to pay maintenance, in 1.7 Does your jurisdiction allow separation or nullity consideration of child support that may also be ordered. proceedings? 2.5 If a couple agrees on financial matters, do they Parties may petition for a legal separation or declaration need to have a court order and attend court? concerning the validity of a marriage pursuant to RCW 26.09.020. Most health insurance plans continue to cover a Yes, parties will need to enter agreed court orders with the court. separated spouse. Any assets and liabilities are separate once This requires an appearance unless they file a Declaration in the Decree of Legal Separation is entered. Lieu of Formal Proof. A marriage is voidable when either party to a marriage is incapable of consenting thereto, for want of legal age or a sufficient 2.6 How long can spousal maintenance orders last and understanding, or when the consent of either party is obtained are such orders commonplace? by force or fraud. A Decree of Invalidity is entered upon the court finding the marriage invalid. In general, spousal maintenance is ordered based upon the length of the marriage. The recommended duration is one year 1.8 Can divorce proceedings be stayed if there are of maintenance for every four years of marriage. Spousal main- proceedings in another country? tenance is ordered in cases where one party has the ability to pay and another party has a need. Yes. In particular, proceedings involving child custody will be stayed until the courts in both counties can determine jurisdiction. 2.7 Is the concept of matrimonial property recognised in your jurisdiction? 22 Finances on Divorce Yes, Washington is a community property state.

2.1 What financial orders can the court make on divorce? 2.8 Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than The court orders a disposition of property and liabilities, either the law of the jurisdiction? community or separate, as appears just and equitable. The court can also enter orders for spousal maintenance and No, foreign nationals are not treated differently. Courts do not child support on a temporary and permanent basis. apply foreign law in the state of Washington.

2.2 Do matrimonial regimes exist and do they need to 2.9 How is the matrimonial home treated on divorce? be addressed by the court on divorce? Is there a default matrimonial regime? The matrimonial home is generally awarded to the primary parent of the children. Remaining in the home with the chil- Washington is a community property state. The court applies dren is in the best interests of the children. If the parties do statutes to determine the fair and equitable distribution of prop- not have children, they negotiate who keeps the house or if they erty and liabilities as well as the definitions of separate and want to sell it and divide the proceeds. If one party is awarded community property. the house, that party refinances the mortgage on the home to remove the other spouse from the liability and that spouse’s name is removed from the deed to the property. 2.3 How does the court decide what financial orders to make? What factors are taken into account? 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? In dividing assets and liabilities, the court considers the following factors: (1) the nature and extent of the community Yes. A court can consider trust distributions to a party as property; (2) the nature and extent of the separate property; (3) income to that party. If the community has contributed to the the duration of the marriage or domestic partnership; and (4) the trust, the trust may be deemed community property and result economic circumstances of each spouse at the time the division in the final property distribution. Additionally, trusts are used of property is to become effective. for estate planning and asset protection. In determining spousal maintenance, the court considers the length of the marriage, the ability to pay of one spouse and the need for maintenance of the other spouse. 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? Child support is determined by statutory factors including the parents’ incomes, ages of the children, and any credits for expenses that one parent pays, such as health insurance. If a foreign divorce is registered in Washington, any outstanding judgments may be enforced by the court depending on the terms of the judgment, agreements, or spousal maintenance.

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In general, property distributions are not modifiable except in 4.3 Is there a formal partnership status for cohabitants circumstances such as fraud. Child support is subject to modi- (for example, civil partnerships, PACS)? fication after the children have lived in Washington for at least six months. Washington recognises state registered domestic partners. This requires that parties inhabit the same residence. Committed 2.12 What methods of dispute resolution are available Intimate Relationships are also recognised under common law. to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? Mediation, settlement conferences, and arbitration are all available to resolve financial settlements. Many counties require the parties to engage in dispute resolution prior to trial. Yes, Washington recognises same-sex marriage by statute as well as Committed Intimate Relationships under common law. 32 Marital Agreements 52 Child Maintenance 3.1 Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is 5.1 What financial claims are available to parents on a foreign agreement? behalf of children within or outside of marriage?

Pre- and Post-Nuptial Agreements are enforceable. They must The court may award child support based upon the statutory comply with common law. Bases that may render agreements factors outlined in RCW 26.19. In calculating child support, unenforceable include if the agreement was procured by fraud, a court may consider additional factors such as extraordinary duress, coercion, or contains unconscionable provisions. income of parents, daycare expenses, private school expenses, and medical expenses. 3.2 What are the procedural requirements for a marital agreement to be enforceable on divorce? 5.2 How is child maintenance calculated and is it administered by the court or an agency? Marital Agreements must comply with contract law and Washington common law. They must be signed by the parties Child support is calculated pursuant to RCW 26.19. It can be and acknowledged by a notary. They must include full disclo- administered by the court or by the Washington State Support sure of the parties’ respective financial holdings and be entered Registry. into freely and voluntarily.

5.3 For how long is a parent required to pay child 3.3 Can marital agreements cover a spouse’s financial maintenance or provide financial support for their claims on divorce, e.g. for maintenance or compensation, children? For example, can a child seek maintenance or are they limited to the election of the matrimonial during university? property regime? Can they deal with financial claims regarding children, e.g. child maintenance)? Post-secondary education support is advisory, not mandatory. A parent must apply for post-secondary support prior to the child Parties can agree to limit or exclude financial support for a turning 18 or graduating high school, whichever is later. spouse in Marital Agreements. Marital Agreements do not include financial claims regarding children, such as child support. Marital Agreements are limited to disposition of prop- 5.4 Can capital or property orders be made to or for the erty and liabilities, as well as spousal maintenance. benefit of a child?

42 Cohabitation and the Unmarried Family Child support cannot be satisfied with capital or property. Child support is intended to be a monthly payment to support the 4.1 Do cohabitants, who do not have children, have child’s basic needs and to provide additional support commen- financial claims if the couple separate? What are the surate with the parents’ income, resources, and standard of grounds to make a financial claim? living. The child support obligation should be apportioned between the parents. Yes, domestic partners and parties in Committed Intimate Relationships (“CIR”) have the same financial claims as a married 5.5 Can a child or adult make a financial claim directly couple, with the exception of spousal maintenance. Spousal against their parents? If so, what factors will the court maintenance is not awarded in these cases. The grounds for take into account? making financial claims are the same as in a divorce – property and debt accumulated during the relationship must be divided. No. Child support is an obligation by parents to provide for the child’s basic needs. There is a statute of limitation of 10 years 4.2 What financial orders can a cohabitant obtain? for claiming past due child support. Any amounts received go to the parent to whom the child support was owed. A decree or Property Settlement Agreement dividing the property and liabilities. If the cohabitants have children together, child support will be ordered.

Family Law 2021 182 USA – Washington

62 Children – Parental Responsibility and (4) DISPUTE RESOLUTION. (5) ALLOCATION OF DECISION-MAKING AUTH- Custody ORITY. (6) RESIDENTIAL PROVISIONS FOR THE CHILD. 6.1 Explain what rights of custody both parents have in The plan shall include a residential schedule which desig- your jurisdiction, whether (a) married, or (b) unmarried? nates in which parent’s home each minor child shall reside on given days of the year, including provision for holidays, Both parents have rights to a Parenting Plan or Residential birthdays of family members, vacations, and other special Schedule for their children regardless of whether they were occasions, consistent with the criteria in RCW 26.09.187 married or not. The state of Washington does not use the term and 26.09.191. “custody”. (7) PARENTS’ OBLIGATION UNAFFECTED. If a parent fails to comply with a provision of a parenting plan or a 6.2 At what age are children considered adults by the child support order, the other parent’s obligations under court? the parenting plan or the child support order are not affected. Failure to comply with a provision in a parenting The court considers children adults at the age of 18. plan or a child support order may result in a finding of contempt of court, under RCW 26.09.160. 6.3 What is the duration of children orders (up to the (8) PROVISIONS TO BE SET FORTH IN PERMANENT age of 16 or 18 or otherwise)? PARENTING PLAN. The permanent parenting plan shall set forth the provisions of subsections (4)(a) through Children orders last until the age of 18. (c), (5)(b) and (c), and (7) of this section.”

6.4 What orders can the court make in relation to 6.6 Without court orders, what can parents do children? Does the court automatically make orders in unilaterally? For example, can they take a child abroad? relation to child arrangements in the event of divorce? Without court orders, parents can take any unilateral action. The court enters a Parenting Plan or Residential Schedule that However, any unilateral action taken that is not in the best inter- provides for the time the children will spend with each parent. ests of the child will be addressed by the court and the court, in its The court does not automatically make these orders in the event of divorce. Parties either agree to these orders in alternative discretion, can consider such action in ordering a Parenting Plan. dispute resolution or the court will enter an order after considering evidence at trial. 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 6.5 What factors does the court consider when making orders in relation to children? There is no presumption of an equal division of residential time.

RCW 26.09.184 requires the court to consider the following: 6.8 Are unmarried parents treated in the same way “(1) OBJECTIVES. The objectives of the permanent as married parents when the court makes orders on parenting plan are to: separation or divorce? (a) Provide for the child’s physical care; (b) Maintain the child’s emotional stability; (c) Provide for the child’s changing needs as the child Yes, unmarried parents are treated in the same way as married grows and matures, in a way that minimizes the need parents. for future modifications to the permanent parenting plan; 6.9 Is a welfare report prepared by an independent (d) Set forth the authority and responsibilities of each professional or is the decision taken by the Judge alone? parent with respect to the child, consistent with the If so, does the child meet the Judge? criteria in RCW 26.09.187 and 26.09.191; (e) Minimize the child’s exposure to harmful parental conflict; Yes, in some cases a guardian ad litem (“GAL”) or Parenting (f) Encourage the parents, where appropriate under Evaluator is appointed to conduct a Parenting Evaluation. A RCW 26.09.187 and 26.09.191, to meet their respon- judge has discretion in ordering Parenting Plans and may sibilities to their minor children through agreements consider any report or recommendations. The child does not in the permanent parenting plan, rather than by meet the judge. The child’s voice is provided through the GAL relying on judicial intervention; and or Parenting Evaluator. (g) To otherwise protect the best interests of the child consistent with RCW 26.09.002. 6.10 Is there separate representation for children in your (2) CONTENTS OF THE PERMANENT PARENTING jurisdiction and, if so, who would represent them, e.g. a PLAN. The permanent parenting plan shall contain lawyer? provisions for resolution of future disputes between the parents, allocation of decision-making authority, and residential provisions for the child. GALs represent the interests of the children and GALs can be (3) CONSIDERATION IN ESTABLISHING THE lawyers. Attorneys can directly represent children pursuant to PERMANENT PARENTING PLAN. In establishing statute; however, it is rarely done. a permanent parenting plan, the court may consider the cultural heritage and religious beliefs of a child.

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6.11 Do any other adults have a say in relation to the (10) The financial impact and logistics of the relocation or its arrangements for the children? E.g. step-parents or prevention; and grandparents or siblings. What methods of dispute (11) For a temporary order, the amount of time before a final resolution are available to resolve disputes relating to decision can be made at trial.” children?

7.4 If the court is making a decision on a child moving Step-parents have input regarding Parenting Plans; however, to a different part of the state/country, what factors are grandparents do not. Mediation, settlement conferences, taken into account? and arbitration are methods of dispute resolution regarding Parenting Plans. Most Parenting Plans require dispute resolution before court action. The same factors identified in the answer to question 7.3 apply.

72 Children – International Aspects 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? It is not rare. There is a rebuttal presumption that the intended relocation of the child will be permitted. Yes; however, a court must order that the parent may relocate with the children. The Relocation Act is codified in RCW 7.6 How does your jurisdiction deal with abduction 26.09.405 and governs these cases. cases? For example, is your jurisdiction a party to the Hague Convention? 7.2 Can the custodial parent move to another part of the state/country without the other parent’s consent? Yes, the US is a party to the Hague Convention. For domestic abduction cases, the UCCJEA and the Parental Kidnapping No. The Relocation Act applies. Prevention Act apply.

7.3 If the court is making a decision on relocation of a 82 Overview child abroad, what factors are taken into account? 8.1 In your view, what are the significant developments RCW 26.09.520 provides: in family law in your jurisdiction in the last two years? “The person proposing to relocate with the child shall provide his or her reasons for the intended relocation. There is a In 2020, Washington adopted Nonparental Actions for Child rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended Custody under RCW 26.10. Starting in 2021, a nonparent can relocation of the child may rebut the presumption by demon- ask for legal guardianship instead of a nonparent custody order. strating that the detrimental effect of the relocation outweighs Nonparent custody orders already in effect will still be valid in the benefit of the change to the child and the relocating person, 2021. based upon the following factors. The factors listed in this section are not weighted. No inference is to be drawn from the 8.2 What impact, if any, has the COVID-19 pandemic order in which the following factors are listed: had on family law in your jurisdiction to date, and is (1) The relative strength, nature, quality, extent of involvement, likely to have over the next 12 months? and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life; Meetings, hearings, dispute resolution and trials are being held (2) Prior agreements of the parties; virtually. The court will hear in-person motions for emergency (3) Whether disrupting the contact between the child and the matters such as domestic violence cases. Face coverings or person seeking relocation would be more detrimental to masks are required. the child than disrupting contact between the child and the person objecting to the relocation; (4) Whether either parent or a person entitled to residential 8.3 To what extent and how has the court process and time with the child is subject to limitations under RCW other dispute resolution methods for family law been 26.09.191; adapted in your jurisdiction in light of the COVID-19 (5) The reasons of each person for seeking or opposing the pandemic (e.g. virtual hearings, remote access, relocation and the good faith of each of the parties in paperless processes)? Are any of these changes likely to requesting or opposing the relocation; remain after the COVID-19 crisis has passed? (6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the Hearings are held virtually with the exception of emergency child’s physical, educational, and emotional development, domestic violence orders. All filings are electronic, including taking into consideration any special needs of the child; judges’ working papers. Some counties are considering long- (7) The quality of life, resources, and opportunities available term changes to procedures. to the child and to the relocating party in the current and proposed geographic locations; (8) The availability of alternative arrangements to foster and 8.4 What are some of the areas of family law which you think should be looked into in your jurisdiction? continue the child’s relationship with and access to the other parent; (9) The alternatives to relocation and whether it is feasible and Standards for GALs in performing Parenting Evaluations need desirable for the other party to relocate also; to be instituted.

Family Law 2021 184 USA – Washington

Stacy D. Heard is a family law sole-practitioner in Seattle, Washington, where she has served clients for more than 20 years. Her family law practice includes cases involving high-conflict parenting/custody issues, international custody disputes, relocation, complex financial issues, and post-decree matters. Stacy is trained in cross-border mediation, arbitration, collaborative law, and as a guardian ad litem. She is a fellow of the International Academy of Family Lawyers (IAFL), the Association of Family and Conciliatory Courts (AFCC), and the American Bar Association Family Law Section, for which she is the International Law Committee Chair and serves on the governing council. Stacy frequently teaches CLE (Continuing Legal Education) courses on family law to other professionals throughout the US and internationally.

The Law Office of Stacy D. Heard, PLLC Tel: +1 206 447 8200 1001 Fourth Avenue, Suite 4400 Email: [email protected] Seattle, WA 98154 URL: www.heard-law.com USA

The Law Office of Stacy D. Heard, PLLC provides a full range of family law services, including divorce, legal separation, complex financial issues, parenting plans and custody disputes, international child custody disputes, relocation, paternity, modifications of parenting plans and child support orders, as well as other post-dissolution matters. www.heard-law.com

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