w ICLG The International Comparative Legal Guide to: Family 2019 2nd Edition

A practical cross-border insight into

Published by Global Legal Group, with contributions from:

Arbáizar Abogados Haraguchi International Law Office Attorney Zharov’s Team International Academy of Family Lawyers Boulby Weinberg LLP Kingsley Napley LLP Chia Wong LLP Lebenberg Advokatbyrå AB Cohen Rabin Stine Schumann LLP Lloyd Platt & Co Corbett Le Quesne Pearson Emerson Meyer Family Lawyers Delerue Sharma Turcan Connell Diane Sussman TWS Legal Consultants Etude de Me Anne Reiser Villard Cornec & Partners FSD Law Group Inc. Withers Fullenweider Wilhite The International Comparative Legal Guide to: Family Law 2019

General Chapters:

1 International Marital Agreements – the Approach by the English Court on – Charlotte Bradley, Kingsley Napley LLP 1

2 The Practice of International Family Law – Rachael Kelsey, SKO Family Law Specialists & Mia Reich Sjögren, Advokaterna Sverker och Mia Reich Sjögren AB, on behalf of International Contributing Editor Academy of Family Lawyers 7 Charlotte Bradley, Kingsley Napley LLP 3 Brexit and Family Law – Charlotte Bradley & Stacey Nevin on behalf of Resolution, Sales Director Kingsley Napley LLP 13 Florjan Osmani Account Director 4 Silent Heartache for Grandparents – Vanessa Lloyd Platt, Lloyd Platt & Co. 18 Oliver Smith Sales Support Manager Country Question and Answer Chapters: Toni Hayward

Sub Editor 5 Australia Pearson Emerson Meyer Family Lawyers: Max Meyer & Louise Carter 22 Jenna Feasey Senior Editors Suzie Levy 6 Canada – Ontario Boulby Weinberg LLP: Sarah Boulby & Oren Weinberg 31 Caroline Collingwood CEO Dror Levy 7 Canada – Quebec FSD Law Group Inc.: Pierre-Hugues Fortin & Marie-Hélène Saad 37 Group Consulting Editor Alan Falach 8 England & Wales Kingsley Napley LLP: Charlotte Bradley 44 Publisher Rory Smith 9 France Diane Sussman: Diane Sussman 52 Published by Global Legal Group Ltd. 59 Tanner Street 10 Germany Delerue Sharma: Stefanie Sharma 60 London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: [email protected] 11 Withers: Sharon Ser & Philippa Hewitt 65 URL: www.glgroup.co.uk

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18 Sweden Lebenberg Advokatbyrå AB: Torgny Lebenberg & Kristin Håkansson 119

19 Etude de Me Anne Reiser: Anne Reiser 125

20 United Arab Emirates TWS Legal Consultants: Nita Maru 131

21 USA – New York Cohen Rabin Stine Schumann LLP: Gretchen Beall Schumann, Esq. 135

22 USA – Texas Fullenweider Wilhite: Lauren E. Waddell 141

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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.

WWW.ICLG.CO.UK EDITORIAL

Welcome to the second edition of The International Comparative Legal Guide to: Family Law. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the and regulations of family law work. It is divided into two main sections: Four general chapters. These cover international marital agreements, the practice of international family law, the impact of Brexit on family law, and grandparents’ rights to contact. Country question and answer chapters. These provide a broad overview of common issues in family law in 18 . All chapters are written by leading family lawyers and industry specialists and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editor, Charlotte Bradley of Kingsley Napley LLP, for her invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.com.

Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected]

PREFACE

I am honoured to be the contributing editor to the 2019, second edition of The International Comparative Legal Guide to: Family Law, and thank all the contributors for setting out so succinctly family law in their respective jurisdictions. Each chapter provides an essential summary of the main areas of family law as well as being a stark reminder of the need for individuals to take advice in any country where they have a substantial 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, has done a huge amount to raise knowledge and assist international best practice. I thank the Academy for their chapter which provides essential reading. I also thank Resolution for their involvement and their support for this edition’s chapter on Brexit and family law. An organisation of family lawyers, Resolution are committed to encouraging a constructive, non-confrontational approach and solution to family law matters. 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 Head of the Family team Kingsley Napley LLP Chapter 1

International Marital Agreements – the Approach by the English Court on Divorce

Kingsley Napley LLP Charlotte Bradley

One of the biggest recent developments in family law in England namely the needs of any children and the parties, and the concept and Wales1 has been the rising demand for marital agreements. of sharing equally the assets built up during the marriage. The extent to which the court allows the exclusion of these principles when considering the validity of a marital agreement will vary in Introduction each case. However, a consideration of the couple’s needs and, in particular, the needs of any children will always be at the forefront With increased globalisation and continued migration to the UK, of a judge’s mind when the agreement is considered, as will the st and following Supreme Court decisions in the early 21 century intentions behind the agreement (particularly if it is a non-English which have introduced the principle of equality into financial agreement which does not seek to address all the financial provisions divorce cases, the request for pre-nuptial agreements has risen to be made in the event of a future divorce). sharply. The greatest demand for pre- and post-nuptial agreements appears to still be from those individuals whereby one or both of the couple have substantial international connections. But what about Approach of the Court to Foreign Marital those couples who already have a marital agreement, prepared in Agreements Prior to Miller and McFarlane another , but who are divorcing in England? How will an English judge treat the agreement? Until the House of Lords3 cases of White in 2001 and Miller and Radmacher v Granatino [2010] UKSC 42 is the first Supreme Court McFarlane in 2006, there was a dearth of case law dealing with case specifically dealing with the enforceability of agreements. The marital agreements and those limited reported cases tended to be case has cemented the English court’s already developing approach forum conveniens (stay of proceedings) cases, where one party to uphold domestic and foreign agreements, and has led many more relied on the existence of the foreign agreement to encourage the clients to seek agreements as well as encouraging the demand for English court to decline the English divorce petition in favour of the statutory change (e.g. see the Law Commission’s 2014 report on foreign divorce proceedings, rather than cases where the court was Matrimonial Property Needs and Agreements at: https://www.gov. being asked to uphold the terms of the agreement. uk/government/publications/matrimonial-property-needs-and- So, in S v S (Divorce: Staying proceedings) [1997] 2 FLR 100, a case agreements). Since Radmacher, English case law in relation to the involving a New York pre-marital agreement, Wilson J concluded enforcement of foreign marriage agreements has developed rapidly that the agreement, with its substantial financial provisions and as set out below. provision in relation to forum, was significant. Both parties had For those readers who do not practise English family law, it is obtained independent advice and the terms had been negotiated worth noting that none of the factors set out in Section 25 of the between their respective New York attorneys. Wilson J ordered the Matrimonial Causes Act 1973, to which the court must have regard stay of the English proceedings. when considering the appropriate financial orders,2 include the In C v C (Divorce: Stay of English Proceedings) [2001] 1 FLR 624, a requirement to consider any marital agreement. The agreement will case involving French nationals (shortly before the implementation be considered as part of the circumstances of the case (s 25 (1)) or as of the Brussels II regulation which replaced forum conveniens with conduct (s 25 (2) (g)) and the extent to which any agreement will be lis pendens for EU nationals), the judge placed great weight on given weight will depend on the facts of the case. The jurisdiction the ‘separation de biens’ pre-marriage contract entered into by the of the English court to order financial provision on divorce cannot French couple, when staying the wife’s English divorce petition in be ousted by the parties’ agreement. And, as a country which favour of the French divorce proceedings. practises family law on the basis of forum without applying foreign Contrast the court’s approach in these cases with the judgment law (unlike many of its European neighbours), once jurisdiction has of F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, been secured, the court will apply (although, as can be where jurisdiction in the English court was secured and it was being seen from the cases below, in the exercise of its discretion, the court asked to consider the weight of a German pre-nuptial contract in may take into account the parties’ connections with another country determining the wife’s financial claims. when considering the appropriate financial orders, particularly if there is a foreign marital agreement). Thorpe J refused to allow any expert evidence from Germany declaring ‘in this jurisdiction they [pre-nuptial agreements] must When considering the effects of the pre- or post-marital agreement, be of very limited significance. The rights and responsibilities executed in England and Wales or elsewhere in the world, the court of those whose financial affairs are regulated by statute cannot will not ignore the established principles set out in English case law, be much influenced by contractual terms which were devised for

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the control and limitation of standards that are intended to be of The facts of Radmacher are unusual and worth setting out. The universal application throughout our society’ [page 66]. Compare case involved a wealthy German wife with a French husband with this approach to that of the Supreme Court in Radmacher 15 years two children born in England. At the wife’s request, the parties later. had entered into a pre-marital contract in Germany, providing for a separation of assets and that no party would make claims against the other in the event of a divorce. The wife’s assets were all inherited Miller and McFarlane and the Approach to and at the first hearing her wealth was accepted to be approximately Marital Agreements Prior to Radmacher £55 million with a substantial interest in family companies producing a significant income. At the first instance, Baron J The House of Lords’ decisions in Miller v Miller and McFarlane awarded the husband £5.6 million together with child maintenance v McFarlane [2006] UKHL 24 opened the door to marital plus the right to reside in a German property, and in doing so agreements becoming more enforceable. Neither of the cases held that the pre-nuptial agreement had the effect of limiting the involved the existence of a pre-marital agreement; however, the husband’s award. The wife appealed to the Court of Appeal, where House of Lords established the principles of equality and sharing the sum was reduced to a payment to cover the husband’s debts, a and that matrimonial property and non-matrimonial property (e.g. housing fund of £2.5 million to be retained by the husband during pre-marital property and inherited property) should be treated the children’s minority only and capitalised maintenance to cover differently (something which many seeking a pre-nuptial agreement the husband’s needs until the younger child’s 22nd birthday. The wish to achieve). So, what Miller and McFarlane established was Supreme Court upheld the decision of the Court of Appeal, agreeing a loose and discretionary ‘community of acquests’ to assets built that the pre-nuptial agreement should be given considerable weight up during the marriage (with a starting point of a 50/50 division of and the husband’s claims should be limited. these assets) and with the court still bringing in non-matrimonial The facts surrounding the pre-marital agreement were not typical assets if they are required to meet the parties’ and (particularly) any insofar as: children’s needs. ■ the case involved an Anglo Saxon ‘exclude everything’ pre- And, while there is no specific reference to pre-marital agreements nuptial agreement but from a continental country where it in Miller and McFarlane, there was indirect support, with Nicholls was prepared by a notary; LJ stating ‘to this non-exhaustive list should be added, as a relevant ■ in the agreement the husband agreed to his maintenance matter, the way the parties organised their financial affairs’ [para claims being terminated on divorce; 25] and Baroness Hale held that ‘the nature and the source of the ■ the husband had received full advice from the notary, which property and the way the couple have run their lives may be taken included that he should take independent legal advice, into account in deciding how it should be shared’ [para 153]. And, including from English lawyers (but he declined); with reference in the judgment to personal autonomy, which should ■ the agreement was signed four months before the marriage not be interfered with by the courts, the door was firmly left open when the parties were already living in London; and to future developments in the enforceability of marital agreements. ■ the husband (rather than the wife) was the financially weaker So, in Ella [2007] EWCA Civ 99, the Court of Appeal confirmed spouse (with a wife worth multi-millions) but he was found the judge’s decision to stay the English proceedings, in favour of to have known exactly what he was signing. the husband’s Israeli proceedings, with the pre-nuptial agreement Radmacher has undoubtedly changed the advice English family (which had provisions providing that Israeli law should apply) being lawyers give in relation to the enforceability of agreements. While the main reason for the stay. previously it was unclear whether an agreement was likely to be Two cases in the Court of Appeal, Crossley [2007] EWCA Civ enforced, the case has firmly put the burden of challenging the 491 and Charman [2007] EWCA Civ 503, both referred to the agreement on the party who wishes to challenge the terms. In the recognition of marital contracts in other jurisdictions, particularly frequently quoted words of the main judgment, the court should their civil European neighbours in the call for reform to enforce give effect to a nuptial agreement that is ‘freely entered into by marital contracts. In his judgment in Charman, Sir Mark Potter each party with a full appreciation of its implications unless, in the commented at para 124: ‘The difficulty of harmonising our law circumstances prevailing, it would not be fair to hold the parties to concerning the property consequences of marriage and divorce their agreement’ [para 75]. and the law of the Civilian member states is exacerbated by the fact While the Supreme Court has made it clear that whether it is fair to that our law has so far given little to pre-nuptial contracts. hold the parties to their agreement ‘will necessarily depend on the If, unlike the rest of Europe, the property consequences of divorce facts of the case’ [para 76], in the case of Radmacher, they were are to be regulated by the principles of needs, compensation and undoubtedly influenced by the parties’ intentions at the time they sharing, should not the parties to the marriage, or the projected signed the agreement. At para 68, Lord Phillips said: ‘… if an ante- marriage, have at least the opportunity to order their own affairs nuptial agreement, or indeed a post-nuptial agreement, is to carry otherwise by a nuptial contract?’ full weight, both the husband and wife must enter into it of their Now, over 11 years later, as the UK approaches Brexit, further own free will, without undue influence or pressure, and informed of harmonisation of family law in Europe is unlikely; however, with its implications…’ and at para 69: ‘What is important is that each the movement of people unlikely to be reversed and London still party should have all the information that is material to his or her seen as the ‘divorce capital of the world’, the demand for agreements decision, and that each party should intend that the agreement is here to stay. should govern the financial consequences of the marriage coming to an end.’ Radmacher and Granatino [2010] UKSC 42 So, it can be seen that a property regime marriage contract, typical in the civil jurisdictions of continental Europe, which may have been executed with the intention to protect the other spouse from Radmacher is the only occasion where the Supreme Court has third party creditors during the marriage, rather than necessarily specifically considered whether to hold the parties to the terms of a themselves upon divorce, does not conform easily with the type pre-marital agreement. of agreement that the Supreme Court intended should be upheld.

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However, an Anglo-Saxon type agreement, the type entered in the In subsequent cases, a theme that has developed is the extent English speaking jurisdictions, such as England or to which a ‘full appreciation of the implications’ involves legal the US (where most states have legislation in relation to marital advice, including from other countries, in particular discretionary agreements), which specifically provides to set out the financial jurisdictions such as the UK. This was addressed in detail in B v position in the event of a separation, is much more likely to be S (Financial Remedy: Marriage Property Regime) [2012] EWHC enforced, particularly if the needs of the parties and any children 265 (Fam), where Mostyn J was dealing with a Catalan separation have been met. of property regime plus an express agreement during the 15-year marriage when a property had been purchased. The wife sought 50% of the £6 million assets whereas the husband relied on the tacit Case Law Since Radmacher – the and then express agreement of the separate property regime and Importance of the Parties’ Intentions resisted a lump sum payment being made. In ordering a lump sum to the wife of £3 million, Mostyn J did not Since the Supreme Court decision of Radmacher, there has been a place weight on the agreement, holding that there is a big difference flurry of English divorce (financial remedy) cases where one party between a pre-nuptial agreement which specifically contemplates seeks to rely upon the terms of a foreign marriage contract to limit divorce and seeks to restrict or influence the exercise of discretion the other spouse’s claims. These typically are not comprehensive of the court, and an agreement regarding the marital property regime pre-nuptial agreements to protect a party’s assets and/or income in civil jurisdictions. Neither party had entered into the agreement in the event of a divorce, but typically ‘off the shelf’ continental with ‘a full appreciation of its implications’ and no weight was marriage contracts where spouses have elected a property regime to therefore attached to the agreement in an assessment of what was a regulate the finances during the marriage. fair award to the wife. While Mostyn J held that the requirement of It is vital to appreciate that there is a fundamental difference ‘a full appreciation of implications’ did not carry a requirement to between these two types of agreements. They are completely have specific advice on the effects of English law and the agreement, different animals. The aim of a typical European marriage contract ‘it must surely mean that the parties intended the agreement to have is to regulate the couple’s finances during the marriage, in particular effect wherever they might be divorced and most particularly were against third parties, and rarely does the agreement seek to address they to be divorced in the jurisdiction that operated a system of maintenance or need-based claims on a future divorce (although discretionary equitable distribution’. The judgments in B v S and Z the property regime elected will affect the financial outcome v Z above in the meaning of ‘full appreciation of implications’ were on divorce). Indeed in some countries, e.g. France, it is against considered recently by the Court of Appeal in the case of Versteegh public policy to do so. On the other hand, the English or US- v Versteegh [2018] EWCA Civ 1050 (see below). style marital agreement’s main aim is to limit the couple’s claims In AH v PH (Scandinavian Marriage Settlement) [2013] EWHC against each other in the event of separation and so typically sets out 3873 (Fam), Moor J held that the wife did not have a full appreciation comprehensive financial terms of settlement. of the implications of the Swedish settlement; unlike the husband, The post-Radmacher cases relating to foreign agreements and she was not sophisticated in relation to legal concepts nor was she involving the more typical simple property marriage contract of financially astute. In AH v PH, the assets were non-matrimonial England’s continental cousins are fact specific cases, but in no case and, while Moor J looked at the purpose of the Scandinavian since (and including) Radmacher, has an applicant been kept to the settlement (which was focused on the wife’s housing needs, albeit in strict terms of the marriage contract. Furthermore, in the majority Scandinavia from whence she had moved permanently to England), of cases, there has been a close examination of the parties’ intentions he felt it was fair to invade the husband’s wealth to deal with the when they signed the agreement. wife’s increased housing needs and capitalised maintenance. In In the first reported case,Z v Z (No 2) (Financial Remedies: Marriage ordering the husband to pay the wife a lump sum of £7.75 million Contract) [2011] EWHC 2878, Moor J took into account the terms (including a £5.25 million housing fund subject to a £2 million of the French agreement in limiting the wife to a claim based on her charge and £2.25 million capitalised maintenance), Moor J made it generously interpreted needs. Moor J excluded the wife’s sharing clear that he would have reached the same conclusion in any event, claims, the wife having signed a ‘separation of assets’ property given the short length of marriage (four years), the age of the parties regime before the marriage. Moor J held that ‘there is no dispute (early 30s) and the origin of the husband’s wealth. that the agreement was entered by both parties freely and with Roberts J in her long judgment in Y v Y (Financial Remedy: Marriage full understanding of its implications’, the wife having apparently Contract) [2014] EWHC 2920 (Fam), provides a helpful summary conceded that she had understood the implications of this contract. of the cases at [paras 98–110] and follows the views expressed by It is also worth noting that in Z v Z the French parties had only lived Mostyn J in B v S (adopted by Moor J in AH v PH) rather than in London for a year before the wife issued her petition (so the case Charles J in V v V. had a strong French flavour) whereas in Y v Y (Financial Remedy: Y v Y involved a French couple, aged 49 and 50. It was a 20+ year Marriage Contract) [2014] EWHC 2920 (Fam) (see below) the marriage with some pre-marriage cohabitation and three children. parties had lived in England for all of their married life, over 20 The assets were £14 million, including non-matrimonial assets of years, and Roberts J did not give the agreement any weight. around £1.5 million (held roughly equally). Two days before the V v V (Prenuptial Agreement) [2011] EWHC 3230 (Fam), a wedding, the parties signed a straightforward property marriage Swedish case, involved much smaller assets (£1.3 million), which contract (separation de biens) before a notary. Neither party had were mainly pre-acquired. On appeal, Charles J did not place as independent legal advice, although the husband, who had requested much importance on the parties’ intentions as the district judge the contract, was from a family of lawyers. Shortly after the at first instance, and instead gave great weight to the principle of marriage, the couple moved to London. individual autonomy as established in Radmacher. Charles J took The only issue in the case was whether the marital pot should into account the Swedish settlement (like the other Scandinavian be shared equally or whether, on the husband’s case, the wife agreement in AH v PH (below), where the terms were wider than the should be limited to her needs and sharing of the assets should be simple property marriage contract) and ordered a charge back on the excluded, given the marriage contract. The parties had not lived an property in favour of the husband (plus maintenance).

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extravagant lifestyle and, on the husband’s case in relation to what The Court of Appeal has recently considered the weight of a foreign the wife needed, the wife would have been left with around 30% of pre-marital agreement in the case of Versteegh v Versteegh [2018] the marital assets. The husband conceded that, save for the marriage EWCA Civ 1050. This involved a Swedish pre-nuptial agreement contract, this would be a sharing case and the case centred round the which the judge, at first instance, had taken into account in awarding intentions of the parties when signing the agreement. the wife 23.41% of the business assets but around half of the non- Roberts J accepted that the wife believed that the agreement was business assets (£51.4 million, well in excess of her needs). The only entered into to protect her from third-party creditors, that she wife appealed the decision seeking a greater share of the business had no idea that the agreement would have any effect on a divorce assets (42.5%), acknowledging there should be a small departure and that she was not familiar with such concepts. There was no from equality by the introduction by the husband of non-matrimonial evidence that the notary had advised the parties that the agreement property. The day before the Swedish wedding in 1993, the parties would affect the outcome on divorce (even though that in fact is had entered into a pre-marital agreement based on a separation meant to be their duty). The judge found that, at the time the wife of property regime. The husband was from a wealthy family and signed the contract, she did not have a full understanding of the by the time of the marriage had already inherited shares in family legal implications which would flow from a divorce, nor the rights companies. Immediately after the marriage the parties moved to which she might be giving up by signing. Had the wife understood London where they brought up their three children. the impact of the contract on divorce, she might have thought very Following the parties’ separation in 2014 the husband’s position differently about the fairness of the separation of assets regime was that the wife’s financial claims should be limited to those which she was entering into. governed by the terms of the pre-marital agreement. This would Following her findings, the judge went on to decide the weight (if have meant she would have received assets of £27 million (above any) she would give to the agreement, having regard to the various her generously assessed needs of £22 million). However, by the cases. time of the final hearing he had increased his proposal substantially which would mean the wife would have £38 million liquid resources ‘I find it difficult to see how a full appreciation of[an agreement’s] implications (per Radmacher) will not, in and the 23.41% of the business assets. This was largely accepted almost every case, involve both a full understanding on the by the trial judge who concluded that the wife had had a full part of both parties as to (i) the nature and effect of the terms appreciation of the implications of the agreement when she signed and (ii) of the circumstances in which its implementation it. This was contrary to what the wife claimed; that she thought in a jurisdiction other than that in which it is made will, or that the agreement only covered non-marital assets, she had not had might, affect the scope of any legal award or remedy which legal advice and she had not even read the agreement before the otherwise be available to one of the parties in the event of a wedding and only read it for the first time, following the breakdown divorce …’ of the marriage. The judge did not accept her evidence and indeed So, in considering the weight to be attached to the agreement in Y found the wife’s account untruthful. On appeal, the wife’s main v Y, the judge only gave recognition to the principle that the non- argument in terms of the effect of the pre-marital agreement was matrimonial property should be excluded from any entitlement and that the wife received no legal advice prior to signing, relying on the wife received 50% of the matrimonial assets. Mostyn J’s judgment in B v S (see above). How could she be said to The same weight to non-matrimonial property was given by Mostyn have a full appreciation of the implications of what she was signing J in the case of SA v PA [2014] EWHC 392 (Fam) a Dutch marriage when she (immediately moving to England) was unware of the contract. The couple had entered into a pre-nuptial agreement approach on financial provision upon divorce? The Court of Appeal which stated how capital should be divided in the event of divorce reminds us that legal advice is ‘desirable’ but not essential – and but like many European agreements (unlike Radmacher), there was in this case the trial judge had concluded that the wife knew ‘full no reference to maintenance.4 well’ the effect of the agreement. They concluded that it cannot be correct that couples have to take the kind of legal advice anticipated Mostyn J held that that the wife believed (or she should be taken by Mostyn J, ‘just in case’ they move countries and ‘it cannot be to have believed) that she was agreeing that any capital which was right to add a gloss to Radmacher to the effect that such a spouse acquired from an external source after the marriage would be kept will be regarded as having lacked the necessary appreciation of by the recipient provided that it had been kept separate. The wife the consequence absent legal advice to the effect that some of the had freely entered into the agreement with sufficient advice to countries, in which they may choose to live during their married life, understand its implications. In those circumstances, subject to the may operate a discretionary system’ [para 65]. The Court of Appeal critical question of maintenance, which had not been addressed, it further reminds us that Radmacher includes a safety net through the was fair to implement the capital division specified by the agreement expectation of fairness and the provision of needs. (despite the fact that the parties entered into it the day before the wedding and the wife was pregnant). But what about the approach to wider, all-encompassing agreements more commonly seen in common law jurisdictions such as England, In XW v XH [2017] EWFC 76, the court considered the parties’ the US and Australia? Such cases since Radmacher have been more election of an Italian separation of goods regime but concluded limited but, provided the Radmacher test has been met and the that it would be unfair to uphold the election as the wife did not intention has been to provide for the parties’ claims in the event of a fully understand or appreciate the implications of entering into the divorce (without arguments in relation to duress, etc.), English case agreement. While the wife understood in basic terms the nature law supports the fact that those agreements will largely be upheld and effect of the separazione dei beni (separation of goods) regime, (particularly if they meet the needs of any children and the carer). she did not have any understanding of the circumstances in which In many US states, pre-nuptial agreements have statutory authority its implementation in a jurisdiction other than might affect the (27 US states have now adopted the Uniform Premarital Agreement scope of any remedy which would otherwise be available to her in Act (UPPA), which is designed to provide that such agreements the event of divorce.

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are valid and enforceable contracts and to address the problems of to the agreement and could even negate it completely. As can be conflicting laws, judgments and uncertainty about enforcement as seen from the case law above, the Court will look at the parties’ couples move from state to state). With countries all around the circumstances at the time the agreement was entered into when world now recognising marital agreements, England is behind the considering whether the parties understood the implications of the times in terms of legislative change. agreement and whether they intended it to be effective. For a summary of the best way to ensure that a marital agreement Protecting Clients in Marital Agreement will be upheld by an English court, see the England & Wales chapter also featured in this guide; however, any future children of the Cases marriage remain an overriding consideration and the terms of the agreement (with particular attention on needs) should still result in Given that the answer to whether it is fair to hold the parties to a ‘fair’ outcome. the agreement ‘will necessarily depend on the facts of the case’ (Radmacher, [para 76]), in any case where a foreign marriage As to the future, with the upheaval of Brexit and huge legislative agreement exists, a full proof of evidence at an early stage can only change on the horizon, it is unlikely that the Law Commission’s assist your client. In taking the background, full details should proposals for ‘qualifying nuptial agreements’ will be high on be taken about the client’s intentions at the outset, including the the political agenda. And certainly, there will be no further circumstances in which the agreement was signed, i.e. what did ‘harmonisation’ of family law within Europe. To the contrary, there they think they were signing; was it a simple property regime to is currently a huge uncertainty as to the extent to which the UK will protect each other against creditors during the marriage or a wider remain within the current European family legislation following Radmacher-style pre-marital agreement to protect the parties in the a full Brexit (see chapter 3). However, with the UK’s current event of a divorce? Did they discuss the agreement with anyone, population (for example, some 3.3 million European nationals now either prior to or during the marriage? Evidence of others may live in the UK), it is clear that individuals, particularly those from be crucial (such as in the Court of Appeal case of Versteegh (see other countries where agreements are binding, will continue to above)). When advising European clients before their marriage, seek marital agreements to determine the financial provision in the who seek to protect their assets in the future, it goes without event of divorce and the English court will continue to develop its saying that they should consider entering into a full English-style understanding and recognition of foreign agreements. negotiated pre-nuptial agreement rather than a simple continental- style contract. England does not import foreign law but can export Endnotes our law,5 so it is worth considering whether to enter into the main agreement in England (while considering appropriate clauses in that 1. References in this article to the law in England and English agreement or a similar agreement abroad). Even though a country law are shorthand for England and Wales. may not allow a restriction of maintenance claims in its own country, 2. See question 2.3 in the England and Wales chapter for a list of it may accept a foreign agreement, e.g. from England, which does, all the Section 25 factors. and such agreement could be enforceable under the EU Maintenance 3. The House of Lords was the predecessor to the Supreme Regulation. For clients from all over the world, including common Court. law jurisdictions, consider jurisdiction clauses carefully as, 4. When considering issues of maintenance the English court currently, the stronger financial party is unlikely to wish to elect are used to extending the meaning to the definition of England and Wales as the future forum for divorce. For those clients maintenance as set out in the ECJ case of Van der Boogard who are already married when they come to England, it is worth v Laumen [1997] 2 FLR 399 where maintenance was considering the limitations of the foreign marriage contract and, interpreted as a needs-based award and can be extended to where appropriate, suggest they enter into a post-nuptial agreement. capitalised periodical payments or housing. To encourage the enforceability of the agreement in the future, you 5. See the applicable law provisions under the Hague Protocol will need to show that the parties have entered into the agreement of of the EC Maintenance Regulation No 4/2009 of which the their own free will. Whether the parties obtained independent legal UK has opted out but most of the EU has opted in so other advice and the level of financial disclosure will also be relevant. jurisdictions will recognise the maintenance provisions of a UK agreement. Duress or undue pressure could reduce the weight that is given

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Charlotte Bradley Kingsley Napley LLP Knights Quarter 14 St John’s Lane London, EC1M 4AJ

Tel: +44 20 7814 1200 Email: [email protected] URL: www.kingsleynapley.co.uk

Charlotte 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 The International Comparative Legal Guide to: Family Law and a 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 “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 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 16 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 “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”.

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The Practice of International Family Law Rachael Kelsey

International Academy of Family Lawyers Mia Reich Sjögren

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

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

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of marriage comports with United States recognition of individual as the other parent consenting to the removal or a risk of grave rights. Again, this is a state-by-state topic with some recognising physical or psychological harm if the child is returned. Generally marriages under Sharia law and others not. speaking, the 1980 Hague Convention is an effective method of The availability of financial provision following cohabitation varies swiftly returning children who have been unlawfully removed from hugely across the world and often is not as one might expect. For their home jurisdiction, if an application is made within 12 months. example in the UK, the law of England and Wales does not give the However, once the child has been absent for over a year, the return courts power to deal with the allocation of finances at the end of a process is more difficult. period of cohabitation (other than in limited circumstances where The law in this area is fast-moving and you should be sure to rights in property ownership have been established under trusts law review the case law on the relevant article(s) of the Convention and/or where there are minor children) whereas in Scotland former on the INCADAT website (https://www.incadat.com/en). The cohabitants have statutory rights to make financial claims. outcomes are often not as people would anticipate as there is often Enforcement of orders made abroad, whether falling under the an erroneous assumption that the court will be concerned about heading of “maintenance” or “property division” is often a crucial the welfare of the child, when the issues should not generally have factor. Hague Conventions, European and other legislation have great regard to such matters – which should be for the court of the assisted in this as far as maintenance is concerned but there are still child’s to deal with. For example, in the case of issues with the enforcement of capital orders. It is important to Re L (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720 remember that sometimes capital orders which are made to provide the court returned an 11-year-old child to a country, contrary to her for the needs of an individual may very well fall under the heading wishes. The case concerned an application to return an 11-year-old of “maintenance” even though they are not periodical payments and girl to Lithuania. The mother, who had brought the child to the can therefore benefit from some of the enforcement provisions that UK, resisted the application on the basis that the child objected and exist. that there was risk of grave physical/psychological harm if she were to be returned to Lithuania. The Court of Appeal in England and Wales upheld the decision of the lower court that the child should Child Abduction and Relocation be returned to Lithuania. Although the child in question wished to remain in England, the court noted that the issue of the mother’s In an increasingly globalised world, disputes between parents over influence weighed heavily on the trial judge’s mind. As such, their children’s country of residence are on the rise. At its most considering all the circumstances of the case, the child was returned extreme, this field can involve the unlawful removal of a child to to Lithuania. another jurisdiction by one parent. Although removing a child from There are other relevant Hague Conventions too, for example, the the jurisdiction without permission of the other is generally against 1996 Hague Convention https://www.hcch.net/en/instruments/ the law, domestic courts are inherently unsuited to dealing with such conventions/full-text/?cid=70-, usually known as the “Protection cross-border issues, lacking the ability to have their orders enforced Convention”. This Convention bolsters the provision of the 1980 without government involvement. As a result, various international Convention in some respects and extends provision for children agreements exist to combat child abduction. It is worth noting who move internationally beyond the child abduction regime, for that whilst some countries are not signatories to the 1980 Hague example, by including provision to allow orders made in different Convention on Child Abduction (see below) there may be bilateral jurisdictions to be enforced. For example, if a child has been agreements between individual states that deal with this issue (for unlawfully removed and there is an order in favour of the left- example, as between Pakistan and the UK). If the state is not one behind parent in their country of habitual residence, the order will of the 98 parties to the 1980 Hague Convention, the solution may be enforceable in other jurisdictions. In some cases, this can offer have to be found through diplomatic routes as opposed to legal ones. a second route to pursue for left-behind parents in a child abduction The 1980 Hague Convention on the Civil Aspects of International scenario. The 1996 Convention applies to children up to the age of Child Abduction is an international agreement that seeks to protect 18. There are only 48 contracting parties to the 1996 Convention. children from the harmful effects of abduction and retention across Brussels II also contains provisions relating to child abduction international boundaries by providing a procedure to bring about between EU Member States, and these build on and enhance the their prompt return. There are procedures to ensure the swift return 1980 and 1996 Hague Convention provision. Brussels II can of any children unlawfully removed (or retained) from their country therefore be useful as it contains better provisions in a number of of habitual residence. There are various conditions that must be met respects. for the 1980 Hague Convention to apply. The Convention is a state- to-state treaty which means that party states have an obligation to each other to ensure that the Convention is upheld in their domestic Private Children Law law. The jurisprudence on the Convention comes from across the world As parents move from state to state, either with or without their and there are significant complexities. In somewhat overly simplistic children, various legal issues arise. The most obvious relate to terms only, therefore, some of the critical elements are that the child cross-border relocation; the international context also touches upon in question must be under the age of 16 and must have been (prior to enforcement of orders and jurisdiction. the removal or retention) habitually resident in the state in respect of i) Leave to Remove (Relocation) which the return application is being made. Moreover, the applicant Many parents choose to pursue international relocation through parent (or in some cases, applicant institution) must have had rights the courts by an application for leave to remove the children from of custody over the child in question. another jurisdiction to “go home”, or to follow a job or to follow Providing that the application is made within 12 months of the a new partner or for a lifestyle choice. Regrettably many parents wrongful removal, the courts of the country where the child has (and lawyers!) do not realise that it is a criminal offence in many been taken/is being retained are required to order their return parts of the world to remove a child without the appropriate consent, forthwith. These courts should in theory deal with the matter within generally of every party with parental responsibility, or without an six weeks. Various defences exist that can prevent a return, such order of the court. Generally, the need for written consent of all

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those with parental responsibility (or from the court) being required expressly included – again, this is because the EU law in the arena before a child can be removed exists in many countries. There are of family law is directed not at the substantive law (which remains significant differences across the world, however, especially in a matter for states themselves), but rather at the PIL provisions as some Sharia-based systems or when it comes to the role of the views between the Member States. of the child or young person. As would be expected, in EU Member States, the primary basis In most countries the welfare of the child is the paramount for jurisdiction is the habitual residence of the child. If habitual consideration. Different states determine this in different ways residence cannot be established, then the state where the child is and there is also considerable variation in the extent to which present will have jurisdiction. There are some exceptions to this the court will have regard, and give weight, to other factors. For general rule, but they are rather limited. One exception is when a example, some states will give fairly significant weight to the child lawfully moves to another jurisdiction within the EU. The desires and welfare of the parent making the application to move state the child has just left retains jurisdiction for three months for (framing that often as impacting on the child). Many other states, the purpose of modifying a judgment on access rights. however, adopt a tougher approach to international location, whilst Another exception applies where matrimonial proceedings are still characterising this as coming from a “welfare” approach. For ongoing in another jurisdiction. Jurisdiction will be established in example, in Germany, a parent can only lawfully remove a child relation to parental responsibility connected with the application from the jurisdiction if the other party consents or if they are granted if at least one spouse has parental responsibility for the child and sole care of the child by the court. This is relatively rare and jurisdiction has been unequivocally accepted by the spouses and decided with reference to the best interests of the child. Case law in all holders of parental responsibility and it is in the best interests Germany has tended to focus on deficiencies in the care of the other of the child to do so. This jurisdiction comes to an end when parent when granting permission to relocate, resulting in a much the proceedings for divorce/separation come to an end and final stricter approach. There can be significant subtleties from state to judgment is given in the relevant proceedings. state that need to be understood before a strategy is adopted. For iii) Enforcement example, within the UK, there have tended to be different outcomes – applications for relocation tend to be more successful in England In terms of enforcing existing orders, in the EU, Brussels II has and Wales than Scotland and in the United States you will find a provision to ensure that access endures when the parties move variety of approaches to a motion for relocation; however, the trend between Member States. This is by a mechanism called an “access is generally to prohibit. order”. A certificate will be issued by the original judge, certifying that all parties (and the child) have had the opportunity to be heard There is no parallel provision to the 1980 Hague Convention on and that the respondent party has had the chance to prepare a defence. International Child Abduction with regard to leave to remove The access judgment will become automatically recognised and applications. However, this area of law is showing some nascent enforceable in all Member States. The enforcement process will be signs of harmonisation. At the International Judicial Conference determined by the Member State. However, it is worth bearing in on Cross-Border Family Relocation in Washington DC in March mind that in some states there will also, concurrently be jurisdiction 2010, this issue was considered. Over 50 judges and experts signed to make a fresh application to the new state’s court. In this sense, a declaration that there should be no presumption either way when access rights are far from guaranteed. There are to be changes soon matters of international relocation came before a court. As above, to the enforcement regime that should make it easier still to have welfare should be the determinative principle. recognised and enforced orders from another EU Member State – Overseas relocation can also engage Articles 6 and 8 of the European these come from the recast of Brussels II which is likely to come Convention on Human Rights (the right to a fair trial and the right to into effect in 2019 or 2020. respect for private and family life respectively). The ECHR requires Outside of the EU, the solution may be to seek a “mirror order” of that states scrutinise and evaluate the parents’ plans with reference a foreign judgment in the home jurisdiction, or vice versa. This is to the proportionality principle, especially in light of the links being essentially an order in the same terms as the foreign order. This can severed between the child and one parent. be useful in international relocation cases, requiring the relocating ii) Jurisdiction party to undertake to secure an order relating to access in the new As would be expected, the primary basis for jurisdiction in most jurisdiction before leave to remove is granted. Again, this is not a states is the habitual residence of the child. If habitual residence straightforward area of law, as some states will not make an order cannot be established, then the state where the child is present will before the child is within that court’s jurisdiction and there is no likely have jurisdiction. There are some exceptions to these general such thing as a mirror order. For example, in India, the courts rules, but they are rather limited. Most take the form of a lingering will not consider mirror orders and will begin every examination jurisdiction from a previous country of residence and require the afresh. This matter can become particularly complicated in Islamic consent of all parties, but some Sharia-based systems do provide for countries where the matter is complicated by Sharia compliance jurisdiction based upon parentage. and the fact that many of these countries have not adopted the 1980 In the United States, there is a uniform law known as the Uniform Hague Convention. Child Custody Jurisdiction and Enforcement Act (UCCJEA), iv) Child Support generally adopted in most states, which provides that jurisdiction Child support again is a matter of domestic law. The extent to which is where the child has been a resident for six months, with some child support can be claimed and/or enforced across jurisdictions exceptions. varies hugely. In some jurisdictions a formula is applied whereas in Beyond this, Brussels II governs jurisdiction between Member others it is a matter for the courts to determine what amount should States of the EU, in relation to the allocation, exercise and restriction/ be paid. removal of parental responsibility. However, it does not cover all Should a court order child maintenance, or there be an entitlement issues, with notable exclusions being the establishment of parent- under the regime in any given state, in respect of the parent outside child relationships, adoption, maintenance obligations, trusts and of the jurisdiction, it will need to be enforced. There are a number succession and the determination of a child’s name. The main areas of international arrangements that exist including the 2007 Hague of private children law, such as custody and rights of access, are Convention, known as the Maintenance Convention and there

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are also a number of reciprocal enforcement of maintenance procedure. For example, in Brazil there is provision for “no-fault” orders (REMOs) arrangements between various countries. There divorce and parties can attend court with their marriage certificate, is provision specific to EU Member States in the Maintenance ID documents and a fee in order to obtain a divorce. In contrast, the Regulation. These can ensure payment when the paying party lives procedure in England and Wales can take much longer as divorce outside of the jurisdiction. requires a justification and a sequence of paperwork to be lodged at court. Procedural differences also arise in some more discrete areas, such as disclosure, court process and timing. The Hague Conventions Disclosure is one element of procedure in financial disputes that can have a huge bearing on the final outcome. A range of approaches These are conventions proceeding from The Hague Conference on exist across different jurisdictions. Common law jurisdictions Private International Law (HCCH) – a number have already been tend to have more robust disclosure procedures. In California, touched upon. The Hague Conventions are relevant to international for example, each spouse must fully disclose to the other all family law in terms of developing both substantive law and material information concerning the existence, procedure. Although the most well-known convention relates to and valuation of all assets. This duty is ongoing, meaning that child abduction – the 1980 Convention – the Conventions also cover updating disclosure is required up until each asset has been dealt a range of other important areas, many of them procedural. They with by the trial judge. Moreover, the onus is on the asset-holder include the Hague Service Convention 1965, The Hague Evidence to disclose information; it is not a defence to argue that the other Convention 1970, The Hague Trusts Convention 1995 and a number party did not ask the appropriate questions. Monetary sanctions of others, some of which have been used as the foundations of EU exist if disclosure is inadequate. The law in England and Wales is instruments that enhance the provision for EU Member States. similar, requiring robust disclosure. Failure to disclose can result in two outcomes: if non-disclosure is suspected at the hearing, the Trusts and Other Financial Vehicles court can (and frequently will) make assumptions as to the withheld information and adjust its order accordingly; if non-disclosure The power of the court to interfere with trusts varies hugely. Trusts comes to light after an order has been made, then there is the are essentially a common law concept and often misunderstood, possibility for the matter to be reheard depending on how material or even mistrusted, by the courts in civil law jurisdictions. Many the non-disclosure was. jurisdictions will struggle to deal with assets held in a trust in the In contrast, in some other jurisdictions disclosure is minimal. This context of financial proceedings on divorce. is particularly true in continental Europe. Many civil law countries It is probably in the jurisdiction of England and Wales that the trust adopt the “hide and seek” approach. For example, in Austria and is most prevalent. The court there has the power to vary a “nuptial Scotland, there is no obligation on a spouse to disclose their assets. settlement” as part of financial proceedings (including a structure They must only do so if the other party makes a specific demand. As that they define as a “nuptial settlement” drawn under the law of such, there is no effective way to guarantee a full and accurate picture another place). There is no precise definition of a nuptial settlement, of the assets of both parties. There are “declarations of honour” in but case law has drawn a wide net when considering this issue. It is some jurisdictions and not a lot more; in many civil law jurisdictions some form of settlement which makes continuing provision between the lawyer’s first duty is to the client and not to the court which leads spouses and can be created before or after marriage. The court to less openness in financial proceedings on divorce. Where one is should not interfere with the settlement further than is necessary and dealing with proceedings, or possible proceedings, in common law must be wary of the impact on third parties. vs. civil law jurisdictions these procedural differences may actually tip the balance in deciding where to try to proceed. There are many other financial structures that are used commonly – for example, there are many partnerships drawn under the law of Accommodation must also be made for the differing court processes Delaware to benefit from the legal regime there, where otherwise across the world. For example, common law jurisdictions tend to there is no other Delaware connection. You may well need to adopt an adversarial model, in which each party (or their advocates) get advice on the structure in the relevant jurisdiction, as well as will make representations and examine witnesses in front of a considering how your own jurisdiction should deal with it – both judge who will then make a decision. In contrast, many civil law in the context of the financial provision application, and also when jurisdictions will involve a judge engaging in a fact-finding exercise it comes to variation and enforcement against the /officers. and questioning the parties directly. Whether or not variation is possible in your jurisdiction, as ever with assets based outside of the jurisdiction, enforcement will always be Summary an issue. A trust outside the jurisdiction may well also hold assets in England and Wales. It may therefore be possible for an English As can be seen, “International Family Law” is not a discrete field of court to have recourse to this property if it can be argued that it is law but rather a more nebulous body of knowledge and experience “available” to one of the parties. that touches upon various aspects of a domestic family law practice. Many areas of international family law still resemble a patchwork Procedure of different approaches and whilst other areas are embracing harmonisation, that is perhaps less the case in family law; certainly in relation to substantive law, if not recognition and enforcement. Even if the substantive differences in the law have been addressed, Therefore, it remains crucial, now more than ever, for lawyers to the procedural idiosyncrasies of any jurisdiction must also be seek specialist advice from a lawyer who knows the law in their own considered. It is crucial to look beyond the letter of the law to see jurisdiction and has experience of international family law work. how family proceedings will actually play out in practice. On a general level, the differences in the substantive law can impact on

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Rachael Kelsey Mia Reich Sjögren SKO Family Law Specialists Advokaterna Sverker och 18 George Street Mia Reich Sjögren AB Edinburgh Box 2040 EH2 2PF 403 11 Gothenburg Scotland Sweden

Tel: +44 131 322 6669 Tel: +46 311 74260 / +46 708 114881 Email: [email protected] Email: [email protected] URL: www.sko-family.co.uk

Secretary of IAFL. President of IAFL. Rachael is a Scottish lawyer, who works in Edinburgh and London. Mia was elected to be President of the IAFL in 2018 for a two-year She is one of only three ranked solicitors in Scotland in the current term. She was previously President of the European Chapter of the edition of The Legal 500 and has been recognised for many years as a IAFL from 2008–2010 and has been a Fellow since 1994. She has first tier ‘Ranked Lawyer’ in Chambers & Partners. She was Counsel held multiple roles in the IAFL as well as being a longstanding member to the IAFL before becoming Secretary in 2014. of the Swedish Bar Association (since 1984) and the IBA, Family Law Division. Chambers notes that Rachael “is renowned for her skills in complex litigation” whilst The Legal 500 reports that she is “An outstanding Mia has lectured extensively on Swedish Family Law and is hugely lawyer for complex financial issues” and notes that “She attracts praise experienced in international matters where there is a Swedish element. for being ‘phenomenally strong on the law while looking at everything She practises across a range of family law issues including: property practically and with the client in mind’, and for her ‘boundless energy division/financial provision; divorce; child law (including child custody/ and superb judgement’.” residence/contact, child support, parentage/paternity and relocation/ removal from the jurisdiction); and same-sex partnerships. Rachael provides expert opinions on for courts outwith Scotland and many of her cases have international or intra-UK Mia speaks Swedish, English, German and French. jurisdictional issues, an area of specialism for which she is particularly well-known.

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 780 fellows, practising in 78 different jurisdictions.

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Brexit and Family Law Charlotte Bradley

Kingsley Napley LLP on behalf of Resolution Stacey Nevin

individual substantive laws) are subject to Council Regulation Introduction 2201/2003 (“Brussels IIa”). Article 21 provides for there to be automatic recognition in all Member States of divorce, legal This chapter is written by Stacey Nevin and Charlotte Bradley separation or marriage annulment orders, with the limited grounds of Kingsley Napley LLP with the support of Resolution, the for non-recognition set out in article 22. By virtue of Brussels IIa, main organisation of family lawyers in England and Wales. we have a harmonised set of rules across the European Union on Resolution has approximately 6,500 members of solicitors and jurisdiction, with a procedure stipulated in the event that there are other professionals who practise according to a code of practice competing jurisdictions. which promotes a constructive and non-confrontational approach in Child abduction and children issues resolving family disputes, prioritising the interests of children. The UK is a signatory to both the 1980 Hague Convention and Brexit has the scope to bring about the biggest change to family Brussels IIa, the latter taking priority over the former in matters of law practice in the UK in decades. The potential ramifications for wrongful removal or retention of a child. Whilst our exit from the family law practitioners and our clients are huge. However, with European Union will not affect our ratification of the 1980 Hague the UK’s likely exit from the European Union on 29 March 2019, Convention, which shall remain in use within our borders, we are we are still unclear as to what UK family law post Brexit might likely to lose the benefit of the faster solutions provided by Brussels look like. IIa. Resolution’s International Committee, led by its chair Daniel An important element of Brussels IIa is the priority given to the Eames, has been at the forefront of the discussions and debate child’s country of origin, for having the final say as to what should about the UK’s approach to family law post Brexit. Some of this happen to that child. Brussels IIa also deals with issues of parental chapter is based on the Brexit and Family Law paper dated October responsibility, giving jurisdictional priority to the state of the 2017 (prepared by Eleri Jones of 1GC on behalf of Resolution, the child’s habitual residence, save for in certain exceptions. The International Academy of Family Lawyers and the Family Law Bar Commission proposal “Judicial rules and cooperation in family Association) (“The Brexit paper”).1 matters (recast of Brussels IIa Regulation)”, submitted on 30 June 2016, sets out a recast of the Brussels IIa Regulation, after Factual and Legislative Context carrying out an evaluation of the Regulation with the framework of its Regulatory Fitness (“REFIT”) programme. The evaluation There can be no doubt that citizens in the UK benefit from a concluded that whilst the overall Regulation functions well, there harmonised family law system across the European Union. Around are a number of shortcomings which mean it has not reached its full 900,000 UK citizens are long-term residents of other EU countries.2 potential. A recast is proposed, which would see a new and improved Likewise, there are estimated to be 3.7 million EU citizens living in Regulation, with some of the anticipated revisions offering more the UK.3 Many of these individuals make up families who are not positive features that are absent in the 1980 Hague Convention. confined by borders. There is no official data setting out how many Our exit from the European Union could see the UK lose out on families in the UK comprise of couples with different international those beneficial revisions. Further, it could see a situation where the origins, but most UK family law practitioners would confirm that UK is applying the old Brussels IIa whilst the rest of the European family law cases here have become increasingly international, both Union applies the recast version. in respect of the of the individuals, and the location of Maintenance assets and homes. The UK currently applies Council Regulation No 4/2009 (“the EU EU law is a fundamental part of international family law and UK Maintenance Regulation”), which applies to any maintenance family law practitioners rely on and implement a number of EU obligation arising from a “family relationship, parentage, marriage Regulations and Directives in their regular practice by virtue of or affinity” (article 1(1)). The EU Maintenance Regulation sets out being a Member State of the European Union. EU law has had a uniform rules on jurisdiction (articles 3 to 7), including the ability significant effect on a number of areas of international family law, to agree jurisdiction. This is particularly important for nuptial for example: agreements, where parties may wish to stipulate which Member Divorce State should deal with any question of maintenance in the event of a future marital breakdown. As part of the UK, the individual legal states, namely England & Wales, Scotland and (which each have their own

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Article 12 states what should happen where proceedings are started ■ recognition and enforcement of judgments and cooperation in two states, similarly to article 19 of Brussels II for divorce between authorities (including the sharing of information). proceedings. The EU Maintenance Regulation provides for The Court of Justice of the European Union (“CJEU”) automatic recognition across the European Union, and for automatic When there is a question of interpretation of the various EU legal enforcement across the European Union for all maintenance orders instruments, the court in any Member State can make a referral to made in Member States, except for Denmark and the UK. the CJEU, based in . In family law, the CJEU is not Service deciding on each Member State’s individual substantive law but is Service of documents between Member States is regulated by the the arbiter of any dispute about what any EU law means and aspects EU Service Regulation (Council Regulation 2007/1393/EC), which of its procedure. provides that each Member State must designate “transmitting Currently, there is a political appetite for the UK to end its agencies” and “receiving agencies”, respectively competent for the involvement with the CJEU but if, as is currently proposed, EU transmission and receipt of judicial or extrajudicial documents from family law provisions are going to be written into UK law, then it another Member State. The receiving agency in one Member State will cause real difficulties in practice and for the future development is responsible for service in that state upon receipt of documents of family law if we are no longer subject to the CJEU. from another Member State’s transmitting agency. The Service Regulation provides certainty as to whether service has been effected and if so, when. A Legal Vacuum Domestic abuse The European Protection Order was introduced by EC Directive Article 288 of the Treaty on the Functioning of the European Union 2011/99/EU and applies between European Union Member States (“TFEU”) requires all Member States to “adopt regulations, (apart from Denmark). The Directive allows court protection orders directives, decisions, recommendations and opinions” made by made in criminal cases in one Member State to be enforced in the European Union. The Regulations and Directives listed above another (recital 18). are binding on the UK, and directly applicable. The triggering of Article 50 on 29 March 2017 started the two-year countdown to Regulation 606/2013 provides for mutual recognition of protection Brexit. Once the UK leaves the European Union, it will cease to be measures in civil matters to be recognised and enforced in other a signatory to the TFEU, and will therefore no longer remain subject Member States (again, apart from Denmark). Article 3(1) defines a to article 288. Without proactive steps, all aspects of EU law would “protection measure” as “any decision, whatever it may be called, cease to have force in the UK; they would simply fall away leaving ordered by the issuing authority of the Member state of origin in a legal vacuum. accordance with its national law and imposing one or more of the following obligations on the person causing the risk with a view Resolution has formed a Brexit Working Group tasked with to protecting another person, when the latter person’s physical identifying the provisions of domestic family legislation which have or psychological integrity may be at risk: (a) a prohibition or been brought in to implement EU instruments. After over 250 hours regulation on entering the place where the protected person resides, of work itemising the relevant family law legislation which will be works, or regularly visits or stays; (b) a prohibition or regulation affected by Brexit, the report produced was over 200 pages long; of contact, in any form, with the protected person, including by an indication of the size of the potential legal vacuum post Brexit. telephone, electronic or ordinary mail, fax or any other means; (c) Such a vacuum is unworkable, leaving family practitioners in the a prohibition or regulation on approaching the protected person difficult position of advising their clients with no certainty. closer than a prescribed distance”. The majority of the orders made under the Family Law Act 1996 and the Protection from Harassment Avoiding a Post-Brexit Legal Vacuum Act 1997 fall under this definition, and the European Protection Order and Regulation 606/2013 provides for these to be recognised In order to avoid a legal vacuum, the UK will require express and enforced automatically in other Member States. domestic statutory provision to be made. Exactly how that will Mediation happen and what the provision will say, however, is a complex issue. The EU Mediation Directive (2008/52) aims to facilitate access to Resolution’s Brexit paper dated October 2017 (see above) set out Alternative Dispute Resolution and promote settlement of disputes. three possibilities once the EU family law provisions cease to apply Importantly for intra-European cases, article 6 requires Member in the UK: States to ensure there is a mechanism in place to allow parties to 1. The UK could replicate the EU instruments in our own enforce a written agreement resulting from mediation in another domestic law and maintain the reciprocal arrangements Member State. between the UK and other EU Member States. Sharing information This would mean we would effectively retain the current system and we would need to remain bound by decisions of The European Judicial Network is a network of contact points for the Court of Justice of the European Union. It would require the facilitation of the cooperation and for the establishment of direct proactive measures; most likely a bespoke treaty with the contacts between the judicial authorities in the EU Member States. European Union to ensure reciprocity is maintained. This It looks to improve cooperation between judges and legal authorities would rely on cooperation and agreement with all remaining at an official level. Member States. This is the authors’ and Resolution’s It is self-evident from the brief summary above that the EU favoured option. provisions affecting family law adhere to a number of key 2. The UK could replicate the EU instruments in our own principles: domestic law, but without retaining full reciprocity with the other EU Member States. ■ providing legal certainty; Whilst this approach removes the headache of obtaining the ■ establishing mutual trust between Member States; cooperation and agreement of all Member States that option ■ ensuring there is a connection for a court to hear a dispute; and one presents, it leaves the UK on a “one way” street, with no guarantee that the rest of the European Union will respect

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the UK’s jurisdiction or recognise or enforce UK orders in present a problem, albeit one we may not have to face for a return. Reciprocity is a fundamental concept, without which number of years. Remaining bound by the CJEU appears to offend a harmonised system would simply not work. Currently, each the idea of UK sovereignty for some, for which those voting for Member State has confidence that another Member State will Brexit campaigned so hard. However, within the context of family reciprocate and there is certainty as to what should happen law, EU law is largely about procedure. Despite our current EU procedurally if there is litigation in more than one state. If membership, as stated above, within the UK, England & Wales, France is seized first in time, followed by proceedings in England, the French courts can be confident that England will Scotland and Northern Ireland have their own individual substantive stay the proceedings. With option two, whilst France could family law and only apply this law in family cases. The European have confidence that England would stay the proceedings Union does not dictate how the UK courts should decide how much if seised second in time, if the roles were reversed, English maintenance a divorcing spouse should get or with whom a child practitioners could offer their clients no such assurances. should live. The EU Instruments that we currently remain bound by Without reciprocity, litigants will face uncertainty, which provide a uniform set of procedural rules. Similarly, the decisions of will inevitably lead to delay and increased costs. This is, in the CJEU by which we are currently bound concern only procedural our and Resolution’s view, the worst option. rules and rules of private international law. Unlike other areas of 3. Make our own bespoke arrangements with the EU, which law, each Member State’s domestic law is not a question for the sets out a new framework for family law cooperation CJEU within family law. The CJEU does not dictate what law between the UK and the European Union. we should apply or what our domestic law should be; it rules on The current framework is fit for purpose, however, it is not procedure; are we applying the rules correctly? Nor does the CJEU perfect. A bespoke arrangement with the European Union have any power to make final orders or enforce its judgments within would give the UK the opportunity to retain the benefits Member States. It relies on Member States referring cases where of a system based on mutual recognition, whilst releasing questions arise. ourselves from aspects of intra-EU family law with which we are not happy, for example, the lis pendens rule (which Within a harmonised system, there is a clear benefit to having a creates a race to court). It is a system that often results in tribunal to resolve questions of interpretation and implementation unfair outcomes and is contrary to mediation and non-court of rules. If we are not to be bound by the CJEU in the future, dispute resolution methods, or even reconciliation. However, something will need to take its place. The question then is whether realistically, this option would require a huge amount of other Member States will agree to a new tribunal. With a tried and negotiations with the European Union which, in turn, would tested system in place that appears to work, this seems unlikely. need to obtain the agreement of all its Member States. It is Frustratingly, the UK has yet to propose an alternative to the CJEU wholly unrealistic that this would happen before 29 March despite maintaining its position that the UK should remain bound by 2019, if at all. Furthermore, it is realistic to assume that the other Member States would expect us to remain bound by CJEU decisions in the future. future CJEU decisions. It is understood that the reciprocal family law arrangements between Resolution’s Brexit paper states a preference for the first option, the UK and the remaining Member States are set to continue until particularly as a transitional, stop-gap arrangement. It retains December 2021, giving the UK a further two-year window before reciprocity, avoids the legal vacuum and may be possible, any changes to family law need to be made. At the very least, logistically, in the short timeframe with which we are faced by the family law clients have this extended period of certainty. After triggering of article 50. 2021 the position is unknown, however, promisingly, the European Commission has stated that it agrees reciprocity is a priority for family law. The UK Government’s Position As the negotiations continue, those concerned about a perceived lack of progress should be relieved to hear that the UK government When the UK government published the White Paper in February can amend the EU Withdrawal Bill without the need for legislation; 2017, references to divorce, children issues, maintenance or an additional hurdle that would only cause further delays towards domestic violence were absent. The Great Repeal Bill would force achieving a clear outcome for Brexit. the UK to adopt the EU rules with no guarantee that the rest of the European Union would adopt the same rules; the risk of a one-way street rears its head again. Can Existing Instruments Plug the Not to be dissuaded, Resolution has been lobbying hard. Written Vacuum? evidence was submitted by Resolution to the Justice Select Committee, and Daniel Eames gave oral evidence, setting out the Assuming nothing happens by 29 March 2019, there are some likely effects on the family justice system and the possible solutions existing instruments and old UK bilateral treaties that would remain available. Some progress has been made, and on 31 January 2018, applicable between the UK and Member States. For example, Baroness Sherlock tabled the following amendments: the 1970, 1980, 1996 and 2007 Hague Conventions would all 1. A requirement on the Government to report every six months go some way to fill the legislative vacuum that Brexit will leave on the progress of negotiating new reciprocal arrangements behind. However, even collectively, they will not fill the gap in family law and a specific requirement to seek ongoing entirely. For example, the 1996 Hague Convention on Parental reciprocal arrangements. Responsibility and Protection of Children does not offer the 2. Allowing the UK court to refer family law matters to the automatic enforcement of contact orders that Brussels IIa offers. CJEU for eight years, where a referral has been made, to be The 2007 Hague Convention on the International Recovery of Child bound by that decision. In addition, the English court should Support and Other Forms of Family Maintenance assists with have regard to other CJEU decisions. the recognition and enforcement of maintenance obligations, but 3. Ensuring that the Hague Conventions are ratified by the UK. contains no direct provisions about jurisdiction. Neither go as far Whilst UK family law practitioners can breathe a sigh of relief as the Maintenance Regulation. that the importance of reciprocity appears to have finally been The Government has stated its intention to continue to be a leading recognised, the reluctance to remain bound by the CJEU may member in the Hague Convention, but those conventions alone

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will not be enough if we wish to retain the full benefits we and an example where it can be said that EU family law overreaches. our clients currently receive from EU family law. Furthermore, Family law post Brexit offers us the opportunity to no longer be where our ratification of the Hague Conventions is by virtue of our bound by article 3. membership of the European Union, the UK will need to renegotiate When our membership ceases, there may be opportunities to explore their position as a signatory post Brexit. bilateral treaties with non-EU countries; something the UK could not contemplate whilst a member of the European Union. Whether Opportunities for the UK? we will is a different matter, but the option will now be available. For non-EU conventions, for example the 2007 Hague Maintenance Most Brexit family law commentary has focused on the problems Convention, the UK will no longer be forced to delay ratification due Brexit will present UK family law practitioners. However, the to the need for the European Union to obtain the consent from all of opportunities it could offer should not be ignored. If there is scope its Member States. If we wish to sign up then, like jurisdictions such for a bespoke arrangement between the UK and the European Union as Canada, we can as soon as we wish to. We will not be held back in the future, we could seek to opt out of those parts of EU family by other Member States considering their own position. law that cause family law practitioners headaches. The issue of the lis pendens rule is referred to above. Bringing an Conclusion end to the race to court would be a change welcomed by most, if not all, family lawyers here. Non-EU cases do not present this problem. The negotiations for Brexit are far more difficult and wide-reaching The decision on where the case is heard is largely based on the closest than perhaps anybody had contemplated prior to the referendum. connection the family has with a particular country, the position Despite this, Brexit is happening and UK family law practitioners across the European Union before Brussels II. It is understood that, need to prepare their clients, either for change or for a period of in the event of a no-deal Brexit, the most likely scenario will see the uncertainty. Given the government’s long Brexit to-do list, family UK move back to this system to ensure we do not find ourselves in a practitioners would be forgiven for worrying that family law is low one-way street predicament where the UK respects Member States in priority; one of our major pieces of domestic legislation is over issuing proceedings first, but that is not reciprocated. Currently, in 40 years old. Family law has never featured high on the political non-EU cases issuing proceedings can be delayed without risking agenda. The work of Resolution and those campaigning for the right everything in the case. There is time to consider reconciliation or family law deal post Brexit cannot be underestimated. Whatever alternative dispute resolution before the court becomes involved. happens, change is coming for the UK and its relationship with its Once there is court involvement, considering these options can neighbours in family law. become more difficult, psychologically, for the respondent party, and it is often a case of too little, too late. A move back to the system for UK/EU cases may be welcomed by many family law Endnotes practitioners. At present, in international cases, the court faces limitations on 1. www.resolution.org.uk/site_content_files/files/brexit_and_ family_law.pdf. maintenance claims based on needs where the only connection is sole or sole . Article 3 of the EU Maintenance 2. Office of National Statistics report; What information is Regulation states that EU Member States only have jurisdiction there on British migrants living in Europe?: January 2017 https://www.ons.gov.uk/peoplepopulationandcommunity/ for maintenance claims when either party is habitually resident in populationandmigration/internationalmigration/articles/ that country or when, ancillary to divorce proceedings provided, whatinformationisthereonbritishmigrantslivingineurope/ jurisdiction for the divorce proceedings is not based exclusively jan2017. on sole domicile. This means that for divorce cases where sole 3. Office of National Statistics; Population of the UK by domicile is relied upon (i.e. when other tests for jurisdiction cannot country of birth and nationality https://www.ons.gov.uk/ be satisfied in the UK or any other Member State, or where there peoplepopulationandcommunity/populationandmigration/ are connections with countries outside of the European Union), the internationalmigration/datasets/. UK (as with the other Member States) cannot make needs-based maintenance awards. This is a deeply unsatisfying position and

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Charlotte Bradley Stacey Nevin Kingsley Napley LLP Kingsley Napley LLP Knights Quarter Knights Quarter 14 St John’s Lane 14 St John’s Lane London, EC1M 4AJ London, EC1M 4AJ United Kingdom United Kingdom

Tel: +44 20 7814 1200 Tel: +44 20 7369 3824 Email: [email protected] Email: [email protected] URL: www.kingsleynapley.co.uk URL: www.kingsleynapley.co.uk

Charlotte is head of the Family team at Kingsley Napley, where she Stacey is an Associate Solicitor in the Family team at Kingsley Napley. has been a partner since 2001. Charlotte specialises in all aspects She specialises in all aspects of family law, with a particular focus of family law, including international issues, both in relation to finance on cross-border disputes involving jurisdiction races and proceedings (particularly cases of Schedule 1 provision for unmarried parents) and in multiple countries, and complex financial issues including offshore children (particularly relocation). She is also an accredited mediator trust arrangements. Stacey writes regular articles and has been and collaborative lawyer. She writes regular articles and has co- quoted in the press, offering commentary on landmark cases. She is authored a number of books on family issues. She is the Contributing a member of the Brexit Working Party to the Resolution International Editor for The International Comparative Legal Guide to: Family Law Committee and Property, and Pensions Committee, a group and a Fellow of the International Academy of Family Lawyers. of lawyers formed to consider the impact Brexit will have on family legislation in England & Wales. In the recent published legal directories, Chambers UK and The Legal 500, she has been described as “fantastic – she has all the attributes In the recent published legal directory, The Legal 500, Stacey has you want from an international family lawyer, and has warmth in been described as a lawyer with “very good client care, a detailed abundance”, being “absolutely brilliant at jurisdictional elements of knowledge of the law and good judgement when it comes to tactics”. 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 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 16 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 “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”.

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Silent Heartache for Grandparents

Lloyd Platt & Co. Vanessa Lloyd Platt

Over the last few years there has been a growing area of work instance by the Coalition Government. The review was finally for many family law practitioners. That is, dealing with disputes reported on in November 2011 and concluded, to the chagrin of involving grandparents who wish to maintain a relationship with both the Labour Government, Coalition and many practitioners, their grandchildren after their children have gone through a divorce that the need for grandparents to apply for leave should remain. or relationship breakdown. It stated “this prevents hopeless or vexatious applications that are There was a family justice review undertaken in 2010, which not in the interests of the child”. The Government accepted the was fully reported upon in November 2011, to look at the issue recommendation and this has remained the position ever since. of grandparent contact. This report stated that the law in relation More recently, the current Justice Minister, following a discussion to grandparents was, effectively, that there were sufficient legal in Parliament, whilst supporting the contention that more needs remedies for grandparents and no need for there to be any change. to be done to promote relationships between grandchildren and The basic principles put forward by that review were that contact grandparents, gave a very clear indication that she did not believe for grandparents with their grandchildren is often agreed globally that there was any evidence that the review of 2011 should be with the parents or carers of the children concerned and therefore overturned. there is not such a problem to warrant a change in law. They went There are still many of us practitioners who feel that given the huge on to say that where this could not be agreed, grandparents could number of grandparents who care for, or are involved in the care of, always apply to the Court for what is known as a “child arrangement their grandchildren, and whose relationship for a number of reasons order” and that the requirement for them to apply for one extra can suddenly be severed, should not have to go through this two- hurdle of leave to do so, was not too problematic. It is here that pronged exercise in order to see their grandchildren. both this firm and other practitioners must take huge issue. The Many have asked why the review came to the conclusion that it did purpose of this article is to set out in full the difficulties that have and there have been many different reasons that have been provided. been experienced by millions of grandparents countrywide and to be The official one is that there were too many grandparents applying, a mouthpiece for some of those very sad stories. without justification, for contact and in circumstances where they To put matters into perspective, child arrangement orders were had rarely seen their grandchildren and that the cases had no merit introduced by the Children and Families Act 2014 which sought at all. Whilst on investigation that might have been true for some to replace the wording “contact and residence orders”. Child cases, it certainly is not so in the majority of cases and therefore arrangement orders decide where a child will live and who will have investigations have been made by many to look behind the intention rights to see them. The Court, in considering these matters, will take at the time. into account the welfare of the child. There are many practitioners who sincerely believe that the decision Regrettably and historically, the process for applications by for keeping the requirement for leave is a political one and based grandparents and other third parties differs entirely from the upon a lack of funds. Put simply, there are just not enough judges process undertaken by parents. Parents automatically have or judicial time or courts available to hear the number of cases that parental responsibility if their names appear on the birth certificate. currently come before the Court, to deal with applications for child Grandparents who make applications for child arrangement orders arrangement orders if grandparents have the automatic right to do not. As a result, grandparents have to take the additional step apply. The difficulty with these cases is that whilst the Government of seeking leave of the Court first before they can apply for a child and any predecessor Governments have looked at this issue and arrangement order. dismissed it, the fact now is that there are too many grandparents According to a briefing paper given to the House of Commons who currently have been severed from all contact with their dated 28 April 2016 under reference 07574, the intention behind grandchildren. requiring grandparents to apply for leave, is to act as a filter to sift Whilst it is the case that some families, where there is relationship out those applications that are clearly not in the grandchild’s best breakdown, can easily divide time between the wider family interest. Granting of leave does not automatically presume that the or continue to enlist the help of grandparents to look after the application for a child arrangement order will be successful. grandchildren (whilst the ex-daughter-in-law or ex-son-in-law In 2010 the Labour Government produced a green paper indicating works), there are many cases that demonstrate that there are that they wished to remove the requirement of grandparents’ emotional reasons that come into play which often sever such necessity to seek leave of the Court. The Family Justice Review relationships when there is a divorce or relationship breakdown. was constituted in March 2010 and was supported in the first There is substantive evidence that one or other of the parents

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may, for their own motivations and certainly not out of desire to divorce or relationship breakdown, grandparents can hook into protect the welfare of their children, unilaterally refuse to allow their applications and deal with contact at the same time. This the grandparents any further contact. By the time that informal does not cover the more regular position where one or other set of negotiations reach an end, there is often a huge gap in the time that grandparents is cut out of the equation and cannot be considered in the grandparents have last seen their grandchildren. By forcing an application by the parents themselves. grandparents to apply for leave first, and thereafter a full-blown When grandparents apply for leave, the Court will always consider application for a child arrangement order, time restrictions impact the child’s circumstances and will make an order where they such cases. consider whether it is better for the child than making no order at Accordingly, if a judge has to determine whether it is in the best all. The Court has to weigh up whether a continuing relationship interests of a grandchild, to see the grandparent, it might have been with the grandparent will have a negative impact on the rest of the more than a year since they last saw each other. Because of the family relationships. way in which the system works, many judges have stated that the There is no doubt that there has been huge change in family form grandparents should be denied any further contact because such and social structure over the last 20 to 30 years. Marriage rates a large amount of time has elapsed. There is a certain naivety in have slowly declined and cohabitation is increasing. Cohabiting the presumption that everyone is going to agree things readily and relationships are three times more likely to break down than easily and this has facilitated against many grandparents. marriages. The divorce rates are showing that at least two in three When the Court is looking at whether or not to grant leave married couples are divorcing and this is slowly moving to one out to a grandparent, the welfare of the child is not of paramount of two over the next year. Given those statistics it is very important consideration. If leave is granted then a child arrangement order that grandparents have a role to play. From research that has been can be applied for and at that stage the child’s welfare shall be carried out between 2001 and 2009, one in four families received the Court’s paramount consideration. The report in 2011, whilst some kind of childcare support from grandparents and almost all recognising the importance to children of a relationship with their families received some kind of financial support from them. Given grandparents, still felt that an application for leave was not an that more women are working than ever before, grandparents are overly burdensome procedure and should remain. They naively more readily being relied upon and appear to be the preferred choice stated that grandparents did not have a right to contact and stated of care above au pairs, mother’s helps, nannies, etc., as well as being that their research indicated that grandparents were unlikely to lose more financially viable in 2018. contact with a grandchild if they had a meaningful contact whilst It is also clear that in care cases, grandparents would be an excellent the parental relationship was still in being. This is certainly not the choice to take over the care of children where parents cannot, experience of the two million grandparents currently unable to see but they are not sufficiently involved. Research also shows that their grandchildren. grandparents in the care system are being involved far too late to be There are some exceptions to grandparents having to apply for leave. part of the choice made by the local authority. All of these issues These can be found under Section 10(5) of the Children’s Act 1989: have left thousands of grandparents feeling that they have been left ■ Any person with whom the child has lived for a period of at in the dark and totally undermined and unappreciated for what they least three years. Section 10(10) of the Children Act 1989 can do for their grandchildren. states this period need not be continuous, must not have Far from interfering, hundreds of grandparents that we have spoken begun more than five years before, or ended more than three to, far from making derogatory remarks, have emphasised that months before the making of the application. their role is to be supportive, to be silent in making any comments ■ Any person who: about the way their children are parenting, but also to be an ear for ■ has the consent of each of the persons named in the the grandchildren at a time when they are going through turmoil child arrangement order in force, relating to: with whom and disruption. Many grandparents have expressed to us that the child is to live; or when the child is to live with any when children are having to leave their homes, their school and person; everything is unfamiliar to them, they are their stability and provide ■ who has consent of each person in whose favour the order a comforting and solid relationship when all else around them is the was made in any case where there was an existing changing. order for care in force; Mediation is a system where the parties can mediate their difficulties ■ has the consent of a local authority in any case where the if they cannot agree amongst themselves. Again, upon investigation child is in the care of that local authority; mediation has been failing right across the family law system. ■ has parental responsibility for the child by virtue of Parties feel that the imposition of mediation is unhelpful and the provision under Section 12(2)(a); or mistrust that has been built up because of the delays, the inability ■ in any other case has the consent of each of those, if any, of most grandparents to understand how mediation works, and not who have parental responsibility for the child. knowing who they can trust to act as a mediator, has led to very few ■ When a Court considers an application for leave to apply taking up this choice. Some have described mediation as being too for a child arrangement order, the test which applies is that structured to provide a good outcome. the Court should have particular regard to the nature of the proposed application for the Section 8 Order, the Applicant’s It is for this reason that, last year, my firm set up a new entity known connection with the child or any risk that there might be of as a “successful outcomes procedure” whereby grandparents and that proposed application disrupting a child’s life to such an their children can sign up to six sessions in an informal structure, extent that he would be harmed by it. whereby we bring the parties together to achieve a shift in position. ■ Where the child is being looked after by a local authority: The parties are able to state their views in a non-confrontational (i) what are the authority’s plans for the child’s future; and manner with a structure that does not allow those views to be misinterpreted in an exceedingly sensitive scenario. In our system (ii) the wishes and feelings of the child’s parents. we make it clear that each side must allow the other to speak and The Government’s position appears to have repeatedly been that express their views without insults, name throwing, or aggression, when parents are applying for child arrangement orders in their in a safe environment with the grandchildren’s interests at the

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heart of all discussions. Sometimes we will refer the parties for seeing their grandchildren as a punishment for being involved in specific therapy, not limited to parenting plans only but also those proceedings. Grandparents are the innocent parties and have been that will take into account grandparents too. Sometimes the entire drawn in without understanding the implications of the kindness family must go into appropriate therapy to learn how to properly that they have shown financially. If grandparents are aware that communicate so that the grandchildren can benefit from their their continuing gifts could be considered to be a resource available relationship together. in financial proceedings, then perhaps they could class them in Having conducted research around the world in various jurisdictions, a different way so that they will not be criticised in the future. such as the USA, Spain and Australia, that do allow an automatic Further, in providing monies that are utilised to buy a home, if it right to grandparents to apply to the Court, there does not appear to is intended to be a loan, then a loan agreement should be drawn be a difficulty. at an early stage so that this is clear and unequivocal. So often in the midst of a matrimonial case, one or other of the parties will One of the issues facing judges when dealing with grandparents’ claim that the money was intended to be a loan, where it has always applications is how to divide the time adequately and sensibly been expressed, so far as the other party is concerned, as a gift. It between two parents who have split up, whilst at the same time is easy to see how these kinds of representations can impact the allocating time for the grandparents to have their own time with grandparents in a way that has never been intended. the grandchildren. The way in which the courts in the United States deal with this matter, is on a case-by-case basis, looking at This firm has been very much involved in lobbying Parliament the circumstances of each case, what time is available and what through the issue of a change in the law where grandparents are benefit the grandparents can bring to that equation. In the State of concerned. In relation to the issue of having an ongoing relationship California and Florida, they have managed repeatedly to divide the with their grandchildren, this firm strongly believes that there time and have not ever felt the need to impose the requirement of should be a change in the law. In order to assist in understanding grandparents applying for leave beforehand. They have indicated where those changes can easily be made, we have drafted an that the first preliminary hearing can easily filter out inappropriate amendment to the Children’s Act which we hope will be considered applications so that there is no loss of momentum to the grandparents carefully by Parliament and which we have named “The Grandchild concerned. This is equally so in all other countries that do not and Grandparent Relationship Act”. This is an Act, by way of require leave. amendment, to promote the grandchildren’s continuing involvement with their grandparents and to amend the provisions of the Children In any case where an application has been made for a child Act in so far as it relates to applications for child arrangement arrangement order there is a requirement for a Mediation Information orders. The simple amendments relate to a substitution in paragraph and Assessment Meeting (MIAMs). In the case of grandparents this 2(a) by inserting a 2(aa)(i) and we set out below the entirety of the inexorably adds to the delay in coming to Court. In recent reports amendments sought namely: the Government has suggested that children and young people should be given the opportunity to have their voices heard in cases “A court when considering an application under Section 8 by a grandparent is to presume unless the contrary is shown that are about them, where they wish. However, grandparents very that involvement of that grandparent in the life of the child rarely seek to involve the views of the grandchildren in an early concerned will further the child’s welfare. stage because they are only too aware that they want to protect the 2(aa)(ii) A court when considering an application under interests of their grandchildren and not cause further problems. Section 8 by a grandparent shall give sufficient weight to The eradication of Legal Aid for these cases means that many the child’s right to have a continuing relationship with their grandparents are not in a position to afford to apply to the Court grandparent when applying under Section 1(1) above in order and are not aware of other forms of dispute resolution that might be to embody the intention of Articles 3 and 6 of the United available to them. Nations Conventions on the rights of a child”. There is also a lack of discernible judicial continuity in grandparents’ 3 after subsection (6) insert: cases. This has meant that many different judges have expressed “(6A) In subsection (2AA) “grandparent” means grandparent different views in relation to the grandparent cases which gives of the child concerned; and for the purposes of that subsection, them a feeling of helplessness and leave many to abandon the entire a grandparent of the child concerned – application before any conclusion is reached. This also seems to fly (a) Is within this paragraph if that parent can be involved in in the face of the general proposition in family cases that judicial the child’s life in a way that does not put the child at risk continuity is desirable, if not essential. of suffering harm; and Whilst there appear to be parenting programmes for the parents to (b) Is to be treated as being within paragraph (a) unless learn how to improve their parenting, it is vital that more is done to there is some evidence before the court in the particular include the grandparents so that any difficulties can be ironed out proceedings to suggest that involvement of that grandparent in the child’s life would put the child at risk and such plans should not simply be the province of the parents of suffering harm whatever the form of the involvement”. alone. 2. Power of the Court to make section 8 orders Further, upon investigation there are many disputes that seem to (1) Section 10(4) of the Children Act 1989 (Poser of the Court involve the status of monies that have been provided by grandparents to make section 8 orders) is amended as follows: in their children’s divorce or relationship breakdown. It is essential now that far more publicity must be given to the fact that grandparents (2) After subsection 4(b) insert: should themselves give absolute clarity as to their intentions when “(c) any grandparent of the child who is not already giving money to their children, to avoid future problems. Is the entitled by virtue of section 10(5) or 10(5B) to apply for money intended to be a gift or a loan and if so, what are the terms for any section 8 order”. repayment? So often the status of monies provided by grandparents We hope that the Government will look again at the necessity of can draw them into a dispute as a party to the children’s proceedings eradicating the need to cause grandparents to apply for leave for all and this in turn can cause horrendous rifts within the family, and the the reasons that we have set out above. We believe that by making consequences being that the grandparents are then prevented from these amendments as set out above, this will bring us in line with the

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majority of other countries worldwide to ensure that grandchildren continue to have a meaningful relationship with their grandparents. Vanessa Lloyd Platt As set out in our amendments, the intention of articles 3 and 6 of the Lloyd Platt & Co. Third Floor, Elscot House United Nations Conventions on the rights of a child insist that there Arcadia Avenue should be a continuing relationship between grandchildren and their London N3 2JU grandparents. United Kingdom

The United Kingdom appears not to be following through that Tel: +44 208 343 2998 intention by the current state of the law and leaves grandparents Fax: +44 208 343 4950 Email: [email protected] isolated in the need to require leave, with the naïve approach of URL: www.divorcesolicitors.com successive governments, that grandparents do not need to be assisted by the legal system. It is our considered view, and that of many Vanessa Lloyd Platt is the proprietor of Lloyd Platt & Co., a niche matrimonial and criminal practice. practitioners, that something radical has to change to deal with the silent heartache of so many grandparents who feel that they are left She was born and educated in London and graduated from University College London with an LL.B. (Hons) in Law. without remedy and desperate to re-establish their relationship with their grandchildren, for the benefit of the grandchildren themselves. Her practice, Lloyd Platt & Co., opened in 1992, from which time its reputation and client base has rocketed. Research has clearly shown worldwide that grandparents’ provision Vanessa regularly appears as an expert contributor on all television of historical information in relation to the family, as well as the care and radio news channels and is the resident lawyer on “This Morning”. and financial support that they can bring to their grandchildren, She also acts as a freelance journalist. is vital to society. For so many to be severed off from providing Vanessa’s expertise is to take complex legal points and explain them this help at a time when so many grandchildren appear to be going in simplistic terms to members of the public. through mental health difficulties, distress and the rupturing of their In October 2013, she was voted Family Law Commentator of the Year families, seems almost bordering on the inhuman. and has subsequently won awards each year both individually and as part of a team of leading divorce firms. She has also appeared yearly in the Super Lawyer list.

Lloyd Platt & Co. is one of the UK’s leading niche family and divorce firms. Established in 1992, the firm offers a wide range of services in the divorce and matrimonial law practice areas. The firm regularly comments on high profile divorce cases, as well as the latest industry developments for media around the world. The firm is at the forefront of changes in the market, offering innovative and unique divorce solutions to meet clients’ ever changing needs, and staying one step ahead of the latest industry evolutions. All of the fee earners offer different specialisation within the divorce and matrimonial field. Mediation is promoted as well as successful outcome meetings for grandparents. The firm specialises in children disputes, divorce, cohabitation and financial settlements, particularly in the high-net-worth arena, and has been involved in several ground-breaking cases. The firm worked closely with the Blue Cross Animal Charity to create the world’s first Pet-Nuptial Agreement, a contractual deed that specifies how pets can be dealt with generally on the break-up of a relationship and which is utilised worldwide.

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Australia Max Meyer

Pearson Emerson Meyer Family Lawyers Louise Carter

a hearing date within a month; if one party applies, it will be 1 Divorce approximately six weeks. If a respondent is resident overseas, that time is likely to double. Service of the Application must be personal 1.1 What are the grounds of jurisdiction for divorce unless the Court gives leave. proceedings? For example, residence, nationality, The Court may deal with the Application for Divorce in open Court, domicile, etc.? or in Chambers. Once the Divorce Order is made it comes into effect after one month. A party can initiate divorce proceedings if, at the date on which the Application for Divorce is filed, either party to the marriage is (section 39(3), Family Law Act 1975 (FLA)): 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and ■ an Australian citizen; finances. ■ domiciled in Australia; or ■ ordinarily resident in Australia, and has been resident for one Yes. However, once a Divorce Order has been made, parties have year immediately preceding that date. one year from the date it comes into effect to apply for property When determining whether a person is domiciled in Australia, the settlement, or spouse maintenance orders. There is no such time Court will look at the person’s domicile of origin or domicile of limit in relation to parenting matters. choice (domicile of dependence applies now only to minors). When determining whether a party is “ordinarily resident” in 1.6 Are foreign divorces recognised in your jurisdiction? Australia, the Court will look at a party’s voluntary place of abode which is a question of fact and includes where a party is “habitually Australia recognises a foreign divorce or annulment of marriage if, resident”. at the date the Divorce Order is made in a foreign country, either or one of the parties had a sufficient connection with the foreign 1.2 What are the grounds for a divorce? For example, is jurisdiction. This would include if either one or both parties were there a required period of separation, can the parties resident of the foreign jurisdiction for at least one year prior to have an uncontested divorce? the date of the divorce, or if they were a national of the overseas jurisdiction (s 104(3) of the FLA). There is only one ground of divorce in Australia, and that is that Recognition is denied if it is contrary to public policy or if, under the marriage has broken down “irretrievably” (s 48(1) of the FLA), the common law rules of private international law, a party to the meaning living separately and apart for at least 12 months. marriage had been denied natural justice.

1.3 In the case of an uncontested divorce, do the parties 1.7 Does your jurisdiction allow separation or nullity need to attend court? proceedings?

A party may file a sole Application for Divorce or a joint Application Australian Courts allow nullity proceedings, where it is established for Divorce (in circumstances where both parties are seeking a that the marriage is “void”. A marriage is void if one of the following divorce). Where an Application for Divorce is filed jointly, neither applies: party needs to attend Court. Parties are required to attend Court ■ It is bigamous. where there is a child of the marriage under 18, and a party has filed ■ The parties are too closely related. a sole Application. Where one party contests the Application, the ■ It was not a proper marriage ceremony in accordance with the parties need to attend Court. Marriage Act. ■ The consent of either party was not a real consent by reason of: 1.4 What is the procedure and timescale for a divorce? ■ fraud; ■ mistake as to the identity of the other party or the nature of Either party, or both jointly, may file a divorce Application. With a the ceremony, or mental incapacity; or joint Application, as service is not required, the Court will appoint ■ the party was too young to marry.

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■ the Court will also look at contributions made by a party to 1.8 Can divorce proceedings be stayed if there are the marriage, towards the welfare of the family (including proceedings in another country? the parties to the marriage and any children to the marriage). These contributions include any contribution made as Yes. Australian Courts may stay proceedings in favour of “homemaker” or parent; and foreign proceedings in circumstances where the Australian ■ the effect of any proposed order on the earning of Court is a “clearly inappropriate forum” and to continue the either party. Australian proceedings would be vexatious or oppressive. This is Once the Court has considered the points above, the Court will then a particularly difficult threshold to meet. The focus of the Court look at the factors contained at s 75(2) as to whether there are any when determining the appropriate forum, is to focus attention prospective factors which need to be taken into account. The factors upon the “inappropriateness” of the Australian Court, and not the outlined in s 75(2), include, but are not limited to the following: Australia comparative appropriateness of the suggested foreign Court. ■ each party’s future earning capacity; ■ each party’s financial commitments; 2 Finances on Divorce ■ the duration of the marriage and the extent to which it impacted on the earning capacity of either party; ■ the parenting responsibilities of either party; and 2.1 What financial orders can the court make on divorce? ■ whether either party has entered into a new relationship, and the financial circumstances of that relationship. Following divorce, or separation, the Court can make a variety of financial orders. The general powers of the Court are set out in s 80 of the FLA. These powers include: 2.4 Is the position different between capital and maintenance orders? ■ ordering a party to make an interim property settlement (prior to a final hearing); Yes. S 72 of the FLA provides that a party to a marriage is liable to ■ an order that a party provide a lump sum for the other party’s legal costs; maintain the other party if, and only if, the other party is unable to support him or herself adequately, and then only if the other party is ■ an order that a necessary Deed or instrument be executed; reasonably able to do so. ■ spouse maintenance orders (including but not limited to ongoing cash payments, lump sum payments, non-ongoing The Court can make orders for periodic payments or for a lump sum. payments for expenses such as mortgage repayments); Spouse maintenance can be ordered on an interim or final basis. ■ injunctions for the personal protection of a party to the marriage; 2.5 If a couple agrees on financial matters, do they need ■ injunctions restraining a party to the marriage from entering to have a court order and attend court? or remaining in the matrimonial home; and ■ injunctions in relation to the property of a party to a marriage No. However, if they do not record their agreement in one of the where it appears to the Court to be just or convenient. two methods outlined below, not only are there obvious problems of enforceability but they cannot avail themselves of the revenue exemptions that are a consequence of agreement on financial matters 2.2 Do matrimonial regimes exist and do they need to be recorded by order or Binding Financial Agreement. addressed by the court on divorce? Is there a default regime? Obtaining a court order may be by agreement and agreed orders and an application for their approval are lodged with the Family Court Matrimonial regimes do not exist in Australia, and there is no and dealt with in chambers. default regime in Australia. A Binding Financial Agreement is purely between the parties but attended by formalities discussed later, without recourse to the 2.3 How does the court decide what orders to make? Court for any purpose. What factors are taken into account? 2.6 How long can spousal maintenance orders last and The Court considers a variety of factors when deciding how to are such orders commonplace? divide assets. The key sections of the FLA are ss 79 and 75(2). The Courts are also heavily guided by case law. It is common for the Court to order interim maintenance, until the The Court will not make an order dividing property of the party, time of final hearing. It is less common for maintenance orders to unless it is satisfied that, in all of the circumstances, it is just and be made on a final basis. equitable to make the order (s 79(2)). Australian Courts must make such orders as will finally determine If the Court is satisfied it is just and equitable, the Court will then the financial relationship between the parties, so far as practicable (s take into account the following factors (s 79(4)): 81 of the FLA). Please also see question 2.4. ■ financial contributions made by or on behalf of a party to the marriage, towards the acquisition, conservation or 2.7 Is the concept of matrimonial property recognised in improvement of any of the property of the parties. These your jurisdiction? contributions can be direct or indirect; ■ non-financial contributions made by or on behalf of the Under Australian family law, there is no distinction between party to a marriage, towards the acquisition, conservation or property which was acquired during the marriage (matrimonial improvement of property of the parties. These contributions property) or property which may have been acquired prior to the can be direct or indirect; marriage, or following separation.

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subsequently made into or registered as court orders or financial 2.8 Do the courts treat foreign nationals differently on agreements. If agreements are reached in the form of a Binding divorce, if so, what are the rules on applicable law? Financial Agreement, then their status will be governed by the Can the court make orders applying foreign law rather legislation concerning those agreements. than the law of the jurisdiction? The Family Court refers most cases to court-sponsored mediation No. Australian Courts do not treat foreign nationals differently on during the course of property proceedings. Recently, however, the divorce. Australian Courts will apply only Australian law. Court has referred parties to attend private mediation or arbitration, as opposed to court-sponsored mediation, in an attempt to ease the burden on its financial resources. 2.9 How is the matrimonial home treated on divorce? Australia It is simplistic to say that the home is simply part of the property 3 Marital Agreements the ownership of which is to be determined by the Court in any application for property settlement. While that is true, particular 3.1 Are marital agreements (pre and post marriage) issues may arise in the context of the Court’s obligation to make an enforceable? Is the position the same if the agreement order that is just and equitable. A spouse with the care of children is a foreign agreement? may seek strenuously to retain the home while sacrificing other entitlements such as pension or superannuation entitlements. It is Pre- and post-nuptial agreements are called financial agreements. not uncommon for one party to seek interim relief to remain in sole Parties may enter into binding financial agreements made before occupation of the home pending final orders. marriage, during marriage, or after a Divorce Order is made. The effect of financial agreements is to exclude the jurisdiction of 2.10 Is the concept of “trusts” recognised in your the Family Court. These agreements are binding only if all statutory jurisdiction? requirements are complied with. The relevant statutory provisions are set out in the FLA: Trusts are recognised under Australian law and by the Family Court. ■ Ss 90B to 90D, which set out the basic requirements for a The Court has determined that the property of such a Trust can be binding agreement, together with further requirements, set treated as the property of a party if: out in ss 90DA, DB, and E to G. ■ the Trust is a sham structure; or ■ S 90K, which sets out the circumstances in which the Court ■ the Trust is controlled by that party either de facto or de jure. can set aside a financial agreement. Otherwise, if a party is the discretionary object of a Trust, that ■ S 90KA, which sets out the criteria for the validity, party’s interest will be treated as a financial resource and not as enforceability and effect of financial agreements. property of the party. Agreements made in a foreign country are enforceable only if they comply with the statutory requirements outlined in the FLA. It is not uncommon, where parties own properties in multiple countries, 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the for Australian lawyers to work with foreign lawyers to prepare an grounds? agreement that satisfies the statutory requirements under Australian law, as well as the requirements in the foreign jurisdiction. It is important to distinguish what is meant by “a foreign divorce” because, as above, divorce is a proceeding distinct from financial 3.2 Can marital agreements cover a spouse’s financial claims in Australia. If final orders are made for alteration of claims on divorce, e.g. for maintenance or property interests in a foreign jurisdiction, and an application is compensation, or are they limited to the election of brought before an Australian court upon the same subject matter, the matrimonial property regime? then if there is an identity of cause, res judicata or estoppel arguments will preclude any such application and forum conveniens Yes, financial agreements can deal with: arguments may also come into play. ■ property interests; If there are proceedings concluded in a foreign court and the issues ■ spouse maintenance; are not identical, the Australian court has accepted that it will have ■ superannuation or pensions; and jurisdiction to deal with aspects of the property proceedings not ■ matters incidental or ancillary to the preceding three matters. dealt with by the foreign court. Financial agreements can be entered into by parties prior to marriage, If a Divorce Order simpliciter has been made in a foreign court and during marriage, or after separation. Equally financial agreements then absent arguments as to forum conveniens and arguments as to can be entered into between de facto partners. jurisdiction in the first place, an Australian court can entertain an application for financial claims. 3.3 What are the procedural requirements for a marital agreement to be enforceable on divorce? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, There are various procedural requirements which must be met mediation, arbitration? before a financial agreement is enforceable. These requirements are set out in s 90G of the FLA, and are summarised below: There is a plethora of dispute resolution methods available to parties ■ The agreement must be in writing. to resolve financial issues on divorce. Mediation, collaborative law and arbitration are all available in Australia. However, ■ The agreement must be signed by all parties. agreements reached by these methods are not legally binding, unless

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■ Before signing the agreement, each spouse party was provided ■ Tasmania, by means of the Relationships Act 2003, instituted with independent legal advice by an Australian lawyer about a registry system intending that partners sign a certificate the: witnessed by a state official. The certificate is then sent to ■ effect of the agreement on the rights of that party; and the Registrar of Births, Deaths & Marriages and is known as a Deed of Relationship. ■ advantages and disadvantages of that party in making the agreement. ■ In the Australian Capital Territory, the Civil Partnership Act 2008 permits the registration by couples, of whatever gender, ■ Each party’s legal practitioner provides a signed statement of of their civil partnership. This confers automatic legal advice. recognition of being in a domestic partnership under the law ■ Each spouse party receives a copy of the statement (but not of the Australian Capital Territory. Couples must, however, the advice) given to the other. live in the Territory. Australia ■ In Victoria, the Relationships Act 2008 also had, as its main 4 Cohabitation and the Unmarried Family purpose, overcoming of the need to prove the existence of the relationship. ■ In New South Wales, the Relationships Register Act 2010 4.1 Do cohabitees, which do not have children, have (NSW) permits couples to register their relationship and financial claims if the couple separate? What are the grants formal recognition to couples who are unwilling to grounds to make a financial claim? marry. ■ In South Australia, the Relationships Register Act 2017 The FLA defines the relationship of cohabitation, referred to as a (SA) permits adults who are in a relationship as a couple, de facto relationship. A person is in a de facto relationship with irrespective of their sex or gender identity, to register their another person if: relationship. ■ The persons are not legally married to each other. ■ In Queensland, the Civil Partnerships Act 2011 (QLD) provides for couples to register their relationship. Couples ■ The persons are not related by family. can obtain registration by having a civil partnership ■ Having regard to all the circumstances of their relationship, declaration ceremony, though this is not mandatory. the persons have a relationship as a couple living together on In order for couples to bring themselves within the ambit of the FLA a genuine domestic basis. as de facto partners, they must prove the existence of the de facto The Court will take into account the following factors when relationship. Registration of a relationship is not determinative of determining whether the persons have a relationship as a couple: the existence of the relationship, but is a very significant factor. ■ The duration of the relationship. ■ The degree of financial dependence or interdependence, and 4.4 Are same-sex couples permitted to marry or enter any arrangements for financial support, between them. other formal relationships in your jurisdiction? ■ The degree of mutual commitment to a shared life. ■ The nature and extent of their common residence. Australian legislation was amended in 2017 to allow same-sex ■ Whether a sexual relationship exists. couples to marry. Same-sex couples are also permitted to enter into ■ The ownership, use and acquisition of their property. de facto relationships, which are recognised by the Family Court. In ■ Whether the relationship is or was registered under the the majority of Australian States, same-sex couples can register their prescribed law of a state or territory of Australia as a de facto relationship. It is discussed in more detail at question 4.3. prescribed kind of relationship. ■ The care and support of children. 5 Child Maintenance ■ The reputation and public aspects of the relationship. A financial application may be brought provided any of the following are applicable: 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? ■ The period of the relationship is at least two years. ■ There is a child of the relationship. Applications for child support can be brought by a child’s parent or ■ The applicant has made substantial contributions and a failure non-parent carer (such as a grandparent or legal guardian). These to make an order would result in serious injustice. claims are not brought on behalf of the child, but are brought on However, if the relationship is registered, the above qualifications behalf of the parent or non-parent carer to cover the child’s expenses. do not need to be fulfilled. In the vast majority of cases, child support is determined by an administrative assessment upon application to the Child Support 4.2 What financial orders can a cohabitee obtain? Agency (CSA). This is discussed in more detail at question 5.2. However, there are alternative methods in which child support can If the Court is satisfied that a de facto relationship exists, a party be dealt with in Australia, for example: may apply for any of the financial orders available to a married ■ A party can make an application in Court for an order for couple (or formerly married couple). child support as part of the determination of other financial issues. ■ A party may enter into a formal agreement in relation to the 4.3 Is there a formal partnership status for cohabitants financial support for his/her child. Such agreements can (for example, civil partnerships, PACS)? include child support to be paid by a lump sum, ongoing payments, by the transfer of assets, or by non-ongoing Most Australian states have in place legislation recognising the payments for expenses such as school fees and health status of de facto relationships, for example: insurance.

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■ A court may make orders for the payment of lump sum child support in circumstances where there may be difficulties in 5.4 Can capital or property orders be made to or for the enforcing periodic child support. benefit of a child? ■ A court may order maintenance for an adult child – see question 5.5 below. S 79(1)(d) of the FLA empowers the Court to make an order requiring either or both parties to the marriage or a to make, for the benefit of either or both parties to the marriage or 5.2 How is child maintenance calculated and is it a child of the marriage, a settlement or transfer of property as the administered by the court or an agency? Court determines. It is very rarely used.

In most instances, provision of financial support for children is Australia determined by a child support assessment rather than an order of 5.5 Can a child make a financial claim directly against a court for child maintenance. Courts have become increasingly their parents? reluctant to make orders departing from a child support assessment prepared by the CSA. A child, either/both parents, or any other person concerned with The CSA was formed to assist parents to take responsibility for the the care, welfare and development of the child, can apply to a financial support of their children. A formula is used by the CSA court under s 66D(1) of the FLA for an “adult child maintenance to calculate the amount of child support required on a case-by-case order”. The child must be unable to support him or herself due to basis. The formula is calculated by looking at the parents’ incomes, engagement in tertiary education or due to disability. The Court the percentage of time the child is in their respective care and the takes into account the: individual costs associated with the child. ■ Needs of the child. The CSA has an online estimator on its website to assist parties to ■ Financial circumstances of the child. calculate the support payable. ■ Capacities of the parent/parents to provide support. Parties can object to decisions made by the CSA pursuant to the Child Support (Assessment) Act. Avenues of review are both 6 Children – Parental Responsibility and administrative and judicial. Custody

5.3 For how long is a parent required to pay child maintenance or provide financial support for their 6.1 Explain what rights of custody both parents have children? For example, can a child seek maintenance in your jurisdiction whether (a) married, or (b) during university? unmarried?

The duration of a child maintenance order or child support Parents, regardless of whether they are married or unmarried, arrangement depends upon the type of order, agreement or are not provided any “rights” in terms of custody under the FLA. assessment which is in place. Instead, the FLA focuses on the rights of the child, including the right to know and be cared for by both parents and to spend time A child maintenance order from the Court can extend beyond the and communicate, on a regular basis, with each parent, provided age of 18 years in certain circumstances, as discussed at question it is safe to do so, as well as the right to enjoy his/her culture and, 5.5. in particular, Aboriginal and Torres Strait Islander culture (where Most child support arrangements are assessments of the CSA. applicable). The paramount consideration in protecting these rights In addition, the Child Support (Assessment) Act provides that a is the best interests of a child. As regards to parents (regardless of child support assessment from the agency, and a child support marital status), there is instead a focus on responsibilities to children. agreement entered into pursuant to the Child Support (Assessment) Until any court orders to the contrary, both parents have parental Act, ceases to have effect upon the happening of a “terminating responsibility for their children. There is a presumption that it is event”. A terminating event occurs if: in the best interests of the children for parents to have equal shared ■ The child dies. parental responsibility. This presumption does not apply if there ■ The child ceases to be an eligible child under the regulations. is evidence of abuse or domestic violence (or a risk of abuse or ■ The child reaches 18 years of age. domestic violence) or it is found not in the best interests of the child. ■ The child is adopted. ■ The child becomes a member of a couple. 6.2 At what age are children considered adults by the court? ■ The child is not present in Australia, nor is the child an Australia citizen, nor is the child ordinarily resident in Australia. Children are considered adults once they reach the age of 18. ■ Where there are two registrable child support liabilities in relation to the same child and payer. 6.3 What is the duration of children orders (up to the age Parties who have entered into their own private agreement in relation of 16 or 18 or otherwise)? to child support may also specify further “terminating events” which may limit or extend the duration of the child maintenance Parenting orders apply until a child turns 18 years of age. arrangement event further. For example, the agreement may stipulate that the child maintenance agreement ceases to have effect if the child spends less than a certain amount of time with that parent.

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“Substantial and significant time” is explained in the FLA to include: 6.4 What orders can the court make in relation to ■ time with the “non-live with” parent on weekends, holidays children? Does the court automatically make orders in and weekdays; relation to child arrangements in the event of divorce? ■ time that allows each parent to be involved in the child’s daily routine; and The Court does not automatically make any orders in relation to children. Until any court orders to the contrary, both parents have ■ occasions and events of particular significance both to the children and to the parents. joint parental responsibility for their children. The paramount consideration in any decision concerning children is their welfare As to what is reasonably practicable, the Court looks at the distance or best interests. between the parents’ homes, the parents’ actual and future capacity to facilitate the orders, their ability to communicate, the impact of The Court has the power to make any order that would be considered Australia the proposed arrangement on the children and other matters. a parenting order. Examples of types of parenting orders include any change to the name of a child; orders providing for which parent has certain responsibilities for the child, orders providing for the child 6.6 Without court orders, what can parents do to live with one parent and spend time with the other, allowing for a unilaterally? For example, can they take a child passport application to be made; or nominating where a child will go abroad? to school. Generally, the Court will not make an order requiring that a child is or is not brought up in a particular religious faith. Where there are no parenting orders in place, there is a presumption each parent has parental responsibility for a child. Parental responsibility can thus be exercised solely or jointly by either party. 6.5 What factors does the court consider when making In effect, this means that one party can make decisions about a child orders in relation to children? without consulting the other. If there are neither current proceedings nor orders, a party is able to take a child abroad, without the consent The paramount factor a court will consider when making orders in of the other party. However, where one party continues to make relation to children is their best interests. There are also a number unilateral decisions in relation to the child’s care, without consulting of primary and additional considerations the Court will take into the other party (for example, taking the child abroad, relocating account. the child, etc.), the other party would have recourse to the Court The primary considerations are: preventing that party from doing so. ■ the benefit to the child having a meaningful relationship with both parents; and 6.7 Is there a presumption of an equal division of time ■ the need to protect the child from harm. Great weight is between separating or divorcing parents? placed on this consideration. Additional considerations include: There is no presumption that children will spend equal time with ■ any views expressed by the child (taking into account their each parent, upon their separation or divorce, however, there is a level of maturity); presumption under the FLA that it is in the child’s best interests ■ the nature of the child’s relationship with each parent and that his/her parents have equal shared parental responsibility for others; the children. Unless a party is able to rebut that presumption (by ■ the extent to which a parent has participated in decision- evidence of family violence or child abuse) an order for equal making and taken opportunities to spend time with and shared parental responsibility will be made. In those circumstances communicate with the child; the Court must consider making an order for the child to spend ■ levels of financial support provided; equal time with each parent. ■ the likely impacts on the child of any change in circumstances, particularly if they are to be separated from a person with 6.8 Are unmarried parents treated in the same way as whom they have been living. The Court is particularly loathe married parents when the court makes orders on to make orders which separate siblings; separation or divorce? ■ the capacity of each parent to provide for the needs of the child; Unmarried parents are treated the same way as married parents ■ the maturity, sex, lifestyle and background of the child; when making parenting orders. ■ whether the child identifies with Aboriginal or Torres Strait Islander culture; 6.9 Is a welfare report prepared by an independent ■ any family violence or family violence order; and professional or is the decision taken by the Judge ■ the need to make an order least likely to lead to further alone? If so, does the child meet the Judge? litigation. The above factors inform all parenting orders. In particular, the In the vast majority of parenting matters, the Court will have a Court will consider the above when making orders for parental “Family Report” (if it is prepared by a court-sponsored “family responsibility. If an order is made for equal shared (joint) parental consultant”) or “Single Expert Report” (if it is prepared by a responsibility, the Court must consider whether the child should live specialist psychologist or psychiatrist and paid for by the parties). with each parent on an equal time basis. If this is not reasonably These reports consider the framework set out under the FLA, as well practicable, the Court must consider whether the child should live as any other issues the writer is directed to and the writer will meet with one parent but spend substantial and significant time with the with the parents, children and any other relevant person. It is usual other. that the writers of these reports are cross-examined at trial. Only in very rare cases will the child meet the Judge.

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It is a criminal offence punishable by up to three years’ imprisonment 6.10 Is there separate representation for children in your for a person to take a child outside of Australia if it is contrary to jurisdiction? an order preventing or limiting overseas travel, or where there are pending court proceedings for parenting orders. It is not, however, In some cases, the Court can appoint an Independent Children’s a criminal offence to take a child outside of Australia where the Lawyer (ICL) to represent the child. The ICL is a qualified lawyer travelling parent has written permission from all parties to the who assists the Court when deciding what arrangements are in relevant court proceedings. the best interests of the child. An ICL is usually appointed in the If one parent has concerns there is a risk the other may move to following cases: another country with the child, an application can be made for that ■ Where the parties apply to the Court for an ICL. child to be put on an airport watchlist which means they will not be Australia ■ Where there are allegations of abuse or neglect. able to leave Australia. ■ Where there is a high level of conflict. ■ Where there are allegations of family violence. 7.2 If the court is making a decision on relocation of a ■ Where there are serious mental health issues in relation to child abroad, what factors are taken into account? either of the parents or the child. ■ Where there are difficult and complex issues involved in the As well as the primary and additional considerations set out under matter. the FLA, case law also suggests that in relocation matters, the Court Depending on the child’s age, the ICL may sometimes meet with also looks at the following to determine whether relocation abroad the child. An ICL is obliged to consider the views of the child, but is in the child’s best interests: ultimately the ICL must provide the Court with his/her own view ■ existence of family networks, or lack thereof, in the place of about what arrangements would be in the child’s best interests. relocation; ■ history of the residence of the parents and the child; 6.11 What methods of dispute resolution are available to ■ ability of the relocating parent to obtain employment; resolve disputes relating to children? ■ financial considerations; and ■ the child’s wishes and whether or not the relocating parent’s There are a variety of ways in which parties can resolve disputes reasons for leaving are held in good faith or constitute an relating to parenting matters. A prerequisite before parties can file attempt to undermine the relationship between the child and an application for parenting orders in the Family Court, is that they the other parent. have attended “Family Dispute Resolution” with a registered Family Dispute Resolution Practitioner. Specific exemptions apply to this 7.3 In practice, how rare is it for the custodial parent to be requirement, for instance, where there are allegations of family allowed to relocate internationally/interstate? violence which would create difficulties for the parties attending the Family Dispute Resolution session together. Courts have repeatedly said that freedom of movement is subordinate In addition to the compulsory Family Dispute Resolution, a to the best interests of children (see, for example, U v U [2002] preliminary step in parenting proceedings is to order parties to HCA 36). The FLA also provides that a primary consideration when attend a “Child Dispute Conference” with a “Family Consultant”. A making parenting orders is the consideration of the benefit to the Family Consultant is a Court counsellor, whose role is to interview child of a meaningful relationship with each parent. This is difficult both parents, and sometimes the child/children, to ascertain the to achieve where one party relocates. main issues in dispute, and potentially help parties reach agreement. The reasons for a parent wishing to relocate with a child are only one The Family Consultant will provide a memorandum to the matter and should not be dealt with as a separate issue. The Judge Court to inform the Judge of the main issues in dispute, and any must identify the competing proposals and evaluate their advantages recommendations of the Family Consultant. and disadvantages, relative to the best interests of the child. In addition to the methods noted above, parties to disputes relating The leading case on this issue is MRR v GR (2010) 240 CLR 461. to children can utilise the dispute resolution methods noted at The Court in MRR v GR stated that the legislation “obliges the court question 2.12. to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and the 7 Children – International Aspects question of whether it is reasonably practicable that the child spend equal time with each of them”. However, the best interests of the children are not the sole consideration. 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? 7.4 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the The Court puts no restrictions on where a parent may reside, Hague Convention? however, if a parent causes the child to live interstate or overseas without the consent of the other parent or a court order permitting Australia is a party to the Hague Convention. Article 5(a) of the this, the other parent can file an application with the Court seeking Convention refers to the term “rights of custody”. Australia has that the child be returned. The Court will then consider the abandoned these terms, however, s 111B(4) of the FLA was enacted best interests of the child in light of the primary and additional to resolve doubts about the implications of those changes for considerations set out under the FLA when deciding whether to Convention purposes. make such an order. Because of delays associated with the system The applicant under a Hague Child Abduction Convention case it can be difficult to have an application heard on a final basis for must establish that the child was habitually resident in one Hague some time.

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contracting state and then wrongfully removed to, or retained in, A recent announcement has indicated that funding will be provided a different contracting state. Therefore, determination of habitual to prevent perpetrators of family violence cross-examining their residence is central. victims in Court. This currently occurs when an alleged (or convicted) Bilateral treaties have also been established between Australia and perpetrator is self-represented in their family law proceedings. Lebanon, and Australia and Egypt, both non-convention countries. These treaties facilitate dialogue between each government in the 8.2 What are some of the areas of family law which you hope to resolve abduction cases. This can be a very lengthy process. think should be looked into in your jurisdiction?

There is a consensus that the Family Court system is underfunded. 8 Overview As a consequence delays are unacceptably long. Australia There is a deal of tension at the moment at first instance and 8.1 In your view, what are the significant developments in appellate levels in financial matters. The tension is between the family law in your jurisdiction in the last two years? exercise of judicial discretion that, while not being unfettered, is still wide, and the use that may be made by Courts of decisions in Currently, family law matters are heard in Australia by the Family similar fact circumstances in other cases. That tension may, in the Court of Australia and the Federal Circuit Court of Australia. The appropriate case, still need to be resolved by the highest appellate Federal Government has recently announced these Courts are to be Court, the High Court of Australia. amalgamated. The stated aim is to reduce delays in the family law In the opinion of the authors, the law has not kept pace with the system. The authors do not understand how that could achieve its community’s greater understanding of the impact of family violence aim. in financial matters, and the harm occasioned to its victims. In In March 2017, a parliamentary inquiry was commenced with the the opinion of the authors the current approach is rigid and purpose of looking into ways that the Australian family law system unsophisticated. can better support and protect people affected by family violence. It is expected that the inquiry will also attempt to address the significant delays faced by parties involved in the Family Court system. This will be the first review of the family law system since the commencement of the FLA.

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Max Meyer Louise Carter Pearson Emerson Meyer Family Lawyers Pearson Emerson Meyer Family Lawyers Level 15, 175 Liverpool Street Level 15, 175 Liverpool Street Sydney NSW 2000 Sydney NSW 2000 Australia Australia

Tel: +61 2 8202 9202 Tel: +61 2 8202 9202 Email: [email protected] Email: [email protected] URL: www.pemfamilylaw.com URL: www.pemfamilylaw.com

Australia Max Meyer was one of the first lawyers accredited as a Family Law Louise Carter was admitted to practise as a Solicitor of the Supreme Specialist in New South Wales. Court of New South Wales in February 2014. She holds a Bachelor of Laws (Honours) and a Bachelor of Arts from Macquarie University. He was admitted to practice in 1971. He was the partner in charge of the Family Law Group at Marshall Marks Kennedy for 11 years. Prior to specialising in family law, Louise worked as a Judge’s He then founded the firm of Meyer Pigdon, then later Meyer Partners associate at the Family Court and as a solicitor at an international Family Lawyers. He is now Special Counsel at Pearson Emerson commercial law firm in Sydney. Meyer Family Lawyers. Louise is responsible for a wide range of family law issues for Max is a member of the New South Wales Law Society and the Family our clients including separation and divorce, parenting disputes Law Section of the Law Council of Australia. He was one of the first and arrangements, property settlements, and de facto relationship two lawyers practising in New South Wales to have been elected as a breakdowns. Fellow of the elite International Academy of Family Lawyers. Max is the first elected President of the newly formed Asia Pacific Chapter of the International Academy of Family Lawyers and has been appointed to the IAFL Nominating Committee. He often speaks on family law issues, including at international conferences. He has acted in major cases including international financial disputes on marital breakdown, and other disputes for high-profile and high-net- worth professional and business clients. A number of his cases have established legal precedent.

Pearson Emerson Meyer Family Lawyers is a family law firm specialising in all financial matters dealing with marriage or other relationship breakdowns including de facto and same-sex relationships, and issues relating to children. We also advise on and prepare prenuptial and financial agreements. Our lawyers will use their experience, commitment, understanding and communication skills to help you achieve your objectives. We are based in Sydney, Australia but have assisted clients whose relationships and financial affairs transcend national boundaries, many with complex financial affairs. Three of our partners are Fellows of the International Academy of Family Lawyers (formerly International Academy of Matrimonial Lawyers). Our international connections allow us to help you. Our aim is to help you resolve issues resulting from relationships quickly, and cost effectively. We work with you to reach your objectives. Pearson Emerson Meyer has consistently been recognised as a First Tier family law firm in New South Wales and Australia. We have 10 lawyers accredited as family law specialists by the Law Society of New South Wales at our firm. Their expertise enables us to focus on what we do best: resolve complex family law matters. The contents of this chapter are not legal advice and should not be used as such. Legal practitioners and parties should form their own views as to the matters contained in the Family Law Act 1975 (Cth).

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Canada – Ontario Sarah Boulby

Boulby Weinberg LLP Oren Weinberg

1 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 whether the proceedings? For example, residence, nationality, Divorce application is contested and whether other relief aside from domicile, etc.? 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 where An Ontario court has jurisdiction where either spouse has been the only claim is for a divorce. This application can be jointly ordinarily resident in the province for at least one year immediately prepared and submitted by the parties. If other relief is sought before commencing the proceeding. The residency requirement (such as property division, support, custody/access), a more detailed is a question of fact. The court considers such factors as whether application will be required along with additional documents. the spouse resided in the province as a customary mode of life The application must then be issued by the court. The application as opposed to merely casually or occasionally, and whether the will be served on the other party, who has 30 days to respond. The spouse had the intention of making a home in that province for an other party may make claims for other relief in their answer. indefinite period. This is not dependent on citizenship, domicile or immigration status. The other spouse may argue another jurisdiction The next steps will depend on whether the other party files presents a more convenient forum. responding material and whether claims for additional relief have been made. If they do not file any responding material, and the If neither spouse resides in Canada at the time of the application and only claim being made is for a divorce, a divorce may be granted each of the spouses is residing in a foreign jurisdiction that does not within months. If other claims are made, the next step may be an recognize the validity of their marriage, the federal Civil Marriages uncontested trial without an oral hearing, which can occur relatively Act provides that a court in the province where the spouses were quickly. married may grant a divorce. If the other party does file responding material the next step is for the parties to schedule a case conference with the court, which is a 1.2 What are the grounds for a divorce? For example, is relatively informal court appearance designed to allow both parties there a required period of separation, can the parties to appear before a judge and explore the issues, discuss possible have an uncontested divorce? settlements and determine the next steps in the case. If the matter does not resolve at the case conference, either party will be free A court may grant a divorce where there has been a breakdown in to bring a motion on any issues in the case and the matter will the marriage. A breakdown in the marriage can be established only eventually proceed to trial, following further court conferences. in the following circumstances: ■ 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 ■ the other spouse has committed adultery; or finances. ■ 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 1.3 In the case of an uncontested divorce, do the parties children. need to attend court? 1.6 Are foreign divorces recognised in your jurisdiction? Parties need not attend court to obtain a divorce. Once the 30 days for a response to the Divorce application has lapsed, the spouse Canada will recognize a foreign divorce so long as the divorce is valid applying for the divorce can proceed to file written documentation in the other country and one or both of the spouses was ordinarily for a Divorce Order. resident in the other country for at least a year immediately before applying for a divorce.

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1.7 Does your jurisdiction allow separation or nullity 2.4 Is the position different between capital and proceedings? maintenance orders?

A nullity, or annulment of the marriage can be sought in Maintenance orders in Canada are termed spousal support orders. circumstances where one of the requirements for the validity of They differ from property orders. However, a court may consider the marriage does not exist or where there are allegations of fraud. the amount a party receives by way of an equalization payment Some of the requirements for a valid marriage include age, capacity when deciding on the issue of support. to consent, and solemnization.

2.5 If a couple agrees on financial matters, do they need 1.8 Can divorce proceedings be stayed if there are to have a court order and attend court? proceedings in another country?

Canada – Ontario If the parties reach an agreement on the financial issues, they do A divorce proceeding commenced in Canada can be stayed where not need to attend court and obtain a court order. The parties can a court determines that the foreign jurisdiction is the more simply execute a written agreement which will be recognized and convenient forum. Some of the factors a court will consider in enforced by the courts as long as it complies with formalities of a making this determination include: domestic contract as prescribed by the Family Law Act. ■ the location of the parties; ■ the location of the key witnesses and evidence; 2.6 How long can spousal maintenance orders last and ■ the avoidance of a multiplicity of proceedings; are such orders commonplace? ■ contractual provisions that specify applicable law or accord jurisdiction; Spousal support orders are commonplace in Ontario and can be ■ the application law and its weight in comparison to the factual time-limited or indefinite depending on various factors, such as questions to be decided in the case; the length of the marriage and the age of the parties at the time of ■ geographical factors suggesting the natural forum; and separation. ■ whether declining jurisdiction will deprive the spouse who commenced the proceeding in Canada a legitimate juridical 2.7 Is the concept of matrimonial property recognised in advantage available in the domestic court. your jurisdiction?

In Ontario, there is no special category of matrimonial property. All 2 Finances on Divorce forms of property are equalized under the Family Law Act.

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? The court can make orders in respect of child support, spousal Can the court make orders applying foreign law rather support and property division. than the law of the jurisdiction?

Foreign nationals are not treated differently assuming jurisdiction 2.2 Do matrimonial regimes exist and do they need to be is found. In very restricted circumstances, foreign law may apply addressed by the court on divorce? Is there a default with respect to property rights if the parties separated while living regime? in another jurisdiction. In Ontario, the Family Law Act deems all marriages to be economic partnerships. At the end of the marriage, whether by separation or 2.9 How is the matrimonial home treated on divorce? death, a spouse may seek an equalization payment from the other. The equalization calculation provides for the parties to share an In Ontario, any home which the parties ordinarily occupied at the increase in wealth during the marriage. All forms of property are time of separation has special treatment in equalization. The owner valued at the date of marriage and the date of separation, with certain of the home may not claim a deduction for the same property at the assets unrelated to the partnership, such as inheritances during the date of marriage. Moreover, regardless of legal ownership, both marriage, being excluded. In rare cases, a court may order unequal parties have a right of possession to the home until divorce or court division where equalization would be unconscionable. order and neither party can sell or encumber the property without the other party’s consent. 2.3 How does the court decide what orders to make? What factors are taken into account? 2.10 Is the concept of “trusts” recognised in your jurisdiction? A court will consider factors related to the financial circumstances of the parties, including income, assets and liabilities both during the Trusts are recognized in Ontario. marriage and following separation. The circumstances and actions of the parties around the time of separation may also be relevant 2.11 Can financial claims be made following a foreign depending on the claims being made. In spousal support claims, the divorce in your jurisdiction? If so, what are the length of the marriage, the impact of childcare responsibilities, and grounds? the financial consequences of marriage breakdown to the parties are considered. Ontario courts do not have jurisdiction to hear and determine spousal

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support claims following a valid divorce in another jurisdiction. An Ontario court may have jurisdiction under the Family Law Act to 4.2 What financial orders can a cohabitee obtain? determine child support and family property claims. Cohabitees may claim child support, spousal support or assert common law or equitable property claims. 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)? Parties may resolve their disputes by negotiation, mediation, arbitration or litigation. There is no formal partnership status.

3 Marital Agreements 4.4 Are same-sex couples permitted to marry or enter Canada – Ontario other formal relationships in your jurisdiction?

3.1 Are marital agreements (pre and post marriage) Same-sex couples may marry throughout Canada. enforceable? Is the position the same if the agreement is a foreign agreement? 5 Child Maintenance Parties may enter domestic contracts disposing of support and property rights before, during or after a marriage. A foreign contract governing such rights will be enforceable if it meets the formal 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? validity requirements set by the Family Law Act. Domestic contracts concerning custody and access will not be enforced if they are not in the child’s best interests. Domestic contracts concerning child support A parent may claim child support on behalf of his or her child that depart from Child Support Guidelines will not be enforced. following separation where that parent is the child’s primary Domestic contracts may be set aside if the parties did not make caregiver or there is a shared parenting arrangement. comprehensive financial disclosure, did not understand the nature and terms of the contract, or otherwise under the law of contract. 5.2 How is child maintenance calculated and is it administered by the court or an agency?

3.2 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or Child support is determined under the Child Support Guidelines compensation, or are they limited to the election of which calculate monthly child support based on the parenting the matrimonial property regime? arrangements, income and the number of children. In addition, a parent may seek contribution to special or extraordinary expenses Marital agreements can cover all financial claims for property and including childcare, private school or university expenses. support. Where the payor spouse earns over $150,000 per year, the court has discretion to order an amount of support that differs from 3.3 What are the procedural requirements for a marital the Guidelines after considering the condition, means, needs and agreement to be enforceable on divorce? circumstances of the parties and the children.

An agreement must be in writing, signed by both parties, and 5.3 For how long is a parent required to pay child witnessed. maintenance or provide financial support for their children? For example, can a child seek maintenance during university? 4 Cohabitation and the Unmarried Family Parents must pay child support as long as the child is a dependant even if over the age of majority if that child is unable to withdraw 4.1 Do cohabitees, which do not have children, have financial claims if the couple separate? What are the from parental control because of illness, disability or, education. grounds to make a financial claim? 5.4 Can capital or property orders be made to or for the In Ontario, cohabitees have rights to support and may make benefit of a child? equitable claims for relief in relation to property but do not have the right to equalization. Family property rights are reserved for parents. Unmarried spouses have spousal support rights if they have cohabited for at least three years. They may make common law 5.5 Can a child make a financial claim directly against property claims or equitable claims for unjust enrichment, other their parents? restitutionary claims or claims. A child may apply for support from a parent but this is rare.

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absent proof of the consent of the other parent. A parent should 6 Children – Parental Responsibility and not remove a child from the jurisdiction without the other parent’s Custody consent.

6.1 Explain what rights of custody both parents have 6.7 Is there a presumption of an equal division of time in your jurisdiction whether (a) married, or (b) between separating or divorcing parents? unmarried? There is no set presumption in the law for an equal division of time All parents, whether married or unmarried may make a claim for between separating or divorcing parents. custody or access to a child. Rights of custody include physical custody, or legal custody which 6.8 Are unmarried parents treated in the same way as concerns making major decisions for the child in relation to the married parents when the court makes orders on Canada – Ontario child’s health, education and welfare. separation or divorce?

6.2 At what age are children considered adults by the Regardless of whether a claim is being made by a married or court? unmarried parent, the legal test and the considerations are the same; the best interests of the child. A child is considered an adult at 18 years old. 6.9 Is a welfare report prepared by an independent 6.3 What is the duration of children orders (up to the age professional or is the decision taken by the Judge of 16 or 18 or otherwise)? alone? If so, does the child meet the Judge?

Custody and access orders do not operate once a child reaches the A court may order an assessment to report on the needs of the child age of 18 years or marries. and the ability and willingness of the parents to meet these needs by a qualified third party professional. The author of this report must be appointed by the court prior to starting the assessment process 6.4 What orders can the court make in relation to and will typically be an independent mental health professional with children? Does the court automatically make orders in experience in the area of family disputes. The court will consider relation to child arrangements in the event of divorce? the final assessment report prepared by this professional when making a decision about custody and access of a child. A court A court can make custody and access orders. Access is the right may also obtain the views and preferences of the child by way of a to spend time with a child and to make inquiries and be given judicial interview or by appointing legal representation for the child. information concerning the child’s health, education and welfare. Custody is the right to make major decisions for a child in relation to health, education, and welfare. A court can either grant sole or 6.10 Is there separate representation for children in your joint custody to a child. A court can also make orders about the jurisdiction? physical custody of a child. This physical custody can either be granted primarily to one parent, or can involve a sharing of time An independent branch of the Ontario Government called the Office between parents. of the Children’s Lawyer provides legal representation to children and youth in child welfare and custody/access matters across the Parents are free to reach their own agreement about the parenting province. arrangements following separation and this agreement will be respected by the court so long as it accords with the best interests In custody/access cases, the court has the discretion to order legal of the child. representation for the child under the Children’s Law Reform Act. Once this order is made, the Office of the Children’s Lawyer will then determine whether to actually appoint a lawyer to act for the 6.5 What factors does the court consider when making child. This decision will be made based on the circumstances of the orders in relation to children? case and available resources.

The primary consideration when making a decision in relation to children is the best interests of the children in the circumstances. In 6.11 What methods of dispute resolution are available to Ontario, a court will consider the love, affection and emotional ties resolve disputes relating to children? between the child and the parties, the child’s views and preferences, and the ability and willingness of the parties to meet the needs of The parties may resolve parenting disputes by negotiation, the child. A court will also consider the willingness of a parent to mediation, arbitration or litigation. facilitate contact between the child and another parent. 7 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? Without a court order or written agreement in place in respect of custody, parents may have difficulty unilaterally registering a child A custodial parent may not move a child to another jurisdiction for a school-related program, counselling or medical treatment without the consent of the other parent or court order.

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7.2 If the court is making a decision on relocation of a 8 Overview child abroad, what factors are taken into account?

8.1 In your view, what are the significant developments in A court must consider the child’s best interests, considering: family law in your jurisdiction in the last two years? ■ the existing custody/access arrangement and the relationship between the child and both parents; Ontario has introduced new parentage legislation in the Children’s ■ the desirability of maximizing contact between the child and Law Reform Act which conceives parenthood as derived from both parents; intention rather than biology. The statute now addresses assisted ■ the views of the child; reproduction technology and diverse family forms with multiple ■ the reason for the move where it may affect the parent’s parents. ability to meet the needs of the child; Canada – Ontario ■ disruption to the child on a change in custody; and 8.2 What are some of the areas of family law which you ■ disruption to the child on removal from family, schools and think should be looked into in your jurisdiction? community. Under Ontario’s current laws, unmarried spouses only have equitable 7.3 In practice, how rare is it for the custodial parent to be property claims and do not have access to the family property allowed to relocate internationally/interstate? regime that applies to married spouses. This causes confusion and merits review. Relocation cases are largely fact-driven. Courts can and will permit relocation abroad depending on the circumstances of the case.

7.4 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention?

Canada is a signatory to the Hague Convention. Ontario has incorporated the terms of the Convention into provincial legislation (the Children’s Law Reform Act) and made it clear that these terms override any conflicting provincial legislation.

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Sarah Boulby Oren Weinberg Boulby Weinberg LLP Boulby Weinberg LLP 80 Richmond Street West, 18th Floor 80 Richmond Street West, 18th Floor Toronto, Ontario Toronto, Ontario M5H 2A4 M5H 2A4 Canada Canada

Tel: +1 647 494 0113, Ext. 101 Tel: +1 647 494 0113, Ext. 100 Email: [email protected] Email: [email protected] URL: www.boulbyweinberg.com URL: www.boulbyweinberg.com

Sarah advises clients located in Ontario and internationally on complex Oren has practiced family law exclusively since 2005. He advocates support, property and parenting issues. She negotiates agreements for his clients when negotiating agreements, appearing before trial

Canada – Ontario and represents clients in court at the trial and appellate level as well as and appellate courts as well as in mediations and arbitrations. Oren in mediations and arbitrations. handles all aspects of family law including property and support, custody and access. Oren acts for clients based in Ontario and Sarah is the President of the Canadian Chapter of the International internationally. Academy of Family Lawyers. Sarah is a member of the Law Alumni Association Council of the University of Toronto Faculty of Law. Sarah Oren graduated from York University with an Honours Bachelor of Arts is a director of the Toronto Lawyers’ Association. in 1995. He obtained a Masters of Arts in 1997 from the University of Toronto. Oren worked for a major Canadian bank before attending law Sarah graduated from Queen’s University with an Honours Bachelor of school. He graduated from the University of Western Ontario with an Arts in 1986 and a Master of Arts in 1989. She graduated with an LL.B. LL.B. in 2004. He was called to the Ontario bar in 2005. 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. Oren participated in the Program on Negotiation at the Harvard She was called to the Ontario Bar in 1993. She was counsel to the Negotiation Institute where he completed the Mediating Disputes Ontario Law Reform Commission and since 1993 has practiced as a Workshop. family lawyer. Oren is a Fellow of the International Academy of Family Lawyers.

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.

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Canada – Quebec Pierre-Hugues Fortin

FSD Law Group Inc. Marie-Hélène Saad

conclusions pertaining to corollary relief such as custody, child 1 Divorce support, spousal support, partition of marital assets and property forming part of the matrimonial regime, compensatory allowance, 1.1 What are the grounds of jurisdiction for divorce etc. proceedings? For example, residence, nationality, The Application for Divorce, accompanied by a Summons, is domicile, etc.? served upon the Defendant. The Summons informs the Defendant of the options available to him namely to negotiate a settlement, In the province of Quebec, the Superior Court has jurisdiction to to participate in mediation sessions or a settlement conference hear and determine a divorce proceeding if either spouse has been presided by a judge, or to contest and cooperate in the establishment ordinarily resident in said province for at least one year immediately of a Case Protocol pertaining to the conduct of the proceeding. The preceding the commencement of the proceeding. Defendant must provide an answer with respect to said options within the following 15 days of the service of the Application for 1.2 What are the grounds for a divorce? For example, is Divorce, failing which a default judgment may be rendered against there a required period of separation, can the parties the latter. have an uncontested divorce? If the case is not settled, the Case Protocol must be filed with the court office within three months after service upon Defendant of the A divorce may be granted only on the ground that there has been above-mentioned Summons. Within 20 days after said Protocol is a breakdown of the marriage, which is established only if at least filed, the court examines it to ensure that the guiding principles of one of the following situations is proven: One-year separation: procedure are observed. It is presumed to be accepted by the court the spouses have lived separate and apart for at least one year unless the parties are called, within that same 20-day period, to a immediately preceding the determination of the divorce proceeding case management conference. and were living separate and apart at the commencement of the The Applicant is required to complete the case for trial within one proceeding; Adultery: the spouse against whom the divorce year after the date on which the Case Protocol is accepted by the proceeding is brought has, since celebration of the marriage, court or is established in conjunction with or by the court. The committed adultery; and Physical or mental cruelty: the spouse Applicant must also, before that strict time limit expires, file a against whom the divorce proceeding is brought has, since the Request to have the case set down for trial and judgment. It is to be celebration of the marriage, treated the other spouse with physical noted that if the parties have not filed a Case Protocol, the above- or mental cruelty of such kind as to render intolerable the continued mentioned one-year limit is counted from service of the Application cohabitation of the spouses. of Divorce upon Defendant. The Applicant who fails to file a Request to have the case set down 1.3 In the case of an uncontested divorce, do the parties for trial within the one-year strict time limit is presumed to have need to attend court? discontinued his Application, unless the Defendant files such a Request within 30 days after the expiry of the time limit. No. The parties may settle all the consequences of their separation Considering that it may take approximately two years from the and divorce in the form of a written agreement named “Consent to service of the Divorce Application before the accessory measures Judgment” which they sign and submit to the court, through their to the divorce are heard by the divorce trial judge, the Application attorneys or by filing the same in the court record, for approval for Divorce may include conclusions pertaining to provisional and homologation. Proof is normally made by way of a Detailed measures, such as temporary orders pertaining to custody, child Affidavit. Exhibits and forms related to the divorce and to corollary support, spousal support and use of the family residence. Said relief must also accompany the Consent to Judgment in order for the measures are tried and determined by preference. Moreover, the court to process the file. Application for Divorce may include conclusions pertaining to safeguard of rights measures for urgent matters, which may be heard 1.4 What is the procedure and timescale for a divorce? very quickly, the evidence being made by way of affidavits. If the case is uncontested or settled at any point during the instance, An Application for Divorce must be instituted before the Superior assuming that the file is complete and that all required documents Court of the province of Quebec. The Application may include have been filed, due to the delays it normally takes at courtto

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process a file, it may take approximately three months to obtain a relating to the patrimonial rights of the parties. However, if divorce judgment. warranted by the circumstances, this may be addressed at a later date. The default matrimonial regime in the province of Quebec is the Partnership of Acquests (equal division of all property acquired 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and during the marriage, subject to certain exceptions and deductions). finances. 2.3 How does the court decide what orders to make? When granting a divorce, the court rules on ancillary applications What factors are taken into account? such as applications relating to the custody, maintenance or education of the children or to child or spousal support. At the same time, or The orders the court will make on patrimonial issues will mostly at a later date, if warranted by the circumstances, the court rules on depend on the requests presented by the parties. The court is issues relating to the private regime of Family Patrimony and other bound to address the issues of public order such as spousal/child Canada – Quebec patrimonial rights arising from the marriage. support and the family patrimony. Where a court is considering an application for a child support order and an application for a spousal 1.6 Are foreign divorces recognised in your jurisdiction? support order, the court will give priority to the child support in determining the applications. Child support is based on provincial/ federal guidelines. The factors in the award of spousal support For all purposes of determining the marital status of a person in are the means, needs and other circumstances of each spouse Canada (married or divorced), a judgment of divorce rendered in a including the length of cohabitation, the functions performed during country other than Canada is generally recognized as of right in the cohabitation and any order, agreement or arrangement relating to province of Quebec, without any process of exemplification, if either support. Spousal support orders should be awarded in order to former spouse was ordinarily resident in that country for at least one meet four objectives of which no one is predominant: recognize year immediately preceding the commencement of proceedings for any economic advantages or disadvantages to the spouses arising the divorce. In the event of contestation pertaining to the judgment from the marriage or its breakdown; apportion between the spouses of divorce rendered in a foreign country or in the event of a judgment any financial consequences arising from the care of any child of of divorce which may include conclusions pertaining to the accessory the marriage over and above any obligation for the support of measures to a divorce (such as child custody, child support, alimony/ any child of the marriage; relieve any economic hardship of the spousal support, division of assets, matrimonial regimes, gifts made spouses arising from the breakdown of the marriage; and, insofar as in consideration of marriage, etc.), recognition and enforcement may practicable, promote the economic self-sufficiency of each spouse be granted by the Quebec authorities in conformity with the Civil within a reasonable period of time. Compensatory allowance orders Code of Quebec or a specific law. are based on the contributions of one spouse to the enrichment of the other spouse. 1.7 Does your jurisdiction allow separation or nullity proceedings? 2.4 Is the position different between capital and maintenance orders? Yes. These two recourses are foreseen in our Civil Code of Quebec at articles 493 et seq. and 380 et seq. The court has much more discretion in rendering maintenance or compensatory orders, as opposed to orders pertaining to the primary 1.8 Can divorce proceedings be stayed if there are regime of family patrimony and matrimonial regime, which are proceedings in another country? governed by specific rules contained in theCivil Code of Quebec.

Yes. Pursuant to section 3137 of the Civil Code of Quebec, a 2.5 If a couple agrees on financial matters, do they need Quebec authority may, on the application of a party, stay its ruling to have a court order and attend court? on divorce proceedings if another action, between the same parties, based on the same facts and having the same subject, is pending It is possible for the spouses to submit to the court for approval, by before a foreign authority, provided that the latter action can result filing a joint application or separately, a draft agreement that provides in a decision which may be recognized in Quebec. a complete settlement of their joint/separate application for divorce. Proof is normally made by way of detailed affidavits. However, 2 Finances on Divorce when the court is asked to rule on an agreement, it makes sure that each party has given its consent freely and that the agreement sufficiently protects the interests of the parties and the children. For 2.1 What financial orders can the court make on divorce? that purpose, the court may convene and hear the parties.

Spousal/child support, provision for costs, partition of marital 2.6 How long can spousal maintenance orders last and property (private regime of family patrimony), partition of property are such orders commonplace? falling in matrimonial regime and entitlement to compensatory allowance. Spousal support can be ordered by way of periodic sums or lump sums. In the case of regular payments, the court may award spousal 2.2 Do matrimonial regimes exist and do they need to be support for a fixed length of time, determine that no term needs to addressed by the court on divorce? Is there a default be fixed, or until a specific event occurs and may impose terms, regime? conditions or restrictions in connection with the order as it thinks fit and just. Spousal support awarded for an indefinite period is more Yes. When granting a divorce, the court normally rules on issues common in a traditional, long-duration marriage. The established

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jurisprudence requires that there be precise circumstances and real and concrete considerations to justify a court to impose a specific 2.12 What methods of dispute resolution are available to term to spousal support orders. It is not unusual for the court of resolve financial settlement on divorce? E.g. court, mediation, arbitration? Appeal to annul spousal support orders rendered for a definite period.

Our new Civil Code of Procedure, which came into force on January 2.7 Is the concept of matrimonial property recognised in 1st, 2016, provides that parties must consider private prevention and your jurisdiction? resolution processes before referring their dispute to the courts. The main processes available for family law disputes are negotiation Marriage entails the establishment of a family patrimony consisting between the parties and mediation. The parties may also resort to of certain property of the spouses regardless of which of them holds any other process that suits them and that they consider appropriate, a right of ownership of that property, subject to certain exceptions whether or not it borrows from negotiation or mediation (such and deductions. The main components of the family patrimony as collaborative law). Disputes over family matters may not be Canada – Quebec are the residences of the family or the rights which confer use of submitted to arbitration in the province of Quebec. them, the moveable property furnishing or decorating the residences of the family and which serves for the use of the household, the motor vehicles used for family travel, the benefits accrued during 3 Marital Agreements the marriage under a retirement plan and the registered earnings, during the marriage, of each spouse pursuant to the Act respecting the Quebec Pension Plan or similar plans. 3.1 Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement is a foreign agreement? 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Yes, as long as the marital agreements respect the imperative Can the court make orders applying foreign law rather provisions of law and public order, and that they are established by than the law of the jurisdiction? a notarial act en minute, on pain of absolute nullity. In the case of a foreign agreement, it must respect the imperative provisions of the No, however, section 3123 of the Civil Code of Quebec provides that Quebec Law and public order to be enforceable. in certain circumstances, the matrimonial regime of spouses who have not entered into matrimonial agreements may be governed by the law of the common nationality of the spouses: 3.2 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or “Article 3123: The matrimonial or civil union regime of compensation, or are they limited to the election of spouses who have not entered into matrimonial or civil union the matrimonial property regime? agreements is governed by the law of the state in which they have their domicile at the time of the marriage or civil union. If the spouses are at that time domiciled in different states, In the province of Quebec, Marital Agreements are called “Marriage the applicable law is the law of their first common residence Contracts” and are normally limited to the election of the matrimonial or, failing that, the law of their common nationality or, failing property regime. Spouses can enter into a Marriage Contract to that, the law of the place of solemnization of their marriage choose a matrimonial regime such as Separation as to Property or or civil union”. [Underlining added.] create a regime that meets their particular needs subject to the imperative provisions of law and public order. For example, in the Marriage Contract, one cannot renounce in advance to the application 2.9 How is the matrimonial home treated on divorce? of the provisions pertaining to the primary regime of Family Patrimony. Future spouses and spouses can also provide, in the The court may award the right of use of the family residence to the Marriage Contract, for gifts such as property or money, to the other spouse to whom it awards custody of a child. The award of the spouse or to the children. Provisions pertaining to future custody, right of use is effected, failing agreement between the parties, on the child support, spousal support and maintenance are not included in a conditions determined by the court and, in particular, on condition of Marriage Contract and if so, would not be enforceable, although said payment in cash or by instalment. Ultimately, the family residence provisions may be taken into consideration at the time of the divorce. is subject to the rules of the primary regime of family patrimony.

3.3 What are the procedural requirements for a marital 2.10 Is the concept of “trusts” recognised in your agreement to be enforceable on divorce? jurisdiction?

Any claim based on the Marriage Contract must be included in the Yes. Sections 1260–1298 of the Civil Code of Quebec provide the conclusions sought in the Application for Divorce, and a certified rules pertaining to trusts. true copy of the Marriage Contract must be filed in court in support of the claims pertaining to said contract. 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? 4 Cohabitation and the Unmarried Family

Yes. In Canada, a court in a province has jurisdiction to hear and 4.1 Do cohabitees, which do not have children, have determine a corollary relief proceeding if either former spouse is financial claims if the couple separate? What are the ordinarily resident in the province at the commencement of the grounds to make a financial claim? proceedings; or both former spouses accept the jurisdiction of the court. Under the law of other Canadian provinces, de facto spouses

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may owe each other support, after a certain number of years of other in a foreign country. According to these federal guidelines, cohabitation, generally after two years. This is not the case in the only the income of the payer spouse is taken into account for the province of Quebec where only married or civil union spouses are determination of the basic amount of child support. entitled to support. According to the Act to facilitate to payment of support, the Minister of Revenue of Quebec (government) collects child support from 4.2 What financial orders can a cohabitee obtain? the payor and remits same to the , without charge to the recipient. De facto spouses are not entitled to support unless stipulated otherwise in a cohabitation and separation contract, which is 5.3 For how long is a parent required to pay child enforceable by the courts. Such contracts can also address issues maintenance or provide financial support for their related to partition of accumulated assets, debts and ownership of children? For example, can a child seek maintenance immoveables co-owned by the cohabitees. Moreover, a de facto during university? Canada – Quebec spouse may have recourse for Unjust Enrichment against his de facto spouse according to articles 1493 et seq. of the Civil Code of Child support is payable at least until the child turns 18. A child Quebec. Article 1493: A person who is enriched at the expense of of full age who is not able to support himself, by reason of illness another shall, to the extent of his enrichment, indemnify the other or disability, or because he is pursuing full-time studies, may be for the latter’s correlative impoverishment, if there is no justification entitled to child support. for the enrichment or the impoverishment. 5.4 Can capital or property orders be made to or for the 4.3 Is there a formal partnership status for cohabitants benefit of a child? (for example, civil partnerships, PACS)? Normally, support is payable as a pension, however, the court may, No. However, at the time of separation de facto spouses may by way of exception, replace or complete that support by a lump sum partition the earnings registered in their respective name according payable all at once or by instalments. The Court may also require that to the Quebec Pension Plan provided that certain conditions are the amount payable be paid or secured, or paid and secured, in the met. Also, in the case of a surviving de facto spouse, he or she may manner specified in the order. The Court may also order the constitution receive the surviving spouses’ pension upon the death of the latter. of a trust to secure such payment. Under the Federal Guidelines, when the debtor’s income is over $150,000 and if the amount provided for in the child support guidelines exceeds the daily needs of a child, the 4.4 Are same-sex couples permitted to marry or enter court may make a deduction from said maintenance for future needs other formal relationships in your jurisdiction? and order the constitution of a trust accordingly for the benefit of the child. Under the Provincial Guidelines, said deduction may be made As of July 2005, same-sex partners can marry in Canada. when the parents’ disposable income exceeds $200,000.

5 Child Maintenance 5.5 Can a child make a financial claim directly against their parents?

5.1 What financial claims are available to parents on Yes. It is possible for the adult child to petition the court directly for behalf of children within or outside of marriage? the request of support payments. In divorce cases, the adult child must act within the divorce file already opened by his parents and Whether children are born issue from a marriage or not, they are not in a separate file. In cases of Separation as to Bed and Board or entitled to child support from their parents. For married couples, when the parents are de facto spouses, the adult child has a separate any child for whom they both stand in the place of parents as well as recourse as to legal proceedings in relation to that of his parents, and any child of whom one is the parent and for whom the other stands consequently, he may introduce a demand for alimentary support in the place of a parent (in loco parentis), is considered a child of the under a separate court file number. marriage and is entitled to child support.

5.2 How is child maintenance calculated and is it 6 Children – Parental Responsibility and administered by the court or an agency? Custody

In Quebec, child support is determined in virtue of mandatory 6.1 Explain what rights of custody both parents have guidelines based on the income of the parties. Two different in your jurisdiction whether (a) married, or (b) guidelines are applicable in the province of Quebec: the Regulation unmarried? Respecting the Determination of Child Support Payments when the parents are not married or when both parents (married or not) are Married or de facto spouses have the same rights regarding parental living in the province of Quebec. According to these provincial responsibility and custody. A child remains subject to the authority guidelines, the income of both parents is considered as well as of his father and mother until his majority. Both parents exercise the custody time of both parents and the number of children. The parental authority together, giving them the right to decide on second set of guidelines, the Federal Child Support Guidelines, is all issues concerning the well-being of the child. In the event of applicable in cases where spouses are married, living in different a break-up, the parents continue to share the exercise of parental Canadian provinces or where one spouse lives in Canada and the authority together, subject to the nature of the custodial agreement/

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order: sole custody with visiting rights or shared custody. In the event of sole custody, the parent with custody has the exercise of 6.9 Is a welfare report prepared by an independent parental authority on a daily basis, but needs to consult the other professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? parent on all major decisions involving their child including, but not limited to, issues related to health, education and religion. In any family law case in which the interests of a minor child are at stake, the court, on its own initiative or on an application, may 6.2 At what age are children considered adults by the order the Psychological Assessment Service of the Superior Court court? to appoint an expert to enlighten the court on any custody-related or other issue affecting the child. The judge is not bound by the The age of majority is 18 years old. conclusions of the expert. The parties may choose to proceed with private experts by agreement, or with permission of the court if contested. The court shall, in every application pertaining to the 6.3 What is the duration of children orders (up to the age Canada – Quebec of 16 or 18 or otherwise)? interests of a child, give the latter a chance to be heard if his age and power of discernment permit it, this includes potential meeting Custodial orders end at 18 years old. with a judge.

6.4 What orders can the court make in relation to 6.10 Is there separate representation for children in your children? Does the court automatically make orders in jurisdiction? relation to child arrangements in the event of divorce? The court, even on its own initiative, may order representation if The court can award sole custody to a parent, with basic or extended necessary to safeguard the rights and the interest of a child. visiting rights to the other parent. The court can also award shared custody to both parents. For this to qualify as shared custody, one 6.11 What methods of dispute resolution are available to parent needs to have at least 40% of the custodial time. In the event resolve disputes relating to children? of a divorce, the court must rule on applications relating to the custody, maintenance or education of the children. The Civil Code of Procedure of Quebec provides for mediation in course of family law proceedings. The court may, at any time, stay 6.5 What factors does the court consider when making the proceeding or adjourn the trial to enable the parties to enter into orders in relation to children? or continue mediation.

The main factor is the superior interest of the child. The court will give consideration to the moral, intellectual, emotional and physical 7 Children – International Aspects needs of the child as well as the child’s age, health, personality, family environment and any other aspects of this situation. 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child The custodial parent requires the consent of the other parent to move abroad? a child to another province or country if the visiting rights would be affected by relocation. In situations where the visiting rights of the Both parents need to consult each other on all issues relating to their non-custodial parent would be affected by the projected relocation, child, including the question of travelling or where the child should this would normally be considered a major change in circumstances live. In the event of a disagreement, any of the parents may refer allowing the court to revisit the initial custody order. the matter to the court. 7.2 If the court is making a decision on relocation of a 6.7 Is there a presumption of an equal division of time child abroad, what factors are taken into account? between separating or divorcing parents? The judge must embark on a fresh inquiry into what are the best There is no such presumption applied by the courts in the province interests of the child, having regard to all the relevant circumstances of Quebec. related to the child’s ability of the respective parents to satisfy them. The inquiry does not begin with a legal presumption in favor of the custodial parent, although the custodial parent’s views are entitled 6.8 Are unmarried parents treated in the same way as to great respect. More particularly, the judge should consider, inter married parents when the court makes orders on separation or divorce? alia: existing custody/access arrangements and the relationship with the other parent; desirability of maximising contact; view of Yes, all issues relating to parental responsibility and custody are the child; the custodial parent’s reasons for moving (only in the governed by the same principles, whether the child is born issue of exceptional case where it is relevant to that parent’s ability to meet married parents or not. However, child support may be governed by the needs of the child); disruption to the child of a change in custody; different guidelines in divorce cases in situations where parents are and consequent disruption to the child on removal of family, schools not both living in the province of Quebec. and the community he/she has come to know.

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■ increasing the access to the family law system by encouraging 7.3 In practice, how rare is it for the custodial parent to be the use of alternative dispute resolution services such as allowed to relocate internationally/interstate? mediation, by offering child support administration services and recalculation services, etc. Each case turns on its own unique circumstances. The only issue However, these amendments would not be applicable to children that will be taken in consideration by the court is the best interests who are not born issue from a marriage, which is more than of the child in the particular circumstances of the case. unfortunate as, in Quebec, 60% of children are born issue from a de facto relationship. These amendments would thus create two 7.4 How does your jurisdiction deal with abduction different legal systems for children which seems unfair. cases? For example, is your jurisdiction a party to the Hague Convention? 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction?

Canada – Quebec Canada is a party to the 1980 Hague Convention. It has been applied st to Quebec since January 1 , 1985, the date of the Act respecting the In the province of Quebec, maintenance obligations exist only civil aspects of international and interprovincial child abduction between married or civil union spouses. De facto spouses are not coming into force. covered by the obligation of support contained in our Civil Code. In 2013, a government-mandated committee was created in order to 8 Overview determine how Quebec family law should be reformed. A report was completed in 2015, including many recommendations to reform the current laws for unmarried couples. Among the recommendations 8.1 In your view, what are the significant developments in is a mandatory parental regime that would apply to de facto family law in your jurisdiction in the last two years? spouses. This regime would set out obligations towards children born during de facto unions as well as between parents following nd On May 22 , 2018, the Federal Minister of Justice introduced a a separation. Support between de facto spouses in the province of Bill that proposes amendments to legislation relevant to family law, Quebec would remain impossible, but financial compensation to including the Divorce Act. If said Bill is passed and assented, the the other de facto spouse would be possible if a child/children is amendments would represent the first substantive update in 20 years. born out of the relationship (child-centred approach). The report The proposed amendments to the Divorce Act are aimed at ensuring suggests that a parent at an economic disadvantage due to the end that the best interests of children whose parents are divorcing are of the relationship would have the right to claim compensation for protected. time spent taking care of children instead of pursuing a career. This The proposed amendments emphasize on the following: compensation would be a fixed amount and not alimony paid by the ■ modernizing the traditional language to be more neutral former de facto spouse. and less adversarial, for example replacing “custody” and The rights between de facto spouses in the province of Quebec will “access” with “parenting time” and “decision-making evolve according to political will. Unfortunately, the committee’s responsibility”; report was shelved and the proposed family law reform has not ■ providing more guidance in determining the “best interests progressed since. of the child” by enumerating non-exhaustive specific factors More recently, a public consultation took place during the months that a court must consider in determining the best interest of a child; of May and June this year in order to determine if current family laws are relevant to modern Quebec couples and families. This ■ introducing a definition of “family violence” and a list of public consultation was an initiative of the Chambre des notaires du factors to be taken into account by the court in considering the impact of said violence on the best interests of the child Quebec and a report is expected during the summer of 2018. and in making appropriate parenting arrangements; ■ introducing guidelines with respect to relocation requests including specific factors to be considered in determining whether the child should relocate with a parent and the burden of proof in various circumstances; and

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Pierre-Hugues Fortin Marie-Hélène Saad FSD Law Group Inc. FSD Law Group Inc. 204 Notre-Dame Street West, Suite 300 204 Notre-Dame Street West, Suite 300 Montreal, Quebec H2Y 1T3 Montreal, Quebec H2Y 1T3 Canada Canada

Tel: +1 514 507 5272 Tel: +1 514 507 5272 Email: [email protected] Email: [email protected] URL: www.fsdlawgroup.com URL: www.fsdlawgroup.com

Me Pierre-Hugues Fortin was admitted to the Bar of Quebec in 1999 Me Marie-Hélène Saad was admitted to the Bar of Quebec in 2007 and his areas of practice are Personal Rights Law, Divorce and Family and primarily practices Family Law. She is a member of the Montreal

Law, International Abduction Law and Estate Law. Me Fortin practices Bar, the Young Bar Association of Montreal, the Quebec Bar, the Canada – Quebec Divorce and Family Law on a provincial and international level. He Canadian Bar Association and the Association of Family Lawyers of is a member of the Montreal Bar, Quebec Bar, the Canadian Bar the Province of Quebec. Association and the Association of Family Lawyers of the province of Me Saad’s areas of practice include divorce, separation, partition Quebec (AAADFQ). Me Fortin is a Fellow of the International Academy of patrimonial and matrimonial property, child custody, parental of Family Lawyers (IAFL – Vice-President). He has worked on a alienation, child support, alimentary support to adult children, spousal variety of cases involving clients ranging from the average person, to support, modification of orders and actions relating to the contestation professional athletes and managers, international celebrities and other or establishment of filiation. high profile cases involving substantial assets and complex financial situations. Me Saad also worked on international family law cases involving the Act respecting reciprocal enforcement of maintenance orders as well as in matters of enforcement of foreign judgments in Quebec or Quebec judgment in foreign countries. She also worked in matters of conflict of jurisdictions and laws as well as in matters of relocation of children. Me Saad has worked on cases involving several American states such as California, Florida, Massachusetts, New Jersey and Texas, and other countries such as Brazil, England, France, Germany, Iran, Italy, Pakistan, South Korea and Switzerland.

FSD Law Group Inc. is committed to resolving their clients’ legal disputes using the highest ethical standards. Excellence, efficiency, commitment, dedication and integrity are the main values adhered to by our Firm. FSD Law Group Inc. is offering services in the following areas: Child Custody/ Residence/Visitation/Contact; Child Support; Divorce; Finance: Capital Provision; Finance: Property Issues; Hague Convention/Child Abduction; Modification/Variation: Child Custody; Modification/Variation: Child Support; Modification/Variation: Property Division; Modification/Variation: Spousal Support; Relocation/Removal from Jurisdiction; Spousal Support/Maintenance/Alimony; Mandates given in anticipation of incapacity; Protective Supervision Regimes; Advisors to persons of full age; Tutorship/Curatorship to persons of full age; Administration of Tutors/Property of Others; Solutions aiming at resolving family-related conflicts; Validity of inter vivos/mortis causa gifts; Revocation of gifts in account of ingratitude; Validity of Wills and Legacies; Disputes concerning the liquidation of the succession and/or functions performed by the liquidator of the succession; and Unworthiness of inheritance.

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England & Wales

Kingsley Napley LLP Charlotte Bradley

Divorces can proceed uncontested and usually do, although we do 1 Divorce not yet have “no fault” divorce unless the parties have been separated for at least two years and both consent to a decree of divorce. 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, 1.3 In the case of an uncontested divorce, do the parties domicile, etc.? need to attend court?

Jurisdiction to commence divorce proceedings in England and No. The first decree of divorce, decree nisi, is pronounced in open Wales is established under European Council Regulation no. court but the parties do not need to attend. The second and final 2201/2003 (“Brussels II”). The Courts of England and Wales will decree of divorce, decree absolute, is sent out to both parties on have jurisdiction for divorce proceedings where: paper. ■ the habitual residence of both spouses is in England and Wales; 1.4 What is the procedure and timescale for a divorce? ■ the last habitual residence of both spouses was England and Wales and one spouse still resides there; ■ the respondent’s habitual residence is in England and Wales; A divorce petition/application is issued and served on the respondent. The respondent completes an acknowledgment of service which is ■ the applicant’s habitual residence was in England and Wales returned to the Court. The applicant can then apply for the first for at least one year immediately before the application is made; decree of divorce, decree nisi. Six weeks and one day after decree nisi, the applicant can apply for decree absolute. ■ the applicant’s habitual residence was in England and Wales for at least six months and he/she is domiciled in England In an uncontested divorce, subject to court delays, the process takes and Wales; approximately four months. ■ both spouses are domiciled* in England and Wales; and If there are court delays or the respondent delays in returning the ■ where the Court of no other EU Member State (party acknowledgment of service, the timescale will be longer. to Brussels II) has jurisdiction for divorce proceedings, jurisdiction can be based on the domicile* in England and 1.5 Can a divorce be finalised without resolving other Wales of one of the spouses. associated matters? For example, children and *Note that domicile is a UK concept and does not mean residence. finances.

1.2 What are the grounds for a divorce? For example, is Yes. Children and financial issues are addressed separately to the there a required period of separation, can the parties divorce in England and Wales and there is no requirement for the have an uncontested divorce? Court to be involved in either aspect before the decree absolute (the final step in the divorce) can be granted. There is one ground for divorce in England and Wales; the irretrievable breakdown of the marriage. 1.6 Are foreign divorces recognised in your jurisdiction? This ground is then proven with reference to one of five facts: ■ the respondent’s adultery (with a person of the opposite sex); Yes in certain circumstances. The rules are set out in the Family ■ the respondent’s unreasonable behaviour; Law Act 1986 and, as between EU Member States (not Denmark), ■ the parties’ separation for two years or more, with the in Brussels II. respondent’s consent; As between EU Member States, a judgment, i.e. divorce in a ■ the parties’ separation for five years or more (no consent member state is recognised by other Member States without a required); or special procedure. ■ the respondent’s desertion of the applicant for a period of at As between non-EU countries, the Family Law Act 1986 least two years. distinguishes between “proceedings” and “non proceedings” divorces.

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An overseas divorce obtained by proceedings is recognised if treated separately during the marriage, i.e. they are not automatically the divorce is effective under the law of the country where it was responsible for the other’s debts, but we do not have property regimes. obtained and either party to the marriage was habitually resident, domiciled or a national of the country of divorce. 2.3 How does the court decide what orders to make? If the divorce was not obtained by proceedings, it is recognised if: What factors are taken into account? ■ the divorce is effective under the law of the country in which it was obtained; The Court has regard to the following factors set out in s25 of the ■ at the relevant date each party was domiciled in that country Matrimonial Causes Act 1973: or either party was domiciled in that country and the other ■ all the circumstances of the case and first consideration will party was domiciled in a country under whose law the divorce be given to the welfare of a minor child; is recognised as valid; and ■ the parties’ income, earning capacity, property and other ■ neither party to the marriage was habitually resident in the financial resources (now or in the foreseeable future), UK for the period of one year before the date of the divorce. including any increase in earning capacity, which it would England & Wales be reasonable to expect a party to the marriage to take steps to acquire; 1.7 Does your jurisdiction allow separation or nullity proceedings? ■ the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; Yes; England and Wales has processes for both Judicial Separation and Nullity, although they are rarely used in practice. ■ the standard of living enjoyed by the family before the breakdown of the marriage; ■ the age of each party to the marriage and the duration of the 1.8 Can divorce proceedings be stayed if there are marriage; proceedings in another country? ■ any physical or mental disability of either of the parties to the marriage; Yes, they can. ■ the contributions which each of the parties has made or is Within the EU, Brussels II provides for mandatory stays where there likely in the foreseeable future to make to the welfare of the are proceedings first seized in another Member State. family, including any contribution by looking after the home The Domicile and Matrimonial Proceedings Act 1973 provides for a or caring for the family; mandatory stay when there are proceedings elsewhere in the British ■ the conduct of each of the parties, if that conduct is such Isles. That statute also provides for discretionary stays when there that it would in the opinion of the Court be inequitable to are proceedings in another jurisdiction. disregard it; and ■ the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the 2 Finances on Divorce marriage, that party will lose the chance of acquiring. The Court has regard, in particular, to the principles set out in case law, namely needs, sharing (and equality of assets built up during 2.1 What financial orders can the court make on divorce? the marriage) and compensation.

The Court’s powers are set out in ss22–24 of the Matrimonial Causes Act 1973. The Court can make the following financial 2.4 Is the position different between capital and orders: maintenance orders? ■ Maintenance pending suit (interim maintenance). The same factors set out in question 2.3 above are considered when ■ Payment in respect of legal services (costs of proceedings). making both capital and maintenance orders. ■ Periodical payments (maintenance/alimony). However, case law confirms that capital and maintenance orders ■ Lump sum(s). are very different (although they interplay) and, whilst matrimonial ■ Periodical payments for the benefit of a child of the family capital may be divided equally on divorce (the sharing principle), (child maintenance). future income is not shared equally and maintenance orders are ■ Secured periodical payments. generally calculated by reference to “needs”. The Court has a duty to ■ Property adjustment (transfer of property). consider whether a party can adjust to a termination of maintenance ■ Sale of property. without undue hardship, and whether a clean break (i.e. no ongoing ■ Settlement of property. maintenance claims) is appropriate. ■ Varying an ante-nuptial or post-nuptial settlement. ■ Pension sharing and pension adjustment. 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court?

2.2 Do matrimonial regimes exist and do they need to be It is not obligatory to have a court order but it is advisable to ensure addressed by the court on divorce? Is there a default regime? the parties’ agreement is recorded and that financial claims are dismissed to avoid either party applying for financial provision in the future (which they can do even though they are divorced). The There is no concept of matrimonial regimes under the law of England parties do not usually need to attend court for their agreement to be and Wales and there is, therefore, no default regime. Other countries approved by the Court. A “Consent Order” recording their agreement believe that we have a “separation of property” regime as spouses are is lodged at court for approval by a Judge who will consider the fairness of the order and the parties’ financial circumstances.

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resources from a Trust (interest in a Trust and distributions/income 2.6 How long can spousal maintenance orders last and from a Trust). The English Court has power to vary a Trust insofar are such orders commonplace? as it is a nuptial settlement capable of variation s24(c) of the Matrimonial Causes Act 1973. The Court can also join Trustees to Spousal maintenance orders are commonplace, particularly where financial proceedings on divorce. there are children of the family and/or there is a disparity in earnings as between the parties. The Court has a duty to consider capitalising spousal maintenance and will do so if the parties have sufficient 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the capital. grounds? Spousal maintenance orders can be for any duration including for the parties’ joint lives (i.e. until the death of either party). A Yes. Following a foreign (proceedings) divorce, either party has common term of spousal maintenance is until the children reach a potential claim in England and Wales if he/she can come within England & Wales maturity or cease full-time education. Spousal maintenance the provisions under the Matrimonial and Family Proceedings Act orders automatically come to an end when the recipient remarries. 1984. Remarriage prevents a claim by that party. Permission of the Cohabitation is a relevant factor but will not automatically bring Court is required to make a claim. The Court has jurisdiction in the an end to spousal maintenance orders. England and Wales are following circumstances: considered generous in terms of their approach on maintenance but ■ if either party was domiciled in England and Wales on the the Court’s approach to whether a term order or joint lives order date of application or date of divorce; should be made can vary across the country. ■ if either party was habitually resident in England and Wales for the period of one year before the application or the date of 2.7 Is the concept of matrimonial property recognised in divorce; and your jurisdiction? ■ if either or both parties had at the date of application a beneficial interest in possession in a property in England Yes, even though we do not have formal property regimes, the Court which was at some time during the marriage a matrimonial deals with concepts of matrimonial and non-matrimonial property home. (property brought into the marriage or inherited from third parties) The Court will consider whether it is appropriate to make an order and can treat them differently when deciding what orders to make. in England and Wales with regards to: Generally non-matrimonial property is brought into account only if ■ the connection which the parties have to England and Wales; it is required to meet both parties’ needs. ■ the connection with the country of divorce and any other country; 2.8 Do the courts treat foreign nationals differently on ■ any financial benefit already received/likely to be received as divorce, if so, what are the rules on applicable law? a consequence of the divorce; and Can the court make orders applying foreign law rather ■ the extent to which any foreign order has been complied with; than the law of the jurisdiction? ■ any right which the applicant has to apply for financial relief outside of England and Wales; No. In family law, England and Wales operates on the basis of ■ the availability of property in England and Wales and the Lexi Fori (law of the forum) and will not apply foreign law. Only extent to which any order is likely to be enforceable; and English law will be applied by the English Court. ■ the length of time which has elapsed since the divorce.

2.9 How is the matrimonial home treated on divorce? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, The English Court will consider all financial resources, whether mediation, arbitration? they are in joint or sole names. In English law we have concepts of “matrimonial” and “non-matrimonial” property. The matrimonial The parties can agree a financial settlement themselves, engage in a home is treated differently to other assets and will often be treated court process, or use other dispute resolution methods of mediation, as matrimonial property whatever its origins (although that does not collaborative law, private judging or arbitration. 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: 3 Marital Agreements “The parties’ matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be 3.1 Are marital agreements (pre and post marriage) treated as matrimonial property for this purpose. As already enforceable? Is the position the same if the agreement noted, in principle the entitlement of each party to a share of is a foreign agreement? 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 for the enforceability of such agreement. The jurisdiction of the Court of 2.10 Is the concept of “trusts” recognised in your jurisdiction? England and Wales to order financial provision on divorce cannot be ousted by the parties’ agreement. However, our case law has developed rapidly over the last six years and as a result of the UK Yes. English law recognises Trusts (where property is held by one Supreme Court case of Radmacher v Granatino [2010] UKSC party for the benefit of another) and they regularly appear in divorce 42, the case law now says that the Court should give effect to a proceedings. The English Court can take into account available nuptial agreement that is freely entered into by each party with a

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full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. 4 Cohabitation and the Unmarried Family When deciding whether it is fair to hold the parties to a pre-nuptial agreement at the time of the divorce, the burden is now on the 4.1 Do cohabitees, which do not have children, have person seeking to set aside the agreement and a number of factors financial claims if the couple separate? What are the have been identified as relevant. For example, the parties must grounds to make a financial claim? enter into the agreement of their own free will. Duress or undue pressure could reduce the weight that is given to the agreement Cohabitants, especially without children, have very limited financial and could even negate it completely. The Court will look at the claims in England and Wales. Their financial claims are limited to parties’ circumstances at the time the agreement was entered into claims in relation to an interest in property which they can make (age, maturity and emotional state) in considering whether the under the Trusts of Land and Appointment of Trustees Act 1996. parties understood the implications of the agreement and whether England & Wales they intended it to be effective. Whether the parties obtained 4.2 What financial orders can a cohabitee obtain? independent legal advice and the level of financial disclosure will also be relevant. Under the Trusts of Land and Appointment of Trustees Act, a Any children of the marriage remain an overriding consideration cohabitee can apply for: and the terms of the agreement (with particular attention on needs) ■ a declaration in relation to the extent of a person’s interest in should still result in a “fair” outcome. The closer the effect of an property; and agreement to an outcome that the Court would find to be fair, with ■ an order for sale in relation to the property. needs met, the more likely it is to be upheld in the future but the agreement does not need to mirror what the Court would award if If there is a child, the cohabitant can make claims for the benefit of there had been no agreement. the child under Schedule 1 of the Children Act 1989 (see section 5 below). The position in relation to a foreign agreement will depend on the circumstances of the case but all of the above considerations will be relevant and, in particular, the Court will look at the parties’ 4.3 Is there a formal partnership status for cohabitants intentions at the time of the agreement. For example, was the (for example, civil partnerships, PACS)? foreign agreement a full agreement dealing with future claims in the event of a divorce or a simple contract to choose the couple’s In England and Wales, we allow civil partnerships for homosexual property regime which does not mention a future separation? couples but not for heterosexual couples. There is pressure on the Government to change the law to allow civil partnerships for all For further details of the English court’s approach to foreign couples and reform may well follow. Civil partners are entitled to agreements see Chapter 1 of this guide, International Marital the same financial protection as married spouses in divorce. Agreements – the Approach by the English Court on Divorce, by Charlotte Bradley. 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? 3.2 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of Yes. The Marriage (Same Sex Couples) Act 2013 was passed on 17 the matrimonial property regime? July 2013 and the first marriages of same-sex couples took place on 29 March 2014. Same-sex couples can also enter into formal civil A marital agreement can deal with capital or income claims, or partnerships under the Civil Partnership Act 2004 which came into both. As we do not have matrimonial property regimes in our force on 5 December 2005. jurisdiction, an English pre- or post-nuptial agreement would not elect a matrimonial property regime. 5 Child Maintenance

3.3 What are the procedural requirements for a marital agreement to be enforceable on divorce? 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? There are no procedural requirements because the agreement is not automatically enforceable, but Law Commission and case law Parents can make income/maintenance and capital claims on guidance confirms that certain safeguards should be in place to behalf of children under s15 and Schedule 1 to the Children Act assist with the enforceability of such an agreement: 1989 (known as Schedule 1 claims). Capital claims are limited to housing/settlement of property claims (returned to the payer when ■ each party should have independent legal advice on the terms and effect of the agreement; the child reaches majority) and lump sum claims to cover capital expenditure for the child. Claims for legal costs can also be made. ■ the agreement should be entered into 28 days before the wedding; and ■ each party should give material disclosure of their financial 5.2 How is child maintenance calculated and is it circumstances. administered by the court or an agency? As these guidelines are not yet in statute an agreement can still be upheld without those safeguards. Child maintenance will be determined either by the Child Maintenance Service (CMS) or by the Court. If the CMS has jurisdiction to deal with an application for child maintenance, the Court will not interfere unless the parties agree to an order of the

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Court. The CMS will not have jurisdiction if one parent is abroad An unmarried father will have parental responsibility: and the Court will also have jurisdiction if the payer earns in excess ■ if he is registered on the birth certificate (after 1 December of the maximum assessment. 2003); The rates of child maintenance are determined under the 2012 child ■ if he and the mother make a parental responsibility agreement; maintenance scheme (nil rate, flat rate, reduced rate, basic rate and ■ if the Court orders that he should have parental responsibility; default rate) depending on gross income. Child maintenance is and calculated on a percentage of gross salary basis. The calculations ■ following fertility treatment under the provisions of the are complicated and depend on various scenarios but there is an Human Fertilisation and Embryology Act 2008. online calculator at: http://www.cmoptions.org/en/calculator/.

The maximum amount of gross weekly income that can be taken 6.2 At what age are children considered adults by the into account when the CMS calculates maintenance is £3,000. court?

England & Wales If the Court makes an award of child maintenance under Schedule 1 it will consider the CMS calculation but can make a top-up award Children are considered adults by the Court at age 18. over and above the CMS rates with regard to a number of factors far wider than the CMS formula. It can take into account the carer’s 6.3 What is the duration of children orders (up to the age own expenditure when making the child maintenance order. As of 16 or 18 or otherwise)? such, in high-net-worth cases where the parties are not married, child maintenance awards can be significant. Normally, until a child reaches age 16 but in exceptional cases until the age of 18. 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 6.4 What orders can the court make in relation to during university? children? Does the court automatically make orders in relation to child arrangements in the event of divorce? Normally, until the age of 18/end of secondary education but the Court can specify a later date, usually when the child has completed The Court can make Child Arrangements Orders in relation to the a first degree at university. following: ■ where the child is to live (previously called residence) A child can apply for child maintenance for him/herself in certain including shared residence; circumstances (e.g. for university education). ■ where and when the child will spend time with another parent (previously called contact); 5.4 Can capital or property orders be made to or for the ■ specific issues, e.g. religion, schooling, change of name; and benefit of a child? ■ prohibited steps, for example prohibiting travel.

Yes; as set out above, the Court can order capital and housing for The Court can also make parental responsibility orders and the benefit of a child. Property orders will only last for the child’s declarations of parentage in relation to a child, as well as parental dependence and will then revert to the payer. The Court does not orders (in surrogacy cases) and adoption orders. consider children are entitled to capital themselves unless there are The Court does not automatically make orders in relation to exceptional circumstances (e.g. severe disability requiring long-life a child following divorce proceedings. We have a “no order care). principle” whereby the Court will only make an order in relation to a child/children where necessary. Both parents retain parental responsibility following a divorce. 5.5 Can a child make a financial claim directly against their parents? 6.5 What factors does the court consider when making Yes, in limited circumstances, i.e. a child over the age of 16 and in orders in relation to children? education. The child’s welfare is the Court’s paramount consideration. A court has regard, in particular, to: 6 Children – Parental Responsibility and ■ the ascertainable wishes and feelings of the child concerned Custody (considered in the light of his/her age and understanding); ■ his/her physical, emotional and educational needs; 6.1 Explain what rights of custody both parents have ■ the likely effect on him/her, of any change in his/her in your jurisdiction whether (a) married, or (b) circumstances; unmarried? ■ his/her age, sex, background and any characteristics of his/ hers which the Court considers relevant; The birth mother and a married father will always have parental ■ any harm which he/she has suffered or is at risk of 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, responsibilities in relation to whom the Court considers the question to be and authority which, by law, a parent has in relation to the child and relevant, is of meeting his/her needs; and his/her property. This means that both parents need to agree the ■ the range of powers available to the Court under the Children important decisions in the child’s life (e.g. education) and one parent Act 1989 in the proceedings in question. needs the other’s agreement to take them out of the jurisdiction, even for a holiday.

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6.6 Without court orders, what can parents do 7.2 If the court is making a decision on relocation of a unilaterally? For example, can they take a child child abroad, what factors are taken into account? abroad? Relocation applications (or “leave to remove” applications) Without a court order, a parent cannot take a child abroad without are subject to the welfare principle (s1(1) Children Act 1989) the consent of the other parent with parental responsibility. Any which dictates that the child’s welfare is the Court’s paramount significant decisions in relation to the child’s upbringing will need consideration. to be taken by both parents together, or in default of agreement, by Until recently, the leading authority on relocation was the case of the Court. Payne [2001] EWCA Civ 166. Under this precedent the Court considered the following: 6.7 Is there a presumption of an equal division of time ■ the welfare of the child; between separating or divorcing parents? ■ whether the application was genuine; and England & Wales ■ the impact on the applicant of a refusal. There is no presumption of an equal division of time, but there is a presumption that the child will spend time with both parents. The Court in Re TC and JC (Children: Relocation) [2013] EWHC 292 (Fam) took the opportunity to consolidate the guidance on the Court’s approach to relocation applications: 6.8 Are unmarried parents treated in the same way as ■ the only principle to be applied when determining a relocation married parents when the court makes orders on application is that the welfare of the child is paramount and separation or divorce? outweighs all other considerations; ■ the guidance given in previous case law is valuable and Yes, assuming the parents both have parental responsibility. helps the judge to identify which factors are likely to be most important; 6.9 Is a welfare report prepared by an independent ■ the guidance is not confined to an application from the professional or is the decision taken by the Judge primary carer and can be applied in all relocation cases alone? If so, does the child meet the Judge? should the judge deem it appropriate; and ■ the following key questions should be asked: A welfare report is prepared, if ordered by the Court, by a court- 1. Is the application genuine and not motivated by a desire to appointed social worker (usually from the organisation CAFCASS, exclude the “left behind” parent from the child’s life? the Children and Family Court Advisory and Support Service). The 2. Is the application realistically founded on practical CAFCASS officer (or independent social worker) will meet the proposals that are both well-researched and investigated? child and report to the Court. A child can meet a judge, but it is rare. 3. What would be the impact on the applicant of a refusal of their realistic proposal? 6.10 Is there separate representation for children in your 4. Is the “left behind” parent’s opposition motivated by jurisdiction? genuine concern for the child’s welfare or is it driven by an ulterior motive? Yes, it is available, but not in most cases. 5. If the application is granted, what is the extent of the detriment to the “left behind” parent and their future relationship with the child? 6.11 What methods of dispute resolution are available to resolve disputes relating to children? 6. To what extent would that detriment be offset by the development of the child’s relationship with their extended family or homeland upon relocation? Court, mediation, arbitration and non-legal routes such as family therapy are available to help parties resolve disputes. The Courts Three recent Court of Appeal cases, Re K [2011] EWCA Civ 79, encourage mediation in children cases. Re F [2012] EWCA Civ 1364 and Re F [2015] EWCA Civ 882, have clarified the Court’s approach. The focus must be onthe child’s best interests having regard to court guidance (i.e. the 7 Children – International Aspects guidance set by Payne) but such guidance and the factors set out are not presumptions but part of the overall welfare analysis. The second Re F [2015] held that there is a need for the Court to carry 7.1 Can the custodial parent move to another state/ out (1) a holistic comparative balancing exercise of the realistic country without the other parent’s consent? options before the Court including the plans of both parents, and (2) a proportionality evaluation in respect of the interference with No, the custodial parent cannot remove a child from the jurisdiction the established family life the children had with the other parent (so without either the prior written consent of each person with parental taking into account that the effect of an international relocation is responsibility or a court order granting permission (s13(1)(b) such that the Article 8 rights of a child are likely to be infringed). Children Act 1989). In England and Wales, particularly in cases where there is a shared However, the custodial parent (i.e. the person named in a Child residence arrangement, the Courts are therefore increasingly looking Arrangements Order as the person with whom the child lives) can closely at the impact on the child of the reduced time with the left remove the child from the jurisdiction for a period of less than one behind parent. As such, it is now more difficult than in previous month without the other parent’s consent (s13(2) Children Act years for applicants to be successful in relocation applications. 1989).

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The UK is a member of the EU and signatory to Brussels II, and 7.3 In practice, how rare is it for the custodial parent to be in cases of child abduction between England and Wales and other allowed to relocate internationally/interstate? European countries, the provisions of Brussels II are used (they are similar to the provisions of the Hague Convention but with more A study in 2012 by Dr. Rob George found that applications for limited defences). international relocation had a success rate of 66.7% (where 95% of the applications in the study were brought by mothers who, in the majority of the cases, were fairly clearly the child’s primary carer). 8 Overview The research also demonstrated the following: ■ the extent to which the child spends overnight time with 8.1 In your view, what are the significant developments in both parents was important, with applications less likely to family law in your jurisdiction in the last two years? succeed where the child spends frequent overnight time with

England & Wales both parents; ■ An increasing number of self-represented parties (following ■ where the applicant was in a new long-term relationship, they the withdrawal of most legal aid) at a time when there have had a higher chance of succeeding; and been significant financial cuts in the Courts. This has had the ■ the greater the proposed distance of the relocation, the less effect of an increase of people (who can afford it) choosing likely it was that the application would succeed. “private judging” and arbitration, and for those people who cannot afford legal advice, representing themselves at court. However, as decisions on relocation are made on a case-by-case basis through analysis of the welfare checklist, the guidance (see ■ Following the UK Referendum in June 2016 to come out question 7.2) should not be applied rigidly and the likelihood of of Europe, there has been significant focus on the UK’s success depends on the individual facts of each case. relationship with the rest of Europe in terms of family law in the future following Brexit (see chapter 3 on Brexit and family law). There is also a concern that, as a result of the 7.4 How does your jurisdiction deal with abduction focus and resources utilised on Brexit, other family law cases? For example, is your jurisdiction a party to the reform will be postponed. Hague Convention?

8.2 What are some of the areas of family law which you England and Wales is a party to the Hague Convention on the Civil think should be looked into in your jurisdiction? Aspects of International Child Abduction which is incorporated into domestic law by the Child Abduction and Custody Act 1985. ■ There is gathering pressure to bring in “no fault” divorce so The same act gives the Court the jurisdiction to: that parties can get an immediate divorce without having to ■ order that a welfare report be prepared by the Children and accuse the other of adultery or bad behaviour (see question Family Court Advisory and Support Service (CAFCASS) or 1.2 above). This is particularly so after the recent decision a local authority (s6); of the Supreme Court in Owens v Owens [2018] UKSC 41, ■ declare that a child’s removal from the UK was wrongful where Mrs Owens was denied her divorce. (s8); ■ The law for cohabitants should also be reformed, as cohabitees ■ recognise and enforce the custody decisions of other countries have very few rights when they separate from their partner – (Part II); and many cohabitees believe incorrectly that they automatically ■ make wide-ranging interim orders against any person who the obtain rights by living with someone for many years. Court has reason to believe may have relevant information, ■ Pre-nuptial agreements – there is nothing in our statute to disclose this information in an attempt to find out the that means that pre-nuptial agreements are automatically whereabouts of a child (s24A). enforceable and the Courts retain significant discretion as to The Hague Convention is used between England and Wales and whether the terms will be enforced on divorce. Like other areas of finance on divorce, and, with an increasing number non-EU countries who have signed up to the Convention. of self-represented persons due to the withdrawal of legal The Child Abduction Act 1984 created the criminal offence of child aid, there are increasing calls for a reform of the approach to abduction where a person connected with a child removes or sends finances on divorce to make it simpler and less discretionary. that child out of the jurisdiction without the appropriate consent. If convicted, the offending party is liable for a fine and/or imprisonment for a term not exceeding six months (summary conviction) or imprisonment for a term not exceeding seven years (conviction on indictment).

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Charlotte Bradley Kingsley Napley LLP Knights Quarter 14 St John’s Lane London EC1M 4AJ United Kingdom

Tel: +44 20 7814 1200 Email: [email protected] URL: www.kingsleynapley.co.uk

Charlotte 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 England & Wales (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 The International Comparative Legal Guide to: Family Law and a 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 “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 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 16 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 “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”.

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France

Diane Sussman Diane Sussman

1 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.? Divorce may be pronounced on the grounds of: ■ mutual consent (uncontested divorce). This needs the The French court first applies the rules of Regulation (EC) agreement of both parties on the principle of divorce and all its consequences; 2201/2003 (“Brussels II bis Regulation”) which determines the jurisdiction of an EU Member State in matters relating to divorce on ■ acceptance of the principle of the breakdown of the marriage. the following grounds: The spouses agree on the principle of the divorce but disagree on matters related to children and ancillary relief, which are ■ habitual residence of spouses; dealt by the family judge; ■ last habitual residence of spouses, insofar as one of them still ■ definitive alteration of the bond of marriage. It is automatically resides there; pronounced by the court if one spouse establishes two years ■ habitual residence of the respondent; of separation without reconciliation at the time of lodging ■ in the event of a joint application, habitual residence of one the petition for divorce (this is the second step of the divorce spouse; process, cf. question 1.4 below); and ■ habitual residence of the applicant who resided there for at ■ fault. It is pronounced when a party establishes facts which least a year immediately preceding the application; constitute a serious or renewed violation of the duties of marriage which render marital life unbearable. ■ habitual residence of the applicant who resided there for at least six months immediately preceding the application and is either a national of the Member State in question; or 1.3 In the case of an uncontested divorce, do the parties ■ nationality of both spouses or, in the case of the United need to attend court? Kingdom and Ireland, domicile of both spouses. Case law defines habitual residence as the country where a party The law changed in November 2016 on the subject of uncontested has fixed his permanent or habitual centre of his interests. This is a divorces. Mutual consent divorces filed post-January 1 2017 are no question of fact. longer judicial but contractual processes, except in cases where a child asks to be heard by the judge or a spouse is under guardianship If no EU jurisdiction is designated by the Brussels II bis Regulation, measures. the French court shall have jurisdiction according to French internal rules, which are mainly based on the French citizenship of petitioner Parties no longer need to attend court as this private agreement is or defendant (sections 14 and 15 of the Civil Code). countersigned by the spouses’ lawyers and registered by the French notary who records the latter after a formal control. Even though the French court has jurisdiction to pronounce the divorce, its jurisdiction regarding ancillary matters is not automatic. More precisely, once the lawyers have drafted the convention, they In relation to: send it to each of their clients by registered post. The clients are ■ parental responsibility, the Brussels II bis Regulation is then authorised to sign the convention after a 15-day delay starting applied (articles 8–15); from the date they receive the registered post. The signed agreement is then handed over to the notary who deposits the convention and ■ maintenance obligations, Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of its annexes at the rank of his/her minutes. The notary plays an decisions and cooperation is applied; and essential role as he confers enforceability to the convention once he has controlled the presence of every mandatory mention. ■ the division of assets, French jurisdiction is determined on the ground of the residence of the family or defendant in Practitioners should be very careful if the situation presents any France or the French nationality of one spouse. international element. Indeed, as a consequence of its hybrid character, the Court of Justice of the European Union has recently excluded the judge-free divorce by mutual consent from the Council Regulation of 20 December 2010 implementing enhanced

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cooperation in the area of the law applicable to divorce and legal ■ the absence of fraud: the French court confirms that the separation (“Rome III Regulation”). As a consequence, it affects its petitioner did not fraudulently evade another law. ability to be recognised outside French borders and the possibility to elect French law. Moreover, the convention is not analysed as an 1.7 Does your jurisdiction allow separation or nullity authentic instrument even if the circular explains that by registering proceedings? it, the notary confers authenticity. As a result, the convention is subject to be brought into question according to contract law. Both exist. Therefore, the international circulation of this extrajudicial divorce raises serious difficulties being neither a judgment nor an authentic An application for a decree of judicial separation (“séparation de instrument. corps”) can be lodged if one of the grounds for divorce exists; most of its provisions are similar to the divorces’ provisions. This France This is the reason why practitioners use this new divorce very procedure authorises spouses to live separately. The other duties of carefully in international situations. the marriage remain. The annulment of the marriage shall be obtained: if the essential 1.4 What is the procedure and timescale for a divorce? requirements for the formation are not met (e.g., an error as to the identity of the person or her/his substantial characteristics, Except in the case of a divorce by mutual consent, divorce is duress); in the case of absence of authorisation on the part of the obtained in a two-stage process: legal representative of one spouse (e.g., if they are a minor, etc.); ■ Interim measures step. The applicant lodges a divorce request in the case of non-respect of the minimum age to marry; in the case first at the local family court and after a preliminary hearing of bigamy; or in the case of incest. The requirement of consent is where the presence of the parties is required, an interim order subject to a wide interpretation; as a consequence, the French judge is delivered where the family affairs judge mainly: authorises may pronounce the nullity if, on the one hand, the consent is vitiated the spouses to live separately; determines custody and and, on the other hand, if one spouse seeks only to get a visa through visitation rights over the children during the procedure; sets the marriage. This is a matrimonial intention default. temporary maintenance for the impoverished spouse and the children; and authorises one spouse to stay in the matrimonial home. 1.8 Can divorce proceedings be stayed if there are ■ Divorce step. One spouse lodges the divorce petition up proceedings in another country? to 30 months after the temporary order and the judge: pronounces the divorce; states once more the custody and The process of staying the French divorce procedure depends on the visitation rights over the children, and the maintenance for foreign jurisdiction in which proceedings were first started: the children; determines the financial support to be paid for ■ If the applicant first started proceedings in a European Union the “impoverished spouse” (compensatory allowance); and country. The French judge informed of this other petition proceeds to the division of assets in accordance with the is obliged to stay its proceedings until such time as the matrimonial property regime of the parties. jurisdiction of the first jurisdiction where proceedings were The government is currently in the process of discussing a change of first started is established, and once established, is obliged to civil procedures, which will affect family procedures. This change decline jurisdiction in favour of that court (article 19 of the of law should occur in the coming months, in favour of a much Brussels II bis Regulation). quicker process. The current project intends to suppress the interim ■ If the applicant first started proceedings in a non-European measures step unless asked by the parties to the judge. Union country and no international convention is applied, the defendant is entitled to apply to stay proceedings before the French court until either jurisdiction orders its decision 1.5 Can a divorce be finalised without resolving other (international lis pendens). The French family judge has no associated matters? For example, children and obligation to stay proceedings or deny its jurisdiction and finances. will scrutinise all the connecting factors of the case with France and the other country and will check that the foreign No, except in cases where the French court has no jurisdiction on order can be recognised in France once it has been rendered. these issues. 2 Finances on Divorce 1.6 Are foreign divorces recognised in your jurisdiction?

If a divorce is ordered in an EU Member State (except Denmark): 2.1 What financial orders can the court make on divorce? the EU decision is automatically recognised, with some exceptions (articles 21 and 22 of Brussels II bis Regulation). The interim order sets interim monthly maintenance for the impoverished spouse. If a divorce is ordered in a non-EU Member State: in the absence of a specific bilateral or multilateral international convention The final decree of divorce: regarding the recognition of foreign judgments, foreign divorces are ■ determines the compensatory allowance to be paid for recognised in France through a specific proceeding, as long as the the impoverished spouse (“prestation compensatoire”), following conditions are satisfied: if needed. This allowance aims to compensate, as far as possible, the disparity that the breakdown of the marriage ■ the jurisdiction of the foreign court: there shall be strong creates in the respective standards of living; and connection factors of the case with the foreign jurisdiction, and the French court will not have exclusive jurisdiction over ■ orders the division of assets in accordance with the property the case; regime assets of the parties and appoints a notary to divide the properties. ■ the compatibility of the foreign judgment with French “public policy”: this provision includes the requirement of a fair process and also the control of the foreign order; and

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Division of assets is ordered on the basis of the matrimonial property 2.2 Do matrimonial regimes exist and do they need to be regime of the spouse. addressed by the court on divorce? Is there a default regime? It shall be underlined that article 270 of the Civil Code allows judges to deny such prerogative to the spouse in (in faulty divorces with particularly serious circumstances or in consideration of a short As in many countries of continental Europe, France applies duration of the marriage). matrimonial property regimes and these must to be addressed by the court upon divorce. The French default regime is that of community property. 2.4 Is the position different between capital and maintenance orders?

France France ratified the 1978 Hague Convention concerning the law applicable to the matrimonial property regime. Therefore, the French Compensatory allowance is generally a capital (the idea is to make court applies the law designated under the Convention (French or a clean break). It can take the form of a lump sum, allocation of other). In the case that the parties make no positive choice of marriage an asset in ownership, usufruct or the right to use an asset or its regime upon marriage contract and do not elect a marriage regime at a usufruct. If the debtor cannot afford the payment of a capital, the later date, there is a default rule which applies the law of first place of judge shall allow him/her to pay this capital in instalments, which marriage (article 4), which can be superseded either by later positive should not exceed eight years. election of regime, or through a substantial period of time of residence (10 years) or shared residence in a new country (article 7). Very exceptionally, it can take the form of a lifetime rent when the age or state of health of the creditor does not allow him or her to The Council Regulation 2016/1103 implementing enhanced attend to his or her own needs. cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes shall apply from 29 January 2019 in the Member 2.5 If a couple agrees on financial matters, do they need States which participate (among which France is included). to have a court order and attend court? ■ About jurisdiction: article 5§1 sets that a court of a Member State seized to rule on divorce, legal separation or marriage If the spouses agree on all issues of divorce, they no longer need annulment, has jurisdiction on matters of the matrimonial to attend court (cf. question 1.3 above). All the financial issues are property of the spouses. included in the agreement lodged at the rank of the minutes of a ■ About applicable law (which shall be the same for both notary. immoveable and moveable property): article 22 authorised In cases where there are still pending issues to be dealt by the court spouses to designate or change the law applicable on this matter (for example, children), they only need to exchange an affidavit on and article 26 determines the applicable law in the absence their point of agreement, and do not need to attend court. An order of choice by the parties between the spouses’ first common habitual residence after the marriage or common nationality. will be rendered by the court. ■ Recognition: article 36 a decision given in a Member State shall be recognised without any special procedure. 2.6 How long can spousal maintenance orders last and ■ About authentic instruments: (such as matrimonial agreement) are such orders commonplace? article 58 states their same evidentiary effects in any of the Member States. Monthly maintenance awarded by the interim order lasts until the divorce is final; it can be varied in case of change in the income and needs of one spouse in the course of the procedure. 2.3 How does the court decide what orders to make? What factors are taken into account? A compensatory allowance is generally a capital, but if the debtor is unable to afford this, it is commonplace that the judge allows Interim maintenance: there is no specific criteria mentioned in this capital to be paid in monthly instalments, the duration of which the Civil Code. The idea is to maintain the standard of living of should not exceed eight years. This amount cannot be increased or the impoverished spouse, and to achieve a balance between the decreased, even in the case of a substantial change of the financial budgetary needs and the income available to the parties, knowing situation of the debtor. In this case, the debtor shall nevertheless that two households have a greater cost than one. The court will take obtain judicial permission to vary the mode of payment (beyond the into account both spouses’ income and compulsory expenses (, standard eight years). It is due even after the debtor’s death and paid mortgage, rent, etc.). with the succession of the deceased. Compensatory allowance: article 271 of the Civil Code sets out the It is more exceptional that the judge grants a lifetime maintenance. factors which are: It may be decreased (never increased), suspended or suppressed in ■ duration of the marriage; the case of an important change in the resources or needs of either. ■ ages and states of health of the spouses; ■ professional qualifications and occupations; 2.7 Is the concept of matrimonial property recognised in your jurisdiction? ■ consequences of the professional choices made by one spouse during their living together for educating the children and the time which must still be devoted to this education, or for The matrimonial property regime determines the rules regarding the favouring his or her spouse’s career to the detriment of his or powers and ownership of each spouse on assets, acquired before or her own; after the marriage. ■ estimated or foreseeable assets of the spouses, both in capital When the marriage breaks down, the treatment of property acquired and income, after liquidation of the property matrimonial before or built up during the marriage depends on the matrimonial regime; and property regime of the couple: ■ respective situations as to retirement pensions.

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■ in separation of property regime, each spouse remains the concept is recognised in France and foreign trusts shall be the exclusive owner of his property and income, whether recognised by French courts providing that their provisions: comply acquired before or during the marriage; with the law of the country of its creation; are in agreement with ■ in community of property regime (the default regime), assets French public policy; and do not violate the reserve portion of an acquired during the marriage (“acquêts”) are shared 50/50 estate. and assets acquired by one spouse through inheritance or Moreover, on the one hand, French law has acknowledged “la legacy during the marriage or any assets acquired before the marriage (“biens propres”) belong exclusively to this spouse; fiducie”, an institution that looks like a trust, and on the other hand and also allows French lawyers to act as trust protectors for foreign trusts. ■ in universal community regime, all assets acquired before or during the marriage are common assets, whatever their France origin. 2.11 Can financial claims be made following a foreign Post-interim order or separation assets are excluded from the divorce in your jurisdiction? If so, what are the division of assets. grounds?

If a French judge has jurisdiction as per Regulation (EC) 4/2009 2.8 Do the courts treat foreign nationals differently on on maintenance issues, he/she could state on financial claims in the divorce, if so, what are the rules on applicable law? following circumstances: Can the court make orders applying foreign law rather than the law of the jurisdiction? ■ a foreign court has jurisdiction on divorce case but not on maintenance issues; They are not treated differently as the foreign citizenship of a spouse ■ a foreign divorce decree cannot be recognised in France is not a relevant factor for applicable law. because it is contrary to French public policy; or French law is not automatically applied by the French judge. The ■ a foreign financial order needs to be varied. judge shall apply a foreign law, depending on the international If no division of properties was ordered in the foreign divorce factors of the case (mainly habitual residence of the parties but also decree, a petition to divide assets shall be lodged in France if the even subsidiary, common citizenship of the parties). The following defendant is habitually resident in France or one of the spouses is a texts determine the applicable law: French citizen. ■ cause of divorce or legal separation: Regulation (EU) n°1259/2010 (“Rome III”) (in case the couple did not agree 2.12 What methods of dispute resolution are available to in advance which law to apply, the judge applies article 8 resolve financial settlement on divorce? E.g. court, which designates firstly the law of the habitual residence of mediation, arbitration? the couple at the time the court is seized); ■ parental responsibility: the 1996 Hague Convention on Parties are allowed to settle their divorce through mediation or Parental Responsibility matters (article 15 mainly designates collaborative law. The result of this process can be subject to forum law and so French law, with some exceptions); ratification by the court. ■ maintenance issues: the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations mainly designates The use of arbitration is prohibited in the settling of family law the law of the habitual residence of the creditor (article 3); issues, except for the winding up of matrimonial assets. and ■ division of assets: the 1978 Hague Convention (cf. question 3 Marital Agreements 2.2 above).

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 interim order authorises one spouse to stay in the matrimonial home. Mostly, it is awarded to the spouse with custodial rights in Strictly speaking, there is no equivalent in France to pre- and order to maintain the children there. In the case the matrimonial post-nuptial agreements where parties can, in advance, organise home is a jointly-owned property or the property of the other parent, in a contract all the financial consequences of their divorce, the interim order specifies whether this occupation is gratuitous or compensatory allowance and division of their assets. not. Under French case law, compensatory maintenance cannot be In the divorce decree, in cases where the spouse did not settle decided in advance and a French court would not enforce an ahead the treatment of the matrimonial home, the court may grant agreement on that matter if French law on maintenance issues is compensatory allowance by the allocation of the matrimonial home applied. in ownership or of a right of use, dwelling or usufruct, temporary or for life. If it is the personal property of one spouse only, the The agreement existing in France is the marriage contract which judge shall also give the matrimonial home on lease to the custodial is entered into before the marriage and can be changed during the parent. These solutions are limited to the case where the debtor course of the marriage. It is enforced during the marriage and also owns sufficient assets. when the marriage breaks down and sets out rules regarding the matrimonial property regime and the division of the assets only (cf. question 2.2 above for the applicable law to division of assets 2.10 Is the concept of “trusts” recognised in your under the Hague Convention on the law applicable to Matrimonial jurisdiction? Property Regime 1978 and the Council Regulation June 24 2016). The position of a French court could be different in the case of a Even though France did not ratify the 1985 Hague Trust Convention, foreign marriage agreement, which designated a foreign applicable

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law to maintenance obligations which authorises agreements ■ marriage: the right for same-sex couples to marry has been covering maintenance claim. recognised in France since May 2013, and is governed by sections 74, 202-1 and 202-2 of the Civil Code. The law offers a favor matrimonii since same-sex couples can contract 3.2 Can marital agreements cover a spouse’s financial marriage if two conditions are met: the personal/residence claims on divorce, e.g. for maintenance or law of one of them authorises such union (section 202-1) and compensation, or are they limited to the election of the French public officer is competent (section 74). The latter the matrimonial property regime? is indeed competent to celebrate such union if a minimal link to France is satisfied, for example, if a spouse’s parents have As previously mentioned, French marriage contracts only cover the a secondary house in France. As a consequence, a couple with an Italian and a Brazilian living in Belgium can marry in France matrimonial property regime. France if their parents have a secondary house in Paris. If the parties elect a foreign applicable law (under the Hague Protocol on the Law Applicable to Maintenance Obligations), and the foreign law chosen allows them to sign a contract in advance on the 5 Child Maintenance compensatory allowance, case law is uncertain on the validity of the contract (French judges are reluctant to accept a contract’s validity, especially if said contract states that there shall be no compensatory 5.1 What financial claims are available to parents on allowance). The Cour de cassation recently prohibited (2015) a behalf of children within or outside of marriage? German contract suppressing compensatory allowance considering that it was against French public policy. There is a real uncertainty Each parent, married or unmarried, has a duty to participate in the that the solution would be the same in a contract with an amount of needs of their children proportionally to their resources. the maintenance predetermined. In the case of a separation, any parent with the custodial right is allowed to obtain, in court, child maintenance. Mostly, the claim 3.3 What are the procedural requirements for a marital consists of a monthly allowance or the direct payment by the other agreement to be enforceable on divorce? parent, in whole or in part, of the children’s expenses (school, sport activities, health insurance, etc.). A marriage contract shall be entered into by a notary before the It may also take the form of: the payment of a sum of money to an marriage. It is also possible to change it further (two years later or accredited agency in charge of maintaining, on behalf of the child, sooner if the couple resides abroad and chooses the applicable law). an index-linked annuity; a surrender of assets in usufruct; or an allocation of assets-yielding income. 4 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 cohabitees, which do not have children, have financial claims if the couple separate? What are the Maintenance is calculated on the needs of the children and the grounds to make a financial claim? respective resources of the parents (the “available” income, which is the difference between income and compulsory expenses such as No maintenance or compensatory allowance is due in the case of income/taxes, rent, loans, mortgage, etc.). In the case of a change a separation of cohabitants, unlike in the case of a married couple. in the resources of the parents or the needs of the children, it can There is no support and assistance duty for the other in cohabitation. be varied. Cohabitees are only entitled to palliative civil mechanisms such as Child maintenance is ordered by the family judge. In the case of an the de in rem verso action. In rare cases, compensation can be paid unmarried couple, judicial action is an option. Unmarried parents to the cohabitee who has helped and participated in the evolution of a are not obliged to proceed through court, even though it is highly common business or asset (he will benefit from the increase in value). recommended. On the patrimonial issue, cohabitees are entitled to ask the family judge to order the winding up of the jointly-owned properties. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their 4.2 What financial orders can a cohabitee obtain? children? For example, can a child seek maintenance during university? Aside from exceptions, a cohabitee can only obtain financial order relating to children issues (cf. section 5). Article 371-2 of the Civil Code expressly states that the financial support of parents does not end once the child becomes an adult (at 18 years old in France). A parent is required to provide financial 4.3 Is there a formal partnership status for cohabitants support until the day the child is in a stable situation. Therefore, (for example, civil partnerships, PACS)? parents’ financial support covers university expenses.

France recognises a civil pact of solidarity (PACS) (article 515-1, CC) as a formal partnership status. 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 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 permitted to enter: ■ a civil pact of solidarity (PACS); or

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any arrangement of parents under the condition it protects the best 5.5 Can a child make a financial claim directly against interests of the child. their parents? The court automatically makes orders in relation to child arrangements in the event of a divorce knowing that the principle is Any child who is still studying and is not in a stable situation is that separation has no consequences on the parental responsibility entitled to make a financial claim against their parents. as mentioned above at question 6.1. As far as the described maintenance obligation is concerned (see question 5.3 above), the parent seeks payment in the place of the child against the other parent: legally it is a debt for a third person. 6.5 What factors does the court consider when making orders in relation to children?

However, if a child wishes to act directly in his name against one of France his parents, he can only request a contribution that will cover basic The court’s decision as to custody is based on the paramount criteria needs according to articles 203 and 205 of the Civil Code. of the child’s best interests. The following factors stated in articles 373-2 and 373-2-11 of the 6 Children – Parental Responsibility and Civil Code are taken into consideration: the practice previously Custody followed by the parents; the feelings expressed by the child; the ability of each parent to assume their duties and to respect the rights of the other; eventually, the results of court-ordered 6.1 Explain what rights of custody both parents have medical psychological expert assessments or a social investigation in your jurisdiction whether (a) married, or (b) (conducted by social workers); and any duress or violence, physical unmarried? or psychological, carried out by one parent against the other. Alternate/shared residence often requires that the following Parental responsibility (“autorité parentale”) and custody (“fixation conditions are met: the age of the child; the proximity of parents’ de la résidence”) are two different concepts. Parental responsibility residence; the availability of each parent; and the ability of the covers the rights and duties of each parent towards their child parents to discuss, etc. regarding essential matters such as residence, education, health, religion and so on, whilst custody covers the sole question of the residence of the child (i.e., at which parent’s residence the child shall 6.6 Without court orders, what can parents do live). unilaterally? For example, can they take a child abroad? Separation of parents, married or unmarried, does not, in principle, affect the joint parental responsibility. It is customary for joint Any issue concerning parental responsibility (residence of a child, parental responsibility to continue while one parent is awarded especially in another country, changing of school, major health custody. It is only in rare cases, where the best interests of the child decisions to be made, etc.) shall be a joint decision and in the case require it, that the judge will order a unilateral parental responsibility. of a disagreement, one parent should seek a court order. However, a If separated parents do not reach an agreement regarding custody, the parent is presumed to act upon the other’s agreement for usual acts. court awards custody to one or the other parent, and access/visitation rights to the non-custodial parental. Courts also allow alternate/ shared residence, depending on many factors mentioned in question 6.7 Is there a presumption of an equal division of time 6.5 below. between separating or divorcing parents? In certain cases, courts shall order the supervised access of one There is no such presumption written in French law. The welfare parent under the supervision of a trusted third party or in a designated of the child remains the paramount criteria. Nevertheless, alternate meeting place. residence has been commonly ordered for many years.

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? They are considered adults at the age of 18 years old. Yes, they are. 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 Child-related decisions (parental responsibility, custody, visitation alone? If so, does the child meet the Judge? rights) last until they are 18 years old. However, for teenagers over the age of 15, it is difficult to impose the respect of custodial rights It depends on the case. The judge can take his/her decision alone. if he or she is reluctant to satisfy it. The hearing of a child is not mandatory and in any case must be requested by the child himself and authorised by the judge provided 6.4 What orders can the court make in relation to that the child has a sufficient degree of understanding. children? Does the court automatically make orders in In cases where the judge has no sufficient element, or there is an relation to child arrangements in the event of divorce? allegation that a child presents certain troubles, he/she shall order a social investigation (by social workers or an association specialised The court makes orders regarding parental responsibility, custody, visitation rights and child maintenance. The court shall also ratify

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in family issues), or designate an expert (either a psychiatrist or a The “bureau du droit de l’Union, du droit international privé et de psychologist) who is an independent professional. l’entraide civile” of the Ministry of Justice has been designated as the Central Authority. 6.10 Is there separate representation for children in your Once checked, the request received by the Central Authority is jurisdiction? forwarded to the general prosecutor of the Court of Appeal where the abducting parent resides. The parties are encouraged by the Yes. In cases where a child meets the judge, he is represented by Central Authority to reach an agreement. If mediation fails, the a lawyer appointed by the lawyer’s bar independently from the prosecutor requests an emergency petition for a return to be heard parents’ advisors. before the family judge. It is recommended that the parent hires a

France lawyer, even if not mandatory, especially if the abducting parent raises exception for defence. Prosecutors often think that the case 6.11 What methods of dispute resolution are available to is the parent’s business and do not sharply fight these exceptions. resolve disputes relating to children? Alternatively, the “left-behind” parent may choose to bypass the Central Authority and proceed directly to the court, using an Mediation or collaborative law can be used to resolve disputes emergency procedure. relating to children.

7 Children – International Aspects 8 Overview

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

A custodial parent cannot decide to relocate without the consent The new mutual consent divorce is one of the main developments of of the other parent or the leave of the court, unless the court had the last two years, as previously mentioned. previously awarded unilateral parental responsibility (which is Also, there is currently a profound evolution in the way in which extremely rare as previously mentioned). families process alternative means of resolution of family issues: mediation is rendered mandatory in certain procedures, and the legislator recently voted “procédure participative” (based on a 7.2 If the court is making a decision on relocation of a contract signed by the parties bounding them to collaborate jointly child abroad, what factors are taken into account? and in good faith in the judicial procedure so as to obtain a mutual agreement on some or all issues of their separation – sections 2062 There are no specific rules about relocation abroad in the Civil Code to 2067 of the Civil Code). or any other text. The welfare of the child remains the paramount consideration. Family court will scrutinise the factors mentioned One of the other notable developments in family law in France in question 6.5 and other factors such as the reasons for relocation, concerns surrogacy. French law still prohibits any surrogacy the good faith of the relocating parent, the need for stability and contract and does not acknowledge the validity of any foreign legal the age of the child, the continuity/offer of education, the length of convention (section 16-7 of the Civil Code). However, given that the relocation, the distance to the relation country, the ability of the the European Court of Human Rights has sentenced France since relocating parent to respect the rights of the other, the separation of 2014 for the violation of article 8 of the European convention, siblings, and so on. French courts now admit to transcript birth certificates mentioning the child’s paternal affiliation and his maternal affiliation only towards the surrogate mother. Moreover, recent decisions from 7.3 In practice, how rare is it for the custodial parent to be the Cour de Cassation (July 2017) have opened the possibility for allowed to relocate internationally/interstate? wives to introduce an adoption request to adopt the child. These decisions are currently applied differently by the lower courts which Even though each case is unique and every factor should be contributes to the climate of uncertainty surrounding the concrete investigated, it is difficult to obtain a positive decision of relocation right for the intended mother to adopt the child. as family courts often consider that the loss of relationship with the non-relocating parent is contrary to the welfare of the child. 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? 7.4 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the As previously mentioned, the issue of the international recognition Hague Convention? of the French mutual consent divorce, which is a private divorce, should be looked into. France ratified the Hague Child Abduction Convention. French case law is in accordance with the guide of good practice of The Hague Convention.

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Diane Sussman Diane Sussman 11 rue Guénégaud 75006 Paris France

Tel: +33 1 42 21 41 99 Email: [email protected] URL: www.avocat-sussman.fr 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 IAFL (International Academy of Family Lawyers) and FABA (French American Bar Association). She is fluent in English and holds a Postgraduate Diploma in North American Commercial Law from University Paris 1 – Pantheon Sorbonne.

Diane Sussman

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.

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Germany

Delerue Sharma Stefanie Sharma

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

1.1 What are the grounds of jurisdiction for divorce The application for divorce must generally be lodged at the proceedings? For example, residence, nationality, local family court (“Familiengericht”). The applicant has to be domicile, etc.? represented by a lawyer. There is no set timescale. How long the divorce proceedings take depends on the issues involved. Jurisdiction to deal with a divorce is, in most cases, determined by EC Regulation No. 2201/2003 (“Brussels II bis”). According to 1.5 Can a divorce be finalised without resolving other this, jurisdiction shall lie with the courts of the Member State: associated matters? For example, children and a. in whose territory: finances. i. the spouses are habitually resident; ii. the spouses were last habitually resident, insofar as one of Yes. However, if other issues have been joined to the proceedings, them still resides there; the court will generally only grant a divorce once all other issues have been resolved (or have been detached from the divorce proceedings). iii. the respondent is habitually resident; iv. in the event of a joint application, either of the spouses is habitually resident; 1.6 Are foreign divorces recognised in your jurisdiction? v. the applicant is habitually resident if he or she resided there for at least a year immediately before the application A decision made in a Member State of the European Union (unless was made; or issued in Denmark) is automatically recognised in Germany under vi. the applicant is habitually resident if he or she resided EC Regulation No. 2201/2003 (“Brussels II bis”), i.e. without there for at least six months immediately before the separate recognition proceedings. For decisions made in non- application was made and is either a national of the Member States, there are special requirements for recognition. Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there; or b. of the nationality of both spouses or, in the case of the United 1.7 Does your jurisdiction allow separation or nullity proceedings? Kingdom and Ireland, of the “domicile” of both spouses. If none of the Member States have jurisdiction under this regulation, There are no special separation proceedings. A marriage can only be the German courts have jurisdiction if, for example, at least one annulled by a court judgment following an application. party is German or both parties are habitually resident in Germany.

1.8 Can divorce proceedings be stayed if there are 1.2 What are the grounds for a divorce? For example, is proceedings in another country? there a required period of separation, can the parties have an uncontested divorce? Yes, they can. The only ground for divorce recognised by German law is the breakdown of the marriage. There is a irrefutable assumption that a 2 Finances on Divorce marriage has broken down if the parties have been living separated for a year and both want to get divorced. 2.1 What financial orders can the court make on divorce?

1.3 In the case of an uncontested divorce, do the parties need to attend court? The court can make the following financial orders on divorce: ■ pension equalisation; Generally, both parties are required to attend a hearing. However, ■ spousal maintenance; a party can be excused from attending if there is a good reason (for ■ child maintenance; and example, if he lives far away). ■ lump sum payment.

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2.2 Do matrimonial regimes exist and do they need to be 2.11 Can financial claims be made following a foreign addressed by the court on divorce? Is there a default divorce in your jurisdiction? If so, what are the regime? grounds?

If the parties have not agreed an alternative in a marriage contract, Yes, if the German court has jurisdiction. The grounds depend on the statutory property regime “community of accrued gains” the applicable law. (“Zugewinngemeinschaft”) applies. Through a marriage contract, the parties can opt for separation of property (“Gütertrennung”), 2.12 What methods of dispute resolution are available to community of property (“Gütergemeinschaft”) or elected resolve financial settlement on divorce? E.g. court, community of accrued gains (“Wahl-Zugewinngemeinschaft”). mediation, arbitration? Germany

2.3 How does the court decide what orders to make? Parties can opt for mediation. It is also possible for the judge in What factors are taken into account? the proceedings to refer the parties to a special judge not involved in the proceedings (“Güterichter”). This judge will try to help The court will only make an order if one of the parties has applied the parties to reach an agreement using all methods of alternative for that specific order. dispute resolution including mediation. However, this judge cannot make a decision.

2.4 Is the position different between capital and maintenance orders? 3 Marital Agreements

Yes, it is. 3.1 Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement 2.5 If a couple agrees on financial matters, do they need is a foreign agreement? to have a court order and attend court? If the agreement is valid, it is enforceable. No, they do not.

3.2 Can marital agreements cover a spouse’s financial 2.6 How long can spousal maintenance orders last and claims on divorce, e.g. for maintenance or are such orders commonplace? compensation, or are they limited to the election of the matrimonial property regime? Spousal maintenance orders are commonplace. They can be open- ended or for a fixed term. Marital agreements can cover a spouse’s financial claims.

2.7 Is the concept of matrimonial property recognised in 3.3 What are the procedural requirements for a marital your jurisdiction? agreement to be enforceable on divorce?

The concept is not known under German law as such. Generally, it needs to be notarised or incorporated into the divorce proceedings (similar to a consent order) to be enforceable.

2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? 4 Cohabitation and the Unmarried Family Can the court make orders applying foreign law rather than the law of the jurisdiction? 4.1 Do cohabitees, which do not have children, have Generally, foreign nationals are not treated differently on divorce. financial claims if the couple separate? What are the The law applicable to the divorce is determined by Article 8 of the grounds to make a financial claim? Rome III regulation unless the parties have made a in accordance with Article 5 of the same regulation. The court can There are no specific rules that deal with financial claims of former make a divorce order applying foreign law if it is applicable. cohabitees. There might be claims under general civil law.

2.9 How is the matrimonial home treated on divorce? 4.2 What financial orders can a cohabitee obtain?

If the parties cannot agree who should live in the matrimonial home, There can only be orders under the general rules of civil law. the court can, on application, determine who should continue living there. 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? 2.10 Is the concept of “trusts” recognised in your jurisdiction? No, there is not.

No, not in the same way as in common law countries.

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4.4 Are same-sex couples permitted to marry or enter 6 Children – Parental Responsibility and other formal relationships in your jurisdiction? Custody

Same-sex couples can enter a registered partnership 6.1 Explain what rights of custody both parents have (“Lebenspartnerschaft”) which is very similar to a marriage. in your jurisdiction whether (a) married, or (b) Since 1st October 2017, same-sex couples can also get married in unmarried? Germany. Existing registered partnerships (“Lebenspartnerschaft”) can be converted into marriages. (a) Under German law, both parents share parental responsibility (“elterliche Sorge”) if they were married when the child was

Germany born or if they get married subsequently. 5 Child Maintenance (b) Unmarried parents can declare in front of a notary or at the youth welfare office (“Jugendamt”) that they wish to take on parental responsibility jointly. Furthermore, the family court 5.1 What financial claims are available to parents on can, on application, order joint parental responsibility. behalf of children within or outside of marriage?

Parents can make claims for child maintenance on behalf of their 6.2 At what age are children considered adults by the children. court?

Children are considered adults by the court at the age of 18. 5.2 How is child maintenance calculated and is it administered by the court or an agency? 6.3 What is the duration of children orders (up to the age The parents’ duty of maintenance is subject to their ability to of 16 or 18 or otherwise)? pay. However, parents’ ability to pay in respect of their children is understood broadly, i.e. it is the achievable income, not merely This depends on the order. the available income that matters. Fundamentally, parents must pay maintenance for their children in proportion to their earning power 6.4 What orders can the court make in relation to and financial circumstances. However, a parent looking after a child children? Does the court automatically make orders in fulfils their maintenance obligation by caring for and looking after relation to child arrangements in the event of divorce? the child. The calculation of the maintenance payable is based on guidelines and charts developed by the regional courts of appeal The most common orders are for parental responsibility (or parts of (“Oberlandesgerichte”) (e.g. “Düsseldorfer Tabelle, Berliner it) or contact. Generally, the court will only make orders in relation Tabelle”). Higher maintenance payments may be due if there is an to children in the event of divorce if the parties make an application increased demand (for example, school fees) or a special need (for for it to do so. example, orthodontic work). It is administered by the court. 6.5 What factors does the court consider when making orders in relation to children? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their The court will consider what is in the best interest of the child and children? For example, can a child seek maintenance therefore look at all relevant circumstances. Unless the child is very during university? small, the judge will generally meet and hear the child.

Parents have a duty to maintain their children. Children are entitled to be maintained if they are incapable of maintaining themselves. 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child Generally, child maintenance has to be paid until the child has abroad? completed professional or vocational training. From the time the child turns 18, generally both parents – even the one with whom If both parents have parental responsibility, all important decisions the child lives – owe monetary maintenance payments according to concerning the child have to be made together. This generally their respective incomes. concerns religion, choice of kindergarten and school, major medical decisions and the question where the child should live. If the child 5.4 Can capital or property orders be made to or for the lives with one parent, this parent can make decisions concerning benefit of a child? daily life by himself. In an emergency, the parent in whose care the child is can make all necessary decisions. Property orders cannot be made and capital orders are not common. Generally, for a trip to another safe and not too distant country, Child maintenance is generally paid on a monthly basis. consent by the other parent is not required. A trip to, for example, Syria, would be a different issue. 5.5 Can a child make a financial claim directly against their parents? 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? Once a child is 18, he or she generally has to claim directly against his or her parents. No, there is not.

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6.8 Are unmarried parents treated in the same way as 7.2 If the court is making a decision on relocation of a married parents when the court makes orders on child abroad, what factors are taken into account? separation or divorce? A parent that wishes to relocate to another country cannot be forced Yes, they are. to stay in Germany. The court will therefore consider whether it is in the best interest of the child to stay with the parent that remains 6.9 Is a welfare report prepared by an independent in Germany or to live with the parent in the other country. The professional or is the decision taken by the Judge court will take all relevant circumstances into account (for example, alone? If so, does the child meet the Judge? reasons for the move, relationship of the child to both parents, wider

family and friends, proposed living and contact arrangements, Germany Generally, the youth welfare office (“Jugendamt”) is involved finances and the wishes of the child). in the proceedings and will give their opinion. Additionally, the court can instruct an independent professional as expert witness 7.3 In practice, how rare is it for the custodial parent to be (“Sachverständiger”). Unless the child is very young, the judge will allowed to relocate internationally/interstate? generally meet the child. It is not uncommon for a parent to be allowed to relocate. 6.10 Is there separate representation for children in your jurisdiction? 7.4 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the In order for the child’s interests to be represented in the proceedings, Hague Convention? the judge can appoint an independent person to represent the child in the proceedings (“Verfahrensbeistand”). This is frequently done. Germany is party to the 1980 Hague Convention on international child abduction. International child abductions are dealt with 6.11 What methods of dispute resolution are available to by specialised family courts across Germany. Proceedings are resolve disputes relating to children? very swift and the return of children to their country of origin is frequently ordered. The court will encourage the parties to find an amicable solution throughout. It can require the parties to attend a mediation 8 Overview information session or seek advice from out-of-court services.

8.1 In your view, what are the significant developments in 7 Children – International Aspects family law in your jurisdiction in the last two years?

7.1 Can the custodial parent move to another state/ The most significant development has probably been that same-sex country without the other parent’s consent? couples can now get married under German law.

If the other parent has parental responsibility (“Sorgerecht”) and 8.2 What are some of the areas of family law which you is exercising his parental rights, the parent that wants to move to think should be looked into in your jurisdiction? another state/country requires his consent. In my opinion, the procedure for divorce should be reconsidered. At the moment, a divorce can only be granted by a court, even if both parties amicably wish for a divorce. Further, the petitioner needs to be represented by a lawyer. Even a straightforward divorce can therefore be a very costly affair.

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Stefanie Sharma Delerue Sharma Knesebeckstr. 30 10623 Berlin Germany

Tel: +49 30 8872 0880 Email: [email protected] URL: www.delerue.de

Germany Stefanie Sharma studied law in Münster und Trier. She holds an LL.M. in Dispute Prevention and Resolution from the University of Westminster, England. She was admitted as Rechtsanwältin in 2000. In 2013, she jointly set up the family law firm Delerue Sharma in Berlin. She lived and worked in London for several years. In 2002, she was admitted as a solicitor.

Delerue Sharma is a specialised family law firm established in 2013. The majority of the firm’s caseload has an international element. Karin Susanne Delerue is regularly named as a leading family lawyer in the prestigious Focus ranking. Stefanie Sharma is also a solicitor (England & Wales).

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Hong Kong Sharon Ser

Withers Philippa Hewitt

jurisdiction, although substantial connection does allow some 1 Divorce flexibility in Hong Kong’s uniquely cosmopolitan population. In addition, it is possible to have a substantial connection with more 1.1 What are the grounds of jurisdiction for divorce than one jurisdiction. This can mean that, even if the court agrees proceedings? For example, residence, nationality, that a party has a substantial connection with Hong Kong, it may not domicile, etc.? be the most appropriate forum if there is another choice. Then the parties become embroiled in a forum dispute. Every party to a divorce in Hong Kong must satisfy the basic Issues as to substantial connection and jurisdictional requirements under Section 3 of the Matrimonial regularly come before the court in Hong Kong and the principles Causes Ordinance Cap 179 (MCO), which states that the court shall were further confirmed in the Court of Final Appeal case of SPH v have jurisdiction in proceedings for divorce if: SA (Forum and marital agreements) [2014] HKFLR 286. (a) either of the parties to the marriage are domiciled in Hong Kong at the date of the petition or application; 1.2 What are the grounds for a divorce? For example, is (b) either of the parties to the marriage are habitually resident in there a required period of separation, can the parties Hong Kong throughout the period of three years immediately have an uncontested divorce? preceding the date of the petition or application; or (c) either of the parties to the marriage had a substantial Under MCO s11, the only ground for divorce in Hong Kong is connection with Hong Kong at the date of the petition or irretrievable breakdown of the marriage. Pursuant to s11A, the application. divorce can only be proven by at least one of the following five In Hong Kong, it is irrelevant where the parties married or their factors: nationality. So long as they can satisfy one of the above, they are (a) the respondent’s adultery; entitled to petition for a divorce or apply for a joint application. (b) the unreasonable behaviour of the respondent; Domicile and habitual residence are well-recognised concepts but (c) the parties have lived apart for a continuous period of one unique to Hong Kong is the ability for a party to claim a substantial year and the respondent consents to the divorce on this basis; connection to Hong Kong by demonstrating to the court that either (d) the parties have lived apart for a continuous period of two party had a sufficient degree of settlement there. A list of factors years, regardless of whether the respondent consents or not; was helpfully given by the Court of Appeal in the case of RI v SSH or [2011] HKFLR 318 which included the past pattern of the parties’ (e) the respondent’s desertion. lives and whether they regard Hong Kong as home for the time being, even if their lifestyle may indicate that they may not take root There is also an option to jointly apply for divorce in Hong Kong. in one place for too long. The court would look at the place of work The sole ground is irretrievable breakdown of the marriage and the of the parties, the location of their assets, if they had a home here, sole fact is one year’s separation by consent. Both parties must sign and whether the children of the family were schooled in Hong Kong. the petition, and all relevant documents. A simple business interest is not sufficient (Z v Z [2012] HKFLR Under MCO s12, a party to a marriage is unable to petition for 346), nor is an ID card or the place of marriage; however, in B v divorce until they have been married for one year. A [2007] HKFLR 138 the wife was deemed to have a substantial The parties can have an uncontested divorce if the respondent files connection with Hong Kong although she had only been there for an Acknowledgment of Service (Form 4) with a court indicating six months because she had arrived fully intending to make it her that he/she has no intention to defend the divorce. Also, if the home for the foreseeable future and the children’s schools were respondent does not file his/her acknowledgment of service within applied for and a deposit paid on an apartment. eight days of service (including the day of service) the petition can More recently, the Court of Appeal in ZC v CN [2014] HKFLR proceed undefended, so long as proper service can be proved. 469 set out a comprehensive and in-depth review of the meaning There are a number of alternatives in respect of service should it of substantial connection and the authorities. Here, substantial prove difficult to serve, including deemed service, substituted connection was not found. The courts have made it clear that it service or application for an order dispensing with service. is not their intention to create a convenient offshore divorce

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

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

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The Court of Final Appeal set out the following five steps: Often the cases involve pre-marital or post-marital property in 1. Identify the assets. which one party is seeking to take out of the marital pool on this 2. Assess the parties’ financial needs. If there are insufficient basis. Also, in Hong Kong, many cases come before the court to assets, an assessment will be made at this point. determine whether an asset which is beneficially owned by one of the parties does in fact belong to that party. It is common for family 3. If there are assets surplus to needs, the court must consider the “sharing principle”. members to put property in the names of their children or parents without the intention of transferring ownership. 4. Considering whether there should be a departure from equality, the court may consider a list of potential and Recent leading cases on this topic include the Court of Final Appeal common “material factors” which include a consideration of decisions in KLK v PLTO Court of Final Appeal 21 of 2013; [2014] the facts including the source of the asset, conduct, length HKFLR 329 and Court of Appeal PW v PPTW (Ancillary relief; of marriage, contributions to the family – both financial and non-matrimonial property) [2015] HKFLR; No. 224 of 2013. Hong Kong non-financial and any claims for compensation. 5. Deciding the outcome weighing up all the considerations, particularly in Step 4. 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? As the Hong Kong Ordinance is so similar to that of England and Can the court make orders applying foreign law rather Wales, in particular s7 MPPO with s25 Matrimonial Causes Act than the law of the jurisdiction? 1973, the case law is also very similar and practitioners in England will be familiar with the cases cited in Hong Kong judgments. No, the courts in Hong Kong do not treat foreign nationals differently. So long as a party can meet the jurisdictional requirements set out under s3 MCO (see question 1.1 above), they can bring an 2.4 Is the position different between capital and maintenance orders? action here. The courts can only apply foreign laws if an application is made for No, the same factors apply to both capital and maintenance orders. a mirror order in Hong Kong; Lexi Fori applies in Hong Kong as in However, capital will be subject to the sharing principle, if needs England & Wales. are covered, but it is less clear in respect of equal sharing of future income. It will depend on the facts as to whether future income 2.9 How is the matrimonial home treated on divorce? can be taken into account: A v B [2016] HKFLR 332. There is no statutory duty in Hong Kong to consider a clean break. The matrimonial home is treated in the same way as any other marital asset in Hong Kong and will form part of the marital asset 2.5 If a couple agrees on financial matters, do they need pool. to have a court order and attend court? The majority of the population in Hong Kong are housed in rented accommodation. There is also a Home Ownership Scheme which If there is agreement between the parties, they must submit their relates to housing for low income families which have been sold to settlement in the form of a consent summons to court for a court order. them for less than the market value. Any order for the transfer of Even if there are no assets and no children, it is advisable to finalise all such properties requires the consent of the Housing Authority and matters and dismiss all claims in a consent order sealed by the court. is subject to the sale restrictions of the Housing Ordinance Cap 283. If the parties have been able to agree on all matters before they issue the divorce petition, or if they are able to agree before the First 2.10 Is the concept of “trusts” recognised in your Appointment, they will never have to attend court. If there is any jurisdiction? dispute as to children or finances, the chances are that they will have to attend either the First Appointment which is the initial hearing in The concept of “trusts” is recognised in Hong Kong. The respect of disputed finances, or the Children’s Appointment if there is development of trusts originated in the need for tax planning to disagreement in respect of the children, or both. mitigate Estate Duty but this was abolished in 2006 with the passing of the Revenue (Abolition of Estate Duty) Ordinance. The law in 2.6 How long can spousal maintenance orders last and relation to trusts in Hong Kong was recently revised in April 2014 are such orders commonplace? with the Trustee Ordinance Cap 29. There are a number of ways in which trusts can become involved Spousal maintenance orders are commonplace in Hong Kong. in divorce proceedings, including where there is a claim under s6 The order for spousal maintenance cannot begin before making an for a variation of settlement or where the trust is a resource of the application for an order and cannot take effect until after decree family. In Hong Kong, all assets, wherever situated, will be subject absolute. The order will last until the death of either of the parties to scrutiny, including trusts. The leading case in Hong Kong where or remarriage, whichever is earlier, unless there is an agreement the trust funds were found to be a resource of the marriage is KLK v between the parties that the order should cease at a certain date or on PLTO Court of Final Appeal 21 of 2013; [2014] HKFLR 329. a certain occurrence (such as permanent cohabitation with another Hong Kong often looks to English case law in respect of trusts in partner). If the periodical payments are to cease on a specified date, divorce. this is more commonly known as a deferred clean break.

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

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(Amendment) Ordinance 2010, Hong Kong courts have had the Mediation is well-established in Hong Kong both privately and power to make orders in respect of financial claims following a as part of the court procedure. All parties who are in dispute foreign divorce. over finances and children must go through the Financial Dispute The grounds for making such an application are set out in Part IIA Resolution procedure and Children’s Dispute Resolution procedure MPPO ss29AA–29AL. They are very similar to the English Part III respectively. This procedure is designed to promote court-assisted Matrimonial and Family Proceedings Act 1984. settlement. An applicant must first ensure that he/she has jurisdiction to make the application. He/she will be excluded if he/she has remarried but 3 Marital Agreements 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 application and 3.1 Are marital agreements (pre and post marriage) Hong Kong enforceable? Is the position the same if the agreement similar jurisdictional hurdles must be cleared as with divorce in is a foreign agreement? respect of domicile, habitual residence and substantial connection. Under s29AF(2), the considerations which the court must take into The Court of Final Appeal in SPH v SA (Forum and marital account are as follows: agreements) [2014] HKFLR 286 held that the principles enunciated (a) the connection that the parties to the marriage have with in the English Supreme Court case of Radmacher v Granatino Hong Kong; [2011] 1 AC 534 represents the law on marital agreements in Hong (b) the connection that those parties have with the place where Kong. The court also held that there would be no need to distinguish the marriage was dissolved or annulled or where they were between pre- and post-marital agreements. legally separated; It was further held in SPH v SA that foreign elements may be (c) the connection that those parties have with any other place relevant to the question whether the parties intended their agreement outside Hong Kong; to be effective, citing the case in Radmacher where the issues were (d) any financial benefit that the applicant or a child of the family governed by English law and the relevance of the German law and has received, or is likely to receive, in consequence of the was that it demonstrated that the intention divorce, annulment or legal separation, by virtue of any of the parties was that they were to be bound by their agreement. agreement or the operation of the law of a place outside Hong Therefore, it would appear that the position is the same if the Kong; agreement is foreign or not but there may be evidence in respect of (e) if an order has been made by a competent authority outside intention which may be relevant as to the weight which should be Hong Kong requiring the other party to the marriage to make given to such agreements. any payment or transfer any property to, or for the benefit of, the applicant or a child of the family: Hong Kong, therefore, follows English law as it develops in this (i) the financial relief given by the order; and area, but there has yet to be a test case concerning the enforceability of marital agreements. (ii) the extent to which the order has been complied with or is likely to be complied with; (f) any right that the applicant has, or has had, to apply for 3.2 Can marital agreements cover a spouse’s financial financial relief from the other party to the marriage under the claims on divorce, e.g. for maintenance or law of any place outside Hong Kong and, if the applicant has compensation, or are they limited to the election of not exercised that right, the reason for that; the matrimonial property regime? (g) the availability of any property in Hong Kong in respect of which an order for financial relief in favour of the applicant Such agreements can cover a spouse’s financial claims on divorce, may be made; including maintenance and compensation. The parties cannot oust (h) the extent to which any order for financial relief is likely to be the jurisdiction of the court and every agreement which a party enforceable; and seeks to enforce will be scrutinised by the Hong Kong courts. (i) the length of time that has elapsed since the date of the There is no matrimonial property regime in Hong Kong. divorce, annulment or legal separation.

Once leave has been granted, the court has power to make the usual 3.3 What are the procedural requirements for a marital financial orders under ss4–6A MPPO set out above. agreement to be enforceable on divorce? The leading case in Hong Kong for Part IIA applications is C v H (Foreign Decree: Part IIA) [2012] HKFLR 199. The facts surrounding the finalisation of the agreement will be material as to how much weight can be placed on the agreement. There must be both procedural and substantive fairness. An 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, agreement will only carry full weight: mediation, arbitration? “if each party had entered into it of his or her own free will, without undue influence or pressure, having all the At present, dispute resolution in Hong Kong comprises court information material to his or her decision to enter into the agreement and intending that it should be effective to govern litigation, mediation and collaborative practice. the financial consequences of the marriage coming to an end Hong Kong does not have a system in place yet for family arbitration … Enforcement of the agreement could be rendered unfair by although from January 2016 there has been a pilot scheme for the occurrence of contingencies unforeseen at the time of the private adjudication. For the time being, private adjudication can agreement or where, in the circumstances prevailing at the only be for financial disputes, not matters involving children or the time of separation, one partner would be left in a predicament divorce itself. The scheme is consensual and parties agree to be of real need while the other enjoyed a sufficiency.” (Para. 34 bound by the decision of the private adjudicator. SPH v SA.)

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The parties should finalise the agreement within 28 days before the The law in respect of children of married parents is found in MPPO. marriage. This is not a rule but an indication that both parties had The law in respect of children of unmarried parents is found in the sufficient time to consider their positions before the wedding. The Guardianship of Minors Ordinance Cap 13 (GMO). parties should also both sign the document as a deed and if there is The court can make financial provision orders for children of married a language element, a translator should be present. There should be parents under s5 MPPO for periodical payments, secured periodical independent legal advice on both sides. payments and lump sum, which can be payable in instalments. Under s6 MPPO, the court can order a property adjustment order in 4 Cohabitation and the Unmarried Family favour of a child and the jurisdiction of the court is the same as that relating to an order in favour of a spouse. The court can make financial provision orders for the children of

Hong Kong 4.1 Do cohabitees, which do not have children, have unmarried parents under s10(2) GMO as follows: financial claims if the couple separate? What are the (a) an order requiring payment to the applicant by the parent or grounds to make a financial claim? either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non- There is no right under matrimonial legislation for a cohabitee to recurring needs of the minor or for the purpose of enabling make a financial claim in Hong Kong if they separate. The party any liabilities or expenses reasonably incurred in maintaining must fall back on the remedies available to those arising out of the the minor before the making of the order to be met, or for general laws of, e.g., contract (if any contract has been entered into both, as the court thinks reasonable having regard to the to govern the parties’ rights), or property, e.g., contribution to the means of that parent; purchase price or loan repayments on a property may give rise to (b) an order requiring payment to the applicant by such parent a beneficial interest and/or a right to live in the property, as may a or either of such parents of such periodical sum towards common intention by the parties in that regard, even if the property the maintenance of the minor as the court thinks reasonable is registered in the other party’s name. having regard to the means of that parent; (c) an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of 4.2 What financial orders can a cohabitee obtain? such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that A cohabitee in Hong Kong does not have a right to apply for financial parent; orders other than as an applicant in the civil courts mentioned above. (d) an order requiring the transfer to the applicant for the benefit The position is different if there are children of the relationship. In of the minor, or to the minor, by such parent or either of such that case, in addition to the financial provision set out in question parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court 5.1 below, the parent who has the care and control of the children thinks reasonable having regard to the means of that parent; can apply for a carer’s allowance. This is a monthly sum which is and payable to compensate the carer for any restriction in employment (e) an order requiring the settlement for the benefit of the minor, as a result of looking after the children. The courts in Hong Kong to the satisfaction of the court, of such property, being have made it clear that such an allowance cannot be as generous to property to which such parent or either of such parents is so a cohabitee as to a spouse. The leading case is WGL v ASB (Child entitled, as the court thinks reasonable having regard to the maintenance under the GMO) [2013] HKFLR 391. means of that parent. See the Court of Appeal case of IDC v SSA (Lump sum for children 4.3 Is there a formal partnership status for cohabitants of unmarried parents) [2014] HKFLR 267. (for example, civil partnerships, PACS)?

5.2 How is child maintenance calculated and is it No, there is not. administered by the court or an agency?

4.4 Are same-sex couples permitted to marry or enter There is no agency in Hong Kong and child maintenance is assessed other formal relationships in your jurisdiction? by the court bearing in mind the factors set out in s7(2) MPPO as follows: No, they are not. (a) the financial needs of the child; (b) the income, earning capacity (if any), property and other 5 Child Maintenance financial resources of the child; (c) any physical or mental disability of the child; (d) the standard of living enjoyed by the family before the 5.1 What financial claims are available to parents on breakdown of the marriage; and behalf of children within or outside of marriage? (e) the manner in which he/she was being and in which the parties to the marriage expected him/her to be educated, The children of parents within and outside of marriage are treated “and so to exercise those powers as to place the child, so far as it differently, albeit the overarching consideration for the courts is the is practicable … in the financial position in which the child would welfare and best interests of the child irrespective of the marital have been if the marriage had not broken down and each of those status of his/her parent. parties had properly discharged his or her financial obligations and responsibilities towards him”.

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arrangements for the child are the best that can be achieved under 5.3 For how long is a parent required to pay child the circumstances) defines a child of the family to whom the section maintenance or provide financial support for their applies as being a minor child who is below the age of 16 years children? For example, can a child seek maintenance or who is receiving instruction at an educational establishment during university? or undergoing training for a trade, profession or vocation. This legislation is currently under review. The usual order in respect of children’s maintenance is that the order should continue until the child reaches 18, or completes his/her full- time education, whichever is later. 6.4 What orders can the court make in relation to children? Does the court automatically make orders in Under s10(1) MPPO, the court cannot make an order in favour of a relation to child arrangements in the event of divorce? child who has reached 18, but under s10(3) an order can be made if: (a) that child is, or will be, receiving instruction at an educational Hong Kong The court can make orders for joint or sole custody, care and control establishment or undergoing training for a trade, profession or and access. “Custody” in Hong Kong means the right to make vocation, whether or not he/she is also, or will also be, in gainful important decisions on behalf of the child, for example in respect of employment; or (b) there are special circumstances which justify education, health and religion. The non-custodial parent can always the making of the order or provisions (for example, if the child is be heard on these issues on his/her application to the court. “Care suffering from a disability). and control” is the day-to-day care of the children and “access” There are similar provisions for children of unmarried parents under comprises the arrangements which ensure the children’s right the GMO s12A(3). to contact with the non-custodial parent. The leading case is the Court of Appeal case of PD v KWW (Child: Joint Custody, care and 5.4 Can capital or property orders be made to or for the control) [2010] HKFLR 184. The courts will occasionally make an benefit of a child? order for shared care if that is the agreement between the parties. The court will make an order in respect of children. There is Yes, please see question 5.1 above. currently no provision for “no order” to be made in the Hong Kong courts. If there are children, the court must also make a s18 declaration (see question 1.5). 5.5 Can a child make a financial claim directly against their parents? 6.5 What factors does the court consider when making Yes, it is possible for a child to make a claim against his/her parents orders in relation to children? if he/she has a guardian ad litem to make the application on his/her behalf. The court must regard the best interests of the child as the first and paramount consideration (s3 GMO and s48 MCO). With this in mind, the court must take into account the views of the child, 6 Children – Parental Responsibility and having regard to his/her age and understanding, and “any material Custody information” including any social welfare report. In Hong Kong, there is not a list of factors which the courts 6.1 Explain what rights of custody both parents have must regard, but in practice the courts do look at a list of factors in your jurisdiction whether (a) married, or (b) recommended by the Law Reform Commission which is based on unmarried? the English Children Act 1989, and which includes some elements of the Australian Family Law Act. Such factors include the child’s (a) Both parents in a marriage have equal rights of custody. physical, emotional and educational needs, the likely effect on him/ (b) Under s3(1)(c) GMO, only the mother has rights of custody her of any change in circumstances, his/her age, maturity, sex, social where the parents are unmarried. For the father to gain equal and cultural background, any harm which he/she has suffered or is rights, he must make an application to the court pursuant to at the risk of suffering, the capability of his/her parents to meet s3(1)(d). his/her needs, the nature of his/her relationship with each parent and the attitude to the child and the responsibilities of parenthood 6.2 At what age are children considered adults by the demonstrated by each of the parents. court? 6.6 Without court orders, what can parents do Under s3 of the Interpretation and General Clauses Ordinance Cap unilaterally? For example, can they take a child 1, a child is defined as a person who has not yet attained 18 years abroad? of age. If there are no proceedings before the court, the parents can move freely with their children. Upon the commencement of proceedings, 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)? however, all children of the family fall within the jurisdiction of the court and if one parent wishes to remove the child from Hong Kong, consent of the other party is required. Once a custody order Under s19(1) MPPO, the court can make an order for custody for a has been made, there will be a restriction on the removal of the child of the family who is under the age of 18. There is no specific child from Hong Kong without leave of the court, unless the parent mention in the GMO and therefore the definition under Cap 1 is removing the child files a written undertaking to return the child adopted. to the jurisdiction and the other parent consents in writing to the Unfortunately there is some inconsistency in the MPPO, as removal. s18(5)(a) (which requires the court to be satisfied that the

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of Hong Kong, consent of the other parent is required. There is 6.7 Is there a presumption of an equal division of time also a requirement to obtain an order for leave for a child to be between separating or divorcing parents? permanently removed, or in the event that the child has already left, that leave be given allowing him/her to remain permanently outside There is no presumption of an equal division of time, although the the jurisdiction, whether or not by consent. courts recognise that children normally benefit from access to both parents. The court will look at all the factors and decide what is in the children’s best interests given their education and commitments. 7.2 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 There are no statutory guidelines in respect of factors a court should married parents when the court makes orders on Hong Kong take into account, but the welfare of the child is always paramount. separation or divorce? After that, the court will normally consider the reasonable proposals of the parent wishing to leave, scrutinising whether there is a Similar provisions apply under the GMO and the MPPO in respect of genuine motivation for the move and not to bring contact with custody although, as noted above, the father of an illegitimate child the other parent to an end. The arrangements for the child have will have to make an application under s3(1)(d) to be recognised as to be well set out and practical. The effect on the primary carer is having equal rights to the mother. important in Hong Kong as part of the welfare of the child principle. The effect on the parent left behind is also important and the court 6.9 Is a welfare report prepared by an independent will carefully consider continuing contact. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 7.3 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? Normally, the judge will be guided by the social welfare report prepared by an officer of the Director of Social Welfare as the “eyes In practice, primary carers can normally leave Hong Kong if the and ears” of the court. However, such a report is only to assist the arrangements are suitable for the child. The Hong Kong courts see a judge and there is no presumption that any recommendation in the number of such applications each year involving expatriates seeking report will be followed by the judge. The judge can meet the child to go “home”. Increasingly, however, if the parenting is deemed and in 2012 the Chief Justice produced a helpful guidance note to to be shared, the courts may not allow the child to permanently assist judges should there be a judicial meeting. This note covers relocate if the children were benefitting from the shared care. whether there should be a meeting, the factors a judge should bear in mind and the procedure to follow. 7.4 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the 6.10 Is there separate representation for children in your Hague Convention? jurisdiction? Hong Kong is a signatory to the Hague Convention and the A child may have his/her own separate legal representation or be provisions of the convention were given effect by the enactment represented by the Official Solicitor. of the Child Abduction and Custody Ordinance Cap 512 in 1997. Habitual residence in respect of Hague applications and issues as to 6.11 What methods of dispute resolution are available to removal of children from Hong Kong were considered in the Court resolve disputes relating to children? of Appeal case of JEK v LCYP CACV 125 of 2015; [2015] HKFLR 425; [2015] 5 HKC 293. Disputes relating to children are often dealt with through private mediation. 8 Overview Since 2012, the family court has adopted a pilot scheme for Children’s Dispute Resolution which aims to support “mothers and fathers, so that they are able to effectively parent their children post 8.1 In your view, what are the significant developments in separation or divorce. The intention is to ensure that whilst the family law in your jurisdiction in the last two years? best interests of children remains the court’s paramount concern, that lasting agreements concerning children are obtained quickly A significant development in Hong Kong was the signing of and in a less adversarial atmosphere. The focus is therefore on the the Proposed Arrangements with the Mainland on Reciprocal children’s best interests together with the duties and responsibilities Recognition and Enforcement of Judgements on Matrimonial and of their parents”. Please see Practice Direction 15.13. Related Matters in June 2017. This long awaited agreement between Collaborative practice is also available for the resolution of Hong Kong and the PRC will finally allow divorce petitions from children’s disputes. the Hong Kong courts to be recognised in China and for orders of the courts on both sides to be enforceable. With the increase in cross-border disputes this was an important step. It is anticipated 7 Children – International Aspects that this will come into force in late 2018. In the courts, important clarification has been given by the Court of Final Appeal in respect of jurisdiction in Hong Kong in respect of 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? children resident in the PRC: QMY v GSS (Jurisdiction of a Hong Kong born child in the PRC) [2017] HKFLR; [2017] 4 HKC 521; No, if one parent wants to move permanently from the jurisdiction (2017) HKCFAR 30.

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and set out clear guidelines as to when parental consent is required 8.2 What are some of the areas of family law which you and importantly to dispense with the differentiation between think should be looked into in your jurisdiction? children of married and unmarried parents. The second piece of legislation is a proposed set of family procedure Family lawyers are waiting patiently for two important pieces of rules which will provide practitioners with clear guidance of legislation to be passed by the government. The first is a Proposed procedure and in one place. At the moment, Hong Kong family Children’s Proceedings (Parental Responsibility) Bill which will procedures can be found in statute, subsidiary legislation and in the consolidate the many different ordinances dealing with children, rules of civil procedure. The aim is to have a set similar to the clarify and modernise the law in respect of custody, care and control Family Procedure Rules in England & Wales. Hong Kong

Sharon Ser Philippa Hewitt Withers Withers 20/F Gloucester Tower, The Landmark 20/F Gloucester Tower, The Landmark 15 Queen’s Road, Central 15 Queen’s Road, Central Hong Kong Hong Kong

Tel: +852 3711 1600 Tel: +852 3711 1600 Email: [email protected] Email: [email protected] URL: www.withersworldwide.com URL: www.withersworldwide.com

Sharon Ser heads the family department of Withers Hong Kong and is Philippa Hewitt is a Professional Support Lawyer at Withers Hong the Senior Regional Partner for Withers. Kong. Qualifying in England and Wales in 1990 and Hong Kong in 1991, Philippa has practised family law for a number of years. She Sharon focuses on family matters and international divorce cases has authored many articles on family law practice. She is the editor involving jurisdiction arguments and financial issues with global assets. and co-author of the Family Law Legal Practice Manual published in She has also increasingly advised on the drafting and enforceability 1998 and Family Law and Practice in Hong Kong for Sweet & Maxwell, of pre- and post-nuptial agreements. She has been involved in a published in 2011, and the second edition which was published in number of the key reported cases in the family field, many of which 2014. She is a contributor to the Hong Kong White Book 2015 as well have fundamentally impacted on this area of the law. as Atkins Court Forms and the Family volume of the Encyclopaedia Sharon has been a frequent lecturer for the Law Society and other of Forms and Precedents, for Lexis in 2010 and 2011. She has been institutions on Family Law in Hong Kong and overseas and is a the editor and main reporter for the Hong Kong Family Law Reports Fellow of the International Academy of Matrimonial Lawyers. Ever the from 2005 to date. She has contributed articles for The Lawyer in optimist, Sharon is also an appointed Civil Celebrant of Marriages. Hong Kong as well as a number of articles for the SCMP and other regional media. 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 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 advised 45% of the top 100 UK Sunday Times Rich List and over 25% of the top 100 US Forbes Lists as well as numerous families in Asia. 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 and trust work, litigation (for companies and individuals), employment, immigration and corporate finance 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 18 offices spread across Europe, the US, the Caribbean,Asia and Australia with over 160 partners worldwide.

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Japan

Haraguchi International Law Office Kaoru Haraguchi

mutual agreement in accordance with Article 763 of the Civil 1 Divorce Code of Japan. The elements of the judgment divorce under Article 770(1) are as 1.1 What are the grounds of jurisdiction for divorce follows: proceedings? For example, residence, nationality, (i) a spouse has committed an unchaste act; domicile, etc.? (ii) a spouse was abandoned by another spouse in bad faith; There is no explicit jurisdictional requirement for divorce under (iii) it has not been clear whether a spouse is dead or alive for at least three years; the laws of Japan. The prevailing opinion among scholars and the Supreme Court held that if the domicile of the defendant is in Japan, (iv) a spouse is suffering from severe mental illness and there is in general, they are required to file a divorce lawsuit in Japan. no prospect of recovery; or (v) there is any other grave cause making it difficult to continue Although there is no definition of domicile under the laws of Japan, the marriage. a person in practice is treated as having the domicile in Japan if he/ she has been in Japan for a couple of months with the intention to The last element is interpreted to mean the same as “irrecoverable stay in Japan indefinitely. breakup of the marriage”. The factors to determine the existence of this ground are domestic violence, serious insult, failure to work There are some exceptions to the general rule of jurisdictional despite the ability to work, wasteful habits, crime, conflict with the requirement. spousal family and difference in personal characteristics. The judgment of the Supreme Court of March 25, 1964 set an The length of the period of separation is considered as one of the exception to the general jurisdictional requirement if the plaintiff most important factors in establishing the last ground. However, is located in Japan and one of the following requirements is met: separation is not an indispensable factor of divorce. (i) the plaintiff was abandoned by the defendant; There was an argument whether the wife or husband who is (ii) the whereabouts of the defendant are unknown; or responsible for the irrecoverable breakup of the marriage could file (iii) in case of other situations equivalent to the above. a divorce lawsuit against his/her spouse. By applying this rule, the Supreme Court affirmed the jurisdiction The judgment of the Supreme Court dated September 2, 1987 held over the divorce case filed by a Korean wife residing in Japan that he/she could file a divorce if: against her Korean husband who had never been to Japan and (i) the duration of separation is particularly long, considering whose whereabouts were not known. the ages of the parties and compared with the duration of Another judgment of the Supreme Court of June 24, 1996 set cohabitation; another exception to the general jurisdictional requirement: if the (ii) there are no dependent children; and plaintiff is located in Japan and the plaintiff has difficulty in filing (iii) there are no outstanding circumstances, particularly against a divorce lawsuit, de juro or de facto, against the defendant in the social justice or in situations where the spouse, in objecting location of the defendant. to the divorce, will be placed into extremely severe mental, By applying this rule, the Supreme Court affirmed that it has social or economic conditions upon divorce. jurisdiction over a divorce case filed by a Japanese husband residing in Japan against his German wife located in Germany. In this case, 1.3 In the case of an uncontested divorce, do the parties the German court rendered a divorce judgment and, therefore, the need to attend court? Japanese husband is not allowed to file a divorce lawsuit again in Germany. The Japanese husband did not need to file a lawsuit in No, they do not. The parties just have to submit the application for Japan in order to divorce his wife. divorce to municipal office.

1.2 What are the grounds for a divorce? For example, is 1.4 What is the procedure and timescale for a divorce? there a required period of separation, can the parties have an uncontested divorce? With regard to the procedure of divorce by mutual agreement, the parties shall submit the divorce papers with the signatures of the Under Japanese law, a husband and wife can get divorced by parties to municipal office.

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With regard to judicial divorce, a party has to file for mediation. If the parties reach an agreement for divorce in the mediation 1.7 Does your jurisdiction allow separation or nullity procedure, the parties are granted a divorce by mediation. proceedings? If not, the parties cannot get divorced by mediation. In this case, Under Japanese law, separation is not allowed but the nullification a party who wants to get divorced can file a lawsuit for divorce. of marriage is allowed. Article 742 of Civil Code stipulates that In this procedure, if the court recognises the existence of one of marriage shall be void only in the following cases: the grounds for divorce mentioned above, the parties get divorced by judgment. Under Japanese law, the parties cannot file a lawsuit (i) if one of the parties has no intention to marry due to mistaken without filing for mediation (Article 257(1) of Domestic Relations identity or other cause; or

Case Procedure Act). In cases where there is a serious dispute (ii) if the parties do not lodge notification of marriage; provided, Japan regarding divorce between parties, it often takes more than one year however, that the effect of marriage shall not be prevented merely because notification was not given in the form for the court to render the judgment. prescribed in paragraph (2) of Article 739 of Civil Code. If the marriage is declared null, the parties can file a lawsuit or file a 1.5 Can a divorce be finalised without resolving other 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 has proceedings in another country? parental authority must be determined in both cases whether the parties get divorced by agreement or judgment (Article 819(1) (2) It is generally understood that the Japanese court have jurisdiction of Civil Code). If parties agree on that point, the person who has over a matter even if there are proceedings in another country, as custody shall be decided based on the agreement, if not, the court long as the Japanese court has the jurisdiction. However, once has to decide the person. a foreign court has rendered a judgment and the judgment is recognised as valid in Japan by the Japanese court, the Japanese court will dismiss the ongoing petition for the reason that there is 1.6 Are foreign divorces recognised in your jurisdiction? no merit to the petition.

Foreign divorce is recognised where a foreign divorce judgment is final and meets the following conditions provided by Article 118 of 2 Finances on Divorce Code of Civil Procedure: (i) The jurisdiction of the foreign court is recognised under laws or regulations or conventions or treaties. 2.1 What financial orders can the court make on divorce? In determining if the foreign court has jurisdiction over the case, the same jurisdiction rule adopted by the court of Japan The court can make orders regarding the distribution of property shall apply. For example, the judgment of the Tokyo Family (Article 768 of Civil Code) and child support payment (Articles Court of September 11, 2007 refused to recognise a divorce 771 and 766(1) of Civil Code). order of the Australian court as both parties had domicile in Japan. 2.2 Do matrimonial regimes exist and do they need to be (ii) The defeated defendant has received a service (excluding a addressed by the court on divorce? Is there a default service by publication or any other service similar thereto) of regime? a summons or order necessary for the commencement of the suit, or has appeared without receiving such service. Under the laws of Japan, there is no matrimonial regime that needs To meet this condition, the international service from the to be addressed upon divorce. foreign country to the defendant in Japan shall meet the requirements in compliance with the treaty on the service if both Japan and the foreign country are member states of the 2.3 How does the court decide what orders to make? treaty. What factors are taken into account? (iii) The content of the judgment and the court proceedings are not contrary to public policy in Japan. With regard to orders for the distribution of property upon divorce, The above Tokyo Family Court judgment also refused the parties to the divorce could agree on how to distribute the to recognise a divorce order of the Australian court as the matrimonial property. If both parties fail to agree the method judgment is contrary to public policy in Japan. In this of distribution of matrimonial property, the family court shall case, both the husband and wife had domicile in Japan determine whether to make a distribution, and the amount and and the plaintiff (husband) was solely responsible for the method of that distribution, taking into account the amount of irrecoverable breakup of the marriage and could not file a property obtained through the cooperation of both parties and all divorce in Japan. other circumstances (Article 768(3) of Civil Code). (iv) A mutual guarantee exists. Distribution of property under Japanese law is generally understood In practice, there is no foreign judgment refused to recognise to cover the following three elements: a foreign court divorce judgment applying this case. The monetary judgment rendered by the People’s Republic of (i) distribution of matrimonial properties that are acquired China is not recognised under this clause but the divorce during marriage; judgment of the PRC is recognised under this clause. (ii) compensation for the emotional damage caused by divorce; and (iii) post-divorce maintenance.

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With regard to element (i) above, except for special cases, the same, or, where neither of these is the case, by the law of the place levels of contribution of the parties are assumed to be equal. most closely connected with the husband and wife (Articles 27 and With regard to element (ii) above, if a party is responsible for the 25 of AGRAL). breakdown of the marriage, the other party can claim compensation for the emotional damage caused by the divorce in accordance with 2.9 How is the matrimonial home treated on divorce? Article 709 of Civil Code. This claim can be included in the claim of distribution of property. The matrimonial home is treated as the one of the properties which With regard to element (iii) above, in making an order for the is the object for distribution under the rules mentioned in question distribution of property, the court can only consider this element 2.3 above. Japan when one of the parties cannot support his/herself following the divorce, even if they receive property from the other party as 2.10 Is the concept of “trusts” recognised in your outlined in the elements (i) and (ii). jurisdiction?

2.4 Is the position different between capital and There is no special concept of family trusts under Japanese law. maintenance orders?

2.11 Can financial claims be made following a foreign Under the case laws of Japan, maintenance of the spouse, other than divorce in your jurisdiction? If so, what are the the distribution of property upon divorce, is merely supplemental. grounds? In other words, one spouse may be required to support the other only if the distribution of property upon the divorce is not sufficient The grounds for recognition of financial claims made following a to support the living of the other. The other spouse is, in general, foreign divorce are the same as the grounds mentioned in question not entitled to receive financial support or alimony other than the 1.6 above. distribution of the assets upon the divorce under the laws of Japan.

2.12 What methods of dispute resolution are available to 2.5 If a couple agrees on financial matters, do they need resolve financial settlement on divorce? E.g. court, to have a court order and attend court? mediation, arbitration?

If the parties have agreed on financial matters, they do not need to In Japan, the parties can use mediation and lawsuits. have a court order. With regard to the distribution of property, only when the parties do not, or cannot, settle on agreement, either party may make a claim to the family court for a disposition in lieu of 3 Marital Agreements agreement (Article 768(2) of Civil Code).

3.1 Are marital agreements (pre and post marriage) 2.6 How long can spousal maintenance orders last and enforceable? Is the position the same if the agreement are such orders commonplace? is a foreign agreement?

As mentioned above, in Japan, there is no spousal maintenance Under Japanese law, marital agreements are concluded only before obligation except for the cases where the element of post- marriage (Article 755 of Civil Code). Though marital agreements divorce maintenance is considered when the court determines the are not popular in Japan, the agreements are enforceable as long as distribution of property. the agreements are not against public policy (Article 90 of Civil Code). However, if a party has entered into a contract that departs from the statutory property system, the contract may not be asserted 2.7 Is the concept of matrimonial property recognised in your jurisdiction? against the successor in title of the husband or wife, or a third party unless registered prior to notification of marriage (Article 756 of Civil Code). With regard to matrimonial property, except the property owned by one party before marriage and property obtained in the name of that Also, a foreign agreement on marital property concluded under a party during marriage, the property owned by the parties is regarded foreign law may be asserted against a third party when it is registered as co-owned property. in Japan (Article 26(4) of AGRAL).

2.8 Do the courts treat foreign nationals differently on 3.2 Can marital agreements cover a spouse’s financial divorce, if so, what are the rules on applicable law? claims on divorce, e.g. for maintenance or Can the court make orders applying foreign law rather compensation, or are they limited to the election of than the law of the jurisdiction? the matrimonial property regime?

Under Japanese law, if either the husband or the wife is a Japanese As long as the contents of the agreements are not against public national who has their habitual residence in Japan, their divorce policy of Japan, the agreements can cover a spouse’s financial shall be governed by Japanese law (Article 27 of Act on General claims on divorce. Rules for Application of Laws (“AGRAL”)). In other cases, the effect of a divorce shall be governed by the 3.3 What are the procedural requirements for a marital national law of the husband and wife if their national law is the same, agreement to be enforceable on divorce? or, where that is not the case, by the law of the habitual residence of the husband and wife if their law of the habitual residence is the If a party has entered into a contract that departs from the statutory

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property system, the contract may not be asserted against the In cases where the amount of child maintenance is decided by successor in title of the husband or wife, or a third party unless judgment, mediation or adjudication, the amount is calculated registered prior to notification of marriage (Article 756 of Civil with a formula designed to reflect the concept that the parents are Code). responsible for ensuring their dependent child enjoys the 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 4 Cohabitation and the Unmarried Family of the Tokyo Family Court (http://www.courts.go.jp/tokyo-f/saiban/ tetuzuki/youikuhi_santei_hyou/). In accordance with the chart, the amount of child maintenance is calculated by taking into account 4.1 Do cohabitees, which do not have children, have financial claims if the couple separate? What are the the incomes of both parents, the age of the children, and the number Japan grounds to make a financial claim? of the children involved. However, in cases where there are special circumstances which result in the amount calculated by the formula With respect to cohabitation, there is no provision on the subject of being considerably unfair, the court can order an amount which the division of property for unmarried cohabitees. However, Article departs from the chart by considering the special circumstances. 768 of Civil Code for married parties is applied mutatis mutandis to de facto spouses who live together with the intention of getting 5.3 For how long is a parent required to pay child married but have not yet filed the formal registration in accordance maintenance or provide financial support for their with case law. Therefore de facto spouses have financial claims children? For example, can a child seek maintenance should they separate. during university?

Though there is no provision stipulating the cut-off age of child 4.2 What financial orders can a cohabitee obtain? support, in general, the parent is required to pay child maintenance until the child reaches the age of 20. As mentioned above, de facto spouses can obtain an order for property division. However, in cases where there are special circumstances which mean the child is unable to make his/her living by themselves, the parent has to pay child maintenance until the child is able to do so. 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? 5.4 Can capital or property orders be made to or for the benefit of a child? Under Japanese law, there is no provision regarding formal partnership status for cohabitants. In cases where the parents cannot agree the amount of child maintenance, the court can decide the amount and make an order 4.4 Are same-sex couples permitted to marry or enter regarding child maintenance. other formal relationships in your jurisdiction?

Under Japanese law, same-sex couples are not permitted to marry. 5.5 Can a child make a financial claim directly against their parents? As mentioned above, there is no provision regarding formal relationships other than marriage. As Article 31 of Code of Civil Procedure stipulates that “a minor Some practitioners believe Article 768 of Civil Code for married and an adult ward may not perform any procedural acts unless by parties is applied mutatis mutandis to same-sex couples intending to a statutory agent”, a minor dependent child cannot file a lawsuit live forever as a married couple. against the parents to claim child maintenance. In that case, a partner may have financial claim against the other if the couple separate. There is no case law so far. 6 Children – Parental Responsibility and Custody 5 Child Maintenance

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

Under Japanese law, the parent who does not reside with the Under Japanese law, both parents have parental authority of children dependent child has an obligation to pay child maintenance to in wedlock during their marriage (Article 818(1)). In Japan, parental other parent who resides with the child both within and outside of authority includes both legal and physical custody. At the time of marriage. Parents have an obligation to support their dependent the divorce, by agreement or by the order of the court, one of the child. parents shall be given parental authority (Article 819 of Civil Code). On the other hand, with regard to children out of wedlock, the 5.2 How is child maintenance calculated and is it mother has the parental authority. However, in case both parents administered by the court or an agency? agree that the father shall have parental authority, he can exercise this right. Parents can decide the amount of child support by agreement. In cases where they cannot reach an agreement, the court or a mediation agency will decide the amount.

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6.2 At what age are children considered adults by the 6.6 Without court orders, what can parents do court? unilaterally? For example, can they take a child abroad? Children are considered adults at the age of 20 (Article 4 of Civil Code). However, if the children enter into marriage, they are Under Japanese law, the parental authority can be exercised without considered adults even if under the age of 20. court order. As the parent who has parental authority can determine the residence of the child (Article 821 of Civil Code), he/she can take the child abroad without a court order. 6.3 What is the duration of children orders (up to the age

Japan of 16 or 18 or otherwise)? 6.7 Is there a presumption of an equal division of time A child who is under the age of 20 is subject to the parental authority between separating or divorcing parents? of his/her parents (Article 818(1) of Civil Code). However, in cases where the child enters into marriage, he/she is no longer subject to Under Japanese law, there is no concept of joint parental authority, the parental authority (Article 753 of Civil Code). and there is no presumption of an equal division of 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 6.4 What orders can the court make in relation to life with the primary caregiver. children? Does the court automatically make orders in relation to child arrangements in the event of divorce? 6.8 Are unmarried parents treated in the same way as Upon the divorce, the court shall decide the sole parental authority married parents when the court makes orders on if the parties to the divorce fail to determine who is to become the separation or divorce? sole parental authority in accordance with Articles 819(1) to (3) of Civil Code. Under the laws of Japan, unmarried parents are not treated in the same way as married parents. The court also does not have the authority to make orders on the separation or divorce of the 6.5 What factors does the court consider when making unmarried couple. The parental authority is held by the mother of orders in relation to children? the child until the father adopts the child.

Upon the determination of the sole parental authority, the court will have considered who is the primary caregiver of the child, 6.9 Is a welfare report prepared by an independent continuity of the family and school life of the children and the professional or is the decision taken by the Judge will of the children. The mother has generally been the primary alone? If so, does the child meet the Judge? caregiver for the child and often takes her child to her parents’ home upon divorce in Japan. During the divorce mediation and litigation, In cases with regard to children, including parental authority and the primary caregiver is always the mother, the family and school visitation, the judge may have a family court probation officer life of the child is established with his mother, and the child can examine the facts of the case (Article 58(1) of Domestic Relations be heavily encouraged to refuse to see his/her father. In that case, Case Procedure Act). In that case, the officer meets the child and the left-behind husband has very little chance to be appointed as speaks with them instead of the judge. However, whether the officer the sole parental authority by the court when they consider who the speaks with the child is at the discretion of the judge. primary caregiver of the child is, the continuity of the family and school life of the child and the will of the child. Under the above 6.10 Is there separate representation for children in your circumstances, the mother has a strong incentive to abduct her jurisdiction? child from her husband upon the divorce and Japan is the so-called “heaven of the abductor”. Article 23 of Domestic Relations Case Procedure Act stipulates that Recently, the Matsudo branch of the Chiba District Court rendered the court may appoint separate representation for children. In cases an epoch-making decision on March 29, 2016 (Matsudo Judgment). involving children, in which the court needs to listen their opinions, The Matsudo judgment compared the parenting plans submitted by separate representation is appointed so that they can fully express both the wife and the husband (who had been left behind for six their opinions. years without visitation of his child) and appointed the husband as the parental authority of the child because his parental plan was 6.11 What methods of dispute resolution are available to friendlier than that of the mother as it provided more chances for resolve disputes relating to children? visitation to the other. This judgment is recognised to apply the parent-friendly rules adopted in the US and other Western countries. To resolve disputes relating to children, the methods of mediation Tokyo High Court rendered a decision on January 26, 2017, which and litigation are available. 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 been raised up, their wills, etc. 7 Children – International Aspects should be taken into account in a total manner”.

The Supreme Court judged on July 12, 2017, that the Tokyo High 7.1 Can the custodial parent move to another state/ Court should be upheld. country without the other parent’s consent?

Under the laws of Japan, one of the parents shall have the parental authority upon the divorce, in accordance with Articles 819(1) and

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(2). The parent holding parental authority can decide the place of the residence of child (Article 821 of Civil Code). He/she can, 8.2 What are some of the areas of family law which you therefore, move to another country together with the child without think should be looked into in your jurisdiction? the consent of the other parent. 1. Which law should be applied in an International Divorce? International marriage and divorce areas of family law should be 7.2 If the court is making a decision on relocation of a child abroad, what factors are taken into account? looked into in Japan. Under Article 27 of GRAL, the governing law shall be the governing Under the laws of Japan, the court has no authority to render the law of their marriage if either husband or wife is a Japanese national relocation order. who has habitual residence in Japan. Japan Accordingly, where an international couple, one of whom is 7.3 In practice, how rare is it for the custodial parent to be Japanese, has lived in Japan for more than one year, their divorce allowed to relocate internationally/interstate? should be governed by the laws of Japan. Under Articles 27 and 25 of GRAL, the effect of a divorce shall be No practice of the court allows the custodial parent to relocate the governed by the national law of the husband and wife if their national child internationally. law is the same or where that is not the case, by the law of the habitual residence of the husband and wife if the law of their habitual residence is the same, or where neither of these is the case, by law of 7.4 How does your jurisdiction deal with abduction the place most closely connected with the husband and wife. cases? For example, is your jurisdiction a party to the Hague Convention? For example, where a US husband and a Canadian wife have been living together in Japan for more than one year, their divorce should Japan entered into the Hague Convention on January 24, 2014, the be governed by the laws of Japan. law of Japan was amended on June 12, 2013, and the convention Under Article 38(3) of GRAL, where a party concerned has became effective in Japan on April 1, 2014. As a result, Japan deals nationality in a country where different laws are applied in with abduction cases in accordance with the Convention. different regions, his/her national law shall be the law designated in accordance with the uniform rules of the country (in the absence of such rules) and the law of the region with which the party is most 8 Overview closely connected. Under Article 38(3) and Article 27 of GRAL, a US couple, with a 8.1 In your view, what are the significant developments in husband born and having grown up in the state of New York and a family law in your jurisdiction in the last two years? wife born and having grown up in the state of California, does not have the same national law and therefore the laws of Japan should As question 6.5 explained above, although the Matsudo branch of be the governing law of their divorce if they live in Japan for more the Chiba District Court rendered a decision on March 29, 2016 than one year. (Matsudo Judgment), applying the parent-friendly rules adopted in Because there is a uniform divorce law in relation to the elements the US and other western countries, it was overruled by the Tokyo of divorce in Canada and there is also a family law in each state in High Court decision on January 26, 2017, which concluded that the relation to asset distribution, the governing law of uniform divorce mother should have the parental authority, pointing out visitation law would be the governing law of divorce but the Japanese law issues as one of the consideration factors and stating “how the would be the governing law of the asset distribution of their divorce children have been raised up, their wills, etc. should be taken into if they live in Japan for more than one year. account in a total manner”. This view was upheld and finalised by 2. Which law should be applied in relation to parental rights the Supreme Court judgment on July 12, 2017. and obligations upon an International Divorce? In Japan, a child’s mother taking him/her away from the father has Under Article 32 of GRAL, the legal relationship between parents also been considered parental alienation or brainwashing of the and their child shall be governed by the child’s national law if it is child. Although the courts do not explicitly recognise the concept the same as the national law of either the father or mother or, in other of parental alienation, which is a controversial concept in the US, cases, governed by the law of the child’s habitual residence. the court of Japan implicitly recognises the concept. A district court states that the opinion of the child taken by a Japanese mother from One big issue is where the child has dual nationalities. a foreign father is not always trustworthy in that the child is heavily Under Article 38(1) of GRAL, where a party has two or more dependent on the mother and may be influenced by her opinion too nationalities, the party’s national law shall be the law of the country much. of his/her nationality where he/she has habitual residence, or, the The issue is how to prevent such parental alienation. Some scholars law of the country closest to that of the party’s nationality where he/ and practitioners believe the spirit of the Hague Convention, which she has habitual residence; provided, however, that if one of those is applicable only in international abduction cases, should also be nationalities is Japanese, Japanese law shall be the party’s national applicable in the domestic abduction cases. According to them, the law. court should order that the provisional retrievable order be issued to For example, a father is a US citizen and a mother is Japanese. A avoid the parental alienation. child between a US citizen and a Japanese citizen would have US and Japanese nationalities.

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As long as the child has been living in Japan for more than a year, he/ she has habitual residence of Japan. As his/her mother is Japanese, Kaoru Haraguchi the parental relationship with the US citizen shall be governed by the Haraguchi International Law Office laws of Japan under Article 38(1) and 32 of GRAL. NT Toranomon Building 9F, 1-4-3 Toranomon, Minato-ku 3. Expert legal advice is highly recommended. Tokyo, 105-0001 Japan As explained above, the governing law of the divorce for international couples is highly complex and the advice of experienced international Tel: +81 3 6205 4404 divorce experts, such as us, is highly recommended. Email: [email protected] URL: www.haraguchi-law.com Japan

Acknowledgment Kaoru Haraguchi, a founding partner of our office, has been engaged in practising family law for approximately 30 years. He has wide and This article has greatly benefitted from “Mikiko Otani., 2013. Japan. rich experience in Japan, the US (Chicago, Washington, D.C. and In: James Stewart et al., ed. 2013. Family Law. London: Sweet & New York) and the UK (London) following his studies (LL.M. The Law Maxwell. pp.359-374”. The author of this chapter is deeply grateful School of the University of Chicago, class of 1993) and has practical to Ms. Mikiko Otani. 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. In collaboration with his Chinese and Mongolian colleagues, he is able to provide his 30 years of family law expertise to international clients who do not speak either Japanese or English.

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.

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Jersey Barbara Corbett

Corbett Le Quesne Nicholas Le Quesne

period of either one or two years. Therefore, it is possible to obtain a 1 Divorce divorce without alleging fault against the other party, but only where the parties have lived apart for at least one year. 1.1 What are the grounds of jurisdiction for divorce There is no provision for attempted reconciliation. If cohabitation proceedings? For example, residence, nationality, occurs during the separation, the period of separation must start domicile, etc.? again. The Law Commission of Jersey has recommended that no fault The family court (the Family Division of the Royal Court of Jersey) divorce without the need for the parties to live apart be adopted in has jurisdiction in relation to divorce, nullity and judicial separation Jersey. However, this has not yet been taken up by the States of (Matrimonial Causes (Jersey) Law 1949, Articles 3 and 6): Jersey. ■ Where the parties are domiciled in Jersey when proceedings are commenced. ■ Where either of the parties was habitually resident in Jersey 1.3 In the case of an uncontested divorce, do the parties for the year immediately preceding the date proceedings are need to attend court? started. ■ In the case of nullity or presumption of death, where either No, they do not. of the parties were habitually resident in Jersey for the year immediately preceding the date proceedings are started or for 1.4 What is the procedure and timescale for a divorce? a year preceding the death. ■ It is of note that in Jersey there is a domicile of dependence A divorce petition must be filed with the Judicial Greffe (court for married women which means that if the husband is office), together with: domiciled in Jersey, then so is the wife. If the husband is not domiciled in Jersey then in order for there to be jurisdiction ■ A Statement of Arrangements for Children, setting out the for divorce proceedings one of the parties must have lived in care and financial arrangements for the children of the family Jersey for the preceding year. (not just birth children) (Form 5). ■ The original marriage certificate.

1.2 What are the grounds for a divorce? For example, is ■ The court fee (paid by way of treasury receipt). there a required period of separation, can the parties ■ An acknowledgment of service form (Form 4). have an uncontested divorce? ■ An explanatory leaflet (Form 3). The petition is then issued by the Judicial Greffe and returned to the Grounds for divorce. Divorce is only available after three years of petitioner together with Forms 3, 4 and 5 to be served. Service can marriage, except in exceptional circumstances. be achieved by post, personally through the Viscount or via lawyers The grounds for divorce are (on the part of the respondent): (if agreed). ■ Adultery. The respondent must return Form 4 to the Greffe within eight days ■ Desertion for two years. of service indicating whether or not the divorce is defended (and ■ Unreasonable behaviour. file an answer within 22 days if it is). If the petition is undefended, ■ Incurable mental illness. the petitioner must apply for a Greffier’s Certificate confirming entitlement to a divorce and the matter is put on the “undefended ■ Serving a prison sentence of more than 15 years (or life). list” for decree nisi to be granted. There are undefended lists The concepts of “collusion, condonation and connivance” attach approximately every two months. The court must be satisfied that to the above grounds. Irretrievable breakdown is not a ground for the arrangements for the children are suitable before granting a divorce. decree nisi. Decree absolute can be applied for by the petitioner A divorce may also be granted if the parties have lived apart for a six weeks after decree nisi is granted and by the respondent three year and the respondent consents to the divorce, or if the parties months after that. have lived apart for two years immediately before the divorce If a divorce is defended notice of intention to defend must be proceedings are started (no consent required). In such separation given within eight days of the petition being served and an answer divorces, the parties must have lived apart for the whole of the within 22 days. Once an answer has been filed the petitioner then

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applies for the matter to be listed for a hearing. In almost every ■ The marriage has not been consummated owing to the wilful case the hearing of a defended petition is avoided by either a cross refusal of the respondent. petition or amended particulars of behaviour and significant judicial ■ Either party has taken steps for the recognition of his or her encouragement. change of gender. ■ The respondent is a person whose gender at the time of the marriage had become the acquired gender. 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and ■ The respondent was, at the time of the marriage, pregnant by finances. some person other than the petitioner (or a former husband, while married).

Jersey A divorce can be finalised (decree absolute obtained) without ■ The respondent was suffering from a venereal disease at the financial matters having been resolved but the court mustbe time of the marriage. satisfied that the arrangements for the children are satisfactory ■ Either party to the marriage was, at the time of the marriage, before granting a final decree. of unsound mind or was then suffering from a mental disorder of such a kind or to such an extent as to be unfitted for marriage and the procreation of children or subject to 1.6 Are foreign divorces recognised in your jurisdiction? recurrent attacks of insanity or epilepsy. ■ An interim certificate has, after the time of the marriage, been Marriages issued to either party to the marriage (pursuant to the Gender If a foreign marriage is validly contracted according to the law of Recognition (Jersey) Law 2010). the jurisdiction in which it took place, it will be recognised in Jersey. For the last four grounds above, the court will not grant a decree Divorces/annulment unless all of the following are satisfied: Under the Recognition of Divorces and Legal Separations (Jersey) ■ The petitioner was, at the time of the marriage, ignorant of the facts alleged. Law 1973 (the “Law”), a decree of divorce or judicial separation granted in any part of the British Islands is recognised in Jersey, ■ Proceedings were instituted within a year from the date of the as are any divorces and legal separations that have been obtained marriage. by judicial or other proceedings in any other country and that are ■ Marital intercourse with the consent of the petitioner has effective under the law of that country. not taken place since the discovery by the petitioner of the existence of the grounds for a decree. Where a divorce is recognised under the Law, neither spouse will be precluded from remarrying in Jersey on the ground that the divorce Procedure. The procedure for nullity is the same as for divorce is not recognised as valid in another country. in that undefended causes can be dealt with without the parties attending a hearing, following the issue of a Greffier’s Certificate There is an exception to the recognition of a foreign divorce confirming that the petitioner is entitled to a decree of divorce, where, according to the law of Jersey (including its rules of private judicial separation or nullity (see above, Divorce: Procedure). international law), there was no subsisting marriage between the parties. Judicial separation Civil partnerships Grounds. Judicial separation is available on the same grounds as divorce (see above, Divorce: Grounds) with the addition of the Foreign civil partnerships and foreign dissolutions and separations respondent being “an habitual drunkard”. A judicial separation can are recognised in Jersey if they have been obtained by judicial or be obtained at any time after marriage, so can be used during the other proceedings in another country and are effective under the law first three years of marriage when divorce is unavailable (see above, of that country (Articles 60 to 61, Civil Partnership (Jersey) Law Divorce: Grounds). 2012). Procedure. The procedure for judicial separation is the same as Where dissolution or nullity of a civil partnership is recognised in for divorce, in that undefended causes can be dealt with without Jersey, neither party will be precluded from entering into another the parties attending a hearing, following the issue of a Greffier’s civil partnership or marriage on the ground that the dissolution is Certificate confirming that the petitioner is entitled to a decree st not recognised as valid in another country. As from 1 July 2018 of divorce, judicial separation or nullity (see above, Divorce: same-sex marriages have been possible. Procedure).

1.7 Does your jurisdiction allow separation or nullity 1.8 Can divorce proceedings be stayed if there are proceedings? proceedings in another country?

Nullity If the Jersey courts have jurisdiction to accept an application for Grounds. A marriage can be annulled if it is void, on the following divorce or other family matters, then an application can be made grounds: in Jersey regardless of any other proceedings already being extant ■ One or both of the parties is under 16 years of age. elsewhere. Jersey is not subject to the Brussels II Regulation. ■ At the time of the marriage one or both of the parties was Therefore, issuing proceedings first in another jurisdiction does not already married. necessarily oust the Jersey court. An application for a stay of Jersey proceedings is made by summons on Form 15 in divorce or financial A marriage can also be annulled if it is voidable, on the following remedy (ancillary relief) proceedings and Form C2 in Children Law grounds: proceedings. ■ The impotency of one or both parties to the marriage since its celebration. A divorce petition must include details of any previous or current ■ The marriage was celebrated through fraud, threats or duress. proceedings in Jersey or elsewhere, which relate to the marriage or any children.

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2 Finances on Divorce 2.4 Is the position different between capital and maintenance orders?

2.1 What financial orders can the court make on divorce? No, although a party’s financial need is of more importance in spousal maintenance claims. In relation to ancillary relief, the overriding objective is to deal with cases justly (rule 47, Matrimonial Causes Rules 2005). The court has the power to vary trusts, marriage settlements, post- 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? nuptial settlements or separation agreements in any way it appears to the court to be just, having regard to the means of the parties, Jersey the conduct of either of them (insofar as it may be inequitable to There is no obligation to have a court order or to attend court. disregard it) or in the interests of any children of the family. However, it is prudent to enter into a consent order setting out the agreement. The consent order needs to be accompanied by The court also has the power to: a “statement of information for a consent order” setting out the ■ Transfer any property to the other party (or to the children of financial position of the parties so the court can (roughly) assess the the family, or anyone else for the benefit of the children). fairness of the agreement embodied in the consent order. ■ Order periodical payments, lump sums (more than one is permissible and any sums may be ordered to be paid in instalments) and secure such payments, for both the other 2.6 How long can spousal maintenance orders last and spouse and any children of the family. are such orders commonplace? ■ Order property to be sold and order who should receive the proceeds of sale, or insist that property is offered for sale to Spousal maintenance can be on a joint-lives basis but such orders specific people or that there is a deferred sale. are relatively rare. ■ Order the execution of documents by others where a person does not comply with an order for sale. 2.7 Is the concept of matrimonial property recognised in There is also a power to vary, suspend or discharge orders. The court your jurisdiction? must have regard to all the circumstances of the case, including any increase or decrease in the means of the parties when making any Yes, but the date of the acquisition of assets is taken into account as such orders. part of all the circumstances of the case. There is no power to make pension sharing orders or any power to set aside prior transactions that may have been made with the 2.8 Do the courts treat foreign nationals differently on intention of defeating claims. However, “Pauline actions” (that divorce, if so, what are the rules on applicable law? is, setting aside transfers of property to others or into trusts made Can the court make orders applying foreign law rather with the intention of avoiding paying a former spouse or defrauding than the law of the jurisdiction? creditors) and tracing claims are available if necessary. Trust, company or other assets, the legal title to which is not held by Foreign nationals are not treated differently on divorce. The Royal one of the parties, can be taken into account as a financial resource, Court of Jersey only applies Jersey law. depending on the circumstances of the case. For example, if one of the parties is a beneficiary of a and has been 2.9 How is the matrimonial home treated on divorce? provided with accommodation from the trust, this will be taken into account when an order is made. On the other hand, the court cannot The matrimonial home is treated as any other asset on divorce. The order a third party (such as a trust or a company) to make payments court will always seek to ensure that any minor children and the to a spouse. There can be “judicial encouragement” but nothing parties are suitably housed but only if finances allow. more.

2.10 Is the concept of “trusts” recognised in your 2.2 Do matrimonial regimes exist and do they need to be jurisdiction? addressed by the court on divorce? Is there a default regime? Yes, it is recognised.

Matrimonial regimes do not exist. The default position is that each party to a marriage holds his or her property in their own name. 2.11 Can financial claims be made following a foreign There is no community of property. divorce in your jurisdiction? If so, what are the grounds?

2.3 How does the court decide what orders to make? There are no specific provisions in Jersey to make orders following What factors are taken into account? a foreign divorce.

The Matrimonial Causes (Jersey) Law 1949 stipulates that the court must exercise its powers to make financial orders “having regard to 2.12 What methods of dispute resolution are available to all the circumstances of the case including the conduct of the parties resolve financial settlement on divorce? E.g. court, mediation, arbitration? to the marriage insofar as it would be inequitable to disregard it and to their actual and potential financial circumstances”. ■ Mediation, both on the “family” model of several short However, through case law (Howarth v McBride (1984) JJ 1) the sessions without lawyers and the “civil” model of one or two English “section 25 factors” have been brought into Jersey law.

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days of intensive mediation with the assistance of lawyers and an independent mediator. 4 Cohabitation and the Unmarried Family ■ Arbitration, both for finances and children. ■ “Private FDRs”, where the facilitator gives a steer to the 4.1 Do cohabitees, which do not have children, have parties to assist negotiations and Early Neutral Evaluation. financial claims if the couple separate? What are the ■ Collaborative law is also available in Jersey. grounds to make a financial claim?

Not unless there are any contractual or property rights. 3 Marital Agreements

Jersey 4.2 What financial orders can a cohabitee obtain? 3.1 Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement None other than contractual or property rights. is a foreign agreement?

In Jersey, the position for agreements is very similar to that in 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? England and Wales, and Guernsey. Pre-nuptial agreements do not bind the court, but their existence can be taken into account in the exercise of the court’s discretion. Provided a decree of divorce or Not for opposite-sex couples. nullity or judicial separation has been made, the court has full power under the Matrimonial Causes (Jersey) Law 1949 to: 4.4 Are same-sex couples permitted to marry or enter ■ Vary any marriage settlement or post-nuptial settlement other formal relationships in your jurisdiction? (Article 27). ■ Order that any property one party is entitled to, be transferred Civil partnerships were brought in in 2012 and same-sex marriage to the other party or any child of the family (Article 28). on 1st July 2018. When making financial orders, the court must have “regard to all the circumstances of the case including the conduct of the parties 5 Child Maintenance to the marriage insofar as it may be inequitable to disregard it and to their actual and potential financial circumstances”. If parties have entered into a pre-nuptial agreement with the benefit of full 5.1 What financial claims are available to parents on disclosure and legal advice, in the absence of duress or undue behalf of children within or outside of marriage? influence, that will be taken into account as part of the conduct of the parties. A pre-nuptial agreement should therefore be taken A parent or someone in whose favour a residence order is in force into account by the court, but no agreement can oust the court’s can make an application for financial relief by way of an application jurisdiction in respect of applications under the Matrimonial Causes under Schedule 1 of the Children (Jersey) Law 2002. The court (Jersey) Law 1949. can order that either or both parents of the child make periodical The case of L v M [2016] JRC184A confirms that a pre-nuptial payments, secured periodical payments, a lump sum payment or agreement should be taken into account as part of “all the transfer property to the applicant for the benefit of the child or to circumstances of the case”. However, the parties will not be held the child personally. The court can also order a settlement to be to their bargain if to do so would leave one party in great need and made for the benefit of the child. These applications can be made the other with plenty. The same applies wherever the agreement regardless of whether the parties are married, although usually was made. where the parties are married applications are made within divorce and financial remedy proceedings under the Matrimonial Causes (Jersey) Law 1949. Orders usually last until a child’s 17th birthday, 3.2 Can marital agreements cover a spouse’s financial but can be extended to no later than the child’s 18th birthday, unless claims on divorce, e.g. for maintenance or the child is in education or training or where there are special compensation, or are they limited to the election of the matrimonial property regime? circumstances.

Marital agreements are generally entered into to determine the 5.2 How is child maintenance calculated and is it financial claims on divorce or death. administered by the court or an agency?

Child maintenance is decided by the court if the parties cannot 3.3 What are the procedural requirements for a marital agreement to be enforceable on divorce? agree. The general starting point is 15% of the paying party’s net income for one child, 20% for two and 25% for three or more. There can also be orders in relation to the payment of school fees and other There are no specific requirements for a marital agreement tobe expenses such as medical and dental. enforceable on divorce. Marital agreements are not enforceable, the court retains full discretion in respect of how much weight is given to them on divorce. However, increasingly the court will follow the 5.3 For how long is a parent required to pay child terms of marital agreements if to do so would not leave either party maintenance or provide financial support for their in a situation of real need. children? For example, can a child seek maintenance during university?

Orders usually last until the end of secondary education but can be extended beyond then, as far as the age of 25 or until completion of

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education. A child over the age of 16 can make an application for necessary. The order relates to whom the child lives with, not to maintenance under Schedule 1 of the Children (Jersey) Law 2002. where the child lives.

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?

Yes, they can. When making orders in respect of children under the Children (Jersey) Law 2002, the child’s welfare is paramount and it is assumed that delay is likely to prejudice the welfare of the child. 5.5 Can a child make a financial claim directly against Jersey their parents? The court must have regard to the “welfare checklist”, which can be summarised as follows: The ascertainable wishes of the child, the child’s physical, emotional and educational needs, the effect Yes, they can. of change on the child, the child’s age, sex, background and other characteristics, any harm the child has suffered or is at risk of 6 Children – Parental Responsibility and suffering, how capable the child’s parents are of meeting his or her Custody needs and the range of powers available to the court.

6.6 Without court orders, what can parents do 6.1 Explain what rights of custody both parents have unilaterally? For example, can they take a child in your jurisdiction whether (a) married, or (b) abroad? unmarried?

When a residence order is in force the parent in whose favour the Where a child’s father and mother were married to each other at the order is made can take the child abroad for up to a month without time of the birth they each have parental responsibility for the child. the agreement of the other parent. Where both parents have parental Where the parents are unmarried, only the mother has parental responsibility for a child they can make day-to-day decisions. Larger responsibility (Article 3, Children (Jersey) Law 2002). The father matters such as education and religion and medical interventions can gain parental responsibility by either: should be discussed with both parents. The consent of all people ■ Being named as the father of the child on the birth certificate with parental responsibility is required to consent to a change of a (applicable to births after 2nd December 2016). child’s name, adoption or relocation to another jurisdiction. ■ Entering into a parental responsibility agreement with the mother. 6.7 Is there a presumption of an equal division of time ■ Order of the court. between separating or divorcing parents?

6.2 At what age are children considered adults by the No, but frequently such shared care orders are made. court?

6.8 Are unmarried parents treated in the same way as Children are considered adults at 18 years old. married parents when the court makes orders on separation or divorce? 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)? Yes, except married couples can use the divorce legislation to deal with child maintenance. Residence orders last until a child is 16 but can be extended to 18 in special circumstances. Parental Responsibility lasts until the child 6.9 Is a welfare report prepared by an independent is 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 children? Does the court automatically make orders in A report is usually prepared by the Jersey Family Court Advisory relation to child arrangements in the event of divorce? Service (“JFCAS”). The children very rarely meet the judge.

The court does not automatically make orders in relation to children 6.10 Is there separate representation for children in your on divorce. If the parents cannot agree on whom the child should jurisdiction? live with, or how much contact he or she should have with a parent (or others) an application can be made to the court for an order under Yes, by virtue of Article 75 Children (Jersey) Law 2002. Article 10 Children (Jersey) Law 2002. An order under this article can designate: 6.11 What methods of dispute resolution are available to ■ Who a child lives with (residence order). resolve disputes relating to children? ■ With whom the child has contact (contact order). ■ Whether there should be a shared residence order. The following methods are available: mediation (including direct With a shared residence order, the court can determine the time the consultation with children); conciliation with JFCAS; arbitration; child spends with each parent and also impose other conditions as and negotiation.

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7 Children – International Aspects 7.4 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? Jersey is a signatory to the Hague Convention and the central authority is the Attorney General. Abduction cases are dealt with Not generally, although there are some exceptions. The parent can swiftly and well. always move; it is taking the children that causes problems. Jersey 7.2 If the court is making a decision on relocation of a 8 Overview child abroad, what factors are taken into account?

8.1 In your view, what are the significant developments in The welfare of the child is paramount and all the same criteria family law in your jurisdiction in the last two years? as mentioned in question 6.5 above apply. The parent who is planning to relocate with the child will need to provide the court Same-sex marriage. with full details about the accommodation and education plans for the child, the parent’s income, social network, family ties and the arrangements for contact with the left behind parent. 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction?

7.3 In practice, how rare is it for the custodial parent to be There needs to be divorce reform to bring in no fault divorce. There allowed to relocate internationally/interstate? also needs to be a tidying up of the legislation to take into account the new same-sex marriage provisions. Currently only opposite-sex If the parent has detailed specific plans, especially for maintaining spouses automatically get parental responsibility for their children; the relationship with the other parent, it is likely that they will be it is necessary to apply for a joint residence order or adoption in able to go, but it is a high bar. order for same-sex couples to both have parental responsibility. There also needs to be legislation in respect of surrogacy and assisted reproduction as there is currently no legislation at all.

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Barbara Corbett Nicholas Le Quesne Corbett Le Quesne Corbett Le Quesne 1a West’s Centre 1a West’s Centre St Helier St Helier Jersey Jersey JE2 4ST JE2 4ST

Tel: +44 1534 733 030 Tel: +44 1534 733 030 Email: barbara.corbett Email: nicholas.lequesne @corbettlequesne.com @corbettlequesne.com URL: www.corbettlequesne.com URL: www.corbettlequesne.com Jersey

Barbara Corbett is a family lawyer, fully qualified as an English solicitor Nicholas Le Quesne is an experienced English solicitor, Jersey and a Jersey advocate with well over 20 years’ experience. She is a Advocate and qualified collaborative lawyer. Nicholas has expertise founding partner of the specialist family law firm, Corbett Le Quesne. in all areas of family law and is committed to helping clients resolve Barbara is a Fellow of the International Academy of Family Lawyers, a problems in a positive and conciliatory manner wherever possible. collaborative lawyer, mediator and family arbitrator. She has expertise Many of Nicholas’ cases have an international element; he frequently in all areas of family law, particularly with an international element, advises foreign lawyers on Jersey law, especially in respect of cross- including marital agreements, complex finance cases, relocation and jurisdictional pre-nuptial agreements and cases involving trusts and child abduction. She is based in Jersey, Channel Islands. business assets in Jersey. Nicholas was listed in the inaugural 2018 eprivateclient Channel Islands Top 35 Under 35, a new annual list of top young private client practitioners in Jersey and Guernsey.

Corbett Le Quesne is a specialist family law firm based in Jersey, Channel Islands. The firm advises on all aspects of family law from complex financial arrangements arising out of divorce involving trusts and business assets, through to complex cases involving the care and support of children. We are able to advise on international matters including child relocation and the protection of assets and matters closer to home such as Jersey housing qualifications and adoption and surrogacy. The firm’s ethos is to provide clients with peace of mind by taking a holistic approach to family law matters and, wherever possible, working to achieve resolution out of court.

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Russia Julie Losson

Villard Cornec & Partners and Attorney Zharov’s Team Anton Zharov

The sole ground for divorce is “an irretrievable breakdown of the 1 Divorce marriage”. The fact that one of the spouses expresses his/her wish to end the marriage is enough for the judge. No specific separation 1.1 What are the grounds of jurisdiction for divorce period is required. proceedings? For example, residence, nationality, Russian law does not envisage the possibility of filing a joint divorce domicile, etc.? petition with the court (only with the Civil Acts Registration Office on the conditions mentioned above). In cases where both spouses Courts in the Russian Federation have jurisdiction in divorce cases want an uncontested divorce in the presence of minor children, one if: of them must file for divorce and the other must agree afterwards to ■ One of the spouses is a Russian national, irrespective of the get a divorce order on the previously and mutually agreed conditions. domicile/place of residence of both spouses/of one of them; ■ one of the spouses resides in Russia; or 1.3 In the case of an uncontested divorce, do the parties ■ the respondent has property in his/her own name on the need to attend court? territory of the Russian Federation. The divorce of a Russian national who married a foreign or stateless Under Russian law, Russian or foreign nationals have the right person is exclusively within the jurisdiction of the Russian courts if to handle their divorce in court either in person or through a both spouses reside in Russia. representative. For financial disputes, please see question 2.11. Although judges respect the parties’ personal involvement in court Regarding the criteria of residence, it must be noted that there is proceedings, they cannot require them to attend court in person if no concept of “domicile” or “habitual residence” in Russian law. they are represented. The place of residence is where a person permanently or primarily In the case of an uncontested divorce in front of the Civil Acts resides as an owner, tenant or on another legal basis. But also, even Registration Office, at least one of the spouses must attend the if a Russian national relocates abroad, as long as he/she maintains procedure. his/her official “registration” in Russia (as everybody does), he/she will be considered as a Russian resident and on that basis can be 1.4 What is the procedure and timescale for a divorce? sued in Russian courts.

In the administrative procedure, the marriage is terminated one 1.2 What are the grounds for a divorce? For example, is month after the filing of the joint petition. there a required period of separation, can the parties have an uncontested divorce? In the case of a judicial process, as a general rule, a divorce decision cannot be rendered earlier than one month after filing the writ. A marriage can be terminated in two ways under Russian law. The timescale for a first instance Russian divorce is, by law, two months and, in reality, from three to six months. Once the divorce In the absence of minor children and if both spouses consent to is pronounced by the judge during the last hearing, the decision divorce, the administrative procedure applies (this is also the case must be written in its final and motivated form within five days (but if one of the spouses is declared by the court missing or legally generally it takes between 10 and 30 days to get it). If the first incompetent or sentenced to more than three years’ imprisonment). instance divorce decision is not appealed, it shall enter into force A divorce petition must be filed with the Civil Acts Registration one month after the decision is published in its final form. An Office. With the mandatory presence of at least one of the spouses, appeal usually takes from one to four months. These delays do not the marriage is terminated within one month. This procedure also take into consideration the lengthening of the procedure in cases applies to foreign nationals as soon as they live in Russia. where one of the parties lives abroad (and therefore the possible With minor children or if one of the spouses contests any question application of the Hague Convention of 15 November 1965 on the arising upon a divorce, the judicial procedure applies. Non- Service Abroad of Judicial and Extrajudicial Documents in Civil or commercial disputes among individuals are considered by civil courts. Commercial Matters by which Russia is bound). Divorces involving parenting disputes are within the competence Thus, if spouses do agree on the divorce, it may take approximately of general jurisdiction courts (district courts) and divorces without two or three months and, without any agreement, about six months parenting disputes are heard by justices of peace.

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or more depending on the spouses’ place of residence and on one ■ the competing jurisdiction has a treaty on mutual recognition party’s will to fight. Nevertheless, delays are, as a rule, substantially of court orders in family matters with Russia (like the 1996 less than in the Anglo-American system, and the Civil Procedure Hague Convention on parental rights) or applies the principle Code is not sympathetic to delaying tactics. of international (reciprocity or courtesy) involving the mutual recognition of judicial acts. If one of the spouses proves that the foreign court order is not 1.5 Can a divorce be finalised without resolving other enforceable in Russia, the Russian court will continue to resolve associated matters? For example, children and finances. the divorce and two procedures will be carried out simultaneously.

A Russian divorce can be finalised separately from the resolution of 2 Finances on Divorce Russia matters on finance or children. If one of the spouses files separate claims dealing with finances or children, they will be dealt with the divorce issue. However, in 2.1 What financial orders can the court make on divorce? the absence of such claims (independently of the consent of both parents), the judge does not raise those questions by himself and they During the divorce proceedings, in cases where one or both spouses can be resolved separately (before or after the divorce proceeding). raise(s) a special claim, the court may examine the questions of: ■ separation of assets (property and debts, taking into account that financial settlements can only take place during the 1.6 Are foreign divorces recognised in your jurisdiction? marriage or up to three years after its termination); ■ child support (see the answers to section 5); and A foreign divorce does not need to be legally registered or judicially ■ spousal maintenance (noticing that it can be allocated only in recognised in Russia to produce its effects. Divorce orders granted very specific situations – see question 2.6). by foreign courts, and administrations are considered as valid if contested by neither spouse. 2.2 Do matrimonial regimes exist and do they need to be addressed by the court on divorce? Is there a default 1.7 Does your jurisdiction allow separation or nullity regime? proceedings? Matrimonial regimes do exist under Russian law, and the court in Under Russian law, a valid marriage is a union of a man and a charge of the divorce has to deal with the question of separation woman, both of whom should be at least 18 years of age, and who of assets only if one of the spouses raises a special application for voluntarily commit themselves to starting a family. liquidation or financial relief. The legal validity of a marriage entered into on the territory of The Russian default matrimonial regime is a regime of community the Russian Federation is determined by the national laws of the property. spouses at the time of entering into the marriage. Property acquired by the spouses with their joint funds during If Russian law is applicable, a Russian court may declare a the marriage, regardless of which of the spouses’ names it was marriage void on one of the following grounds: registered under (except for gifts or inheritances), is owned jointly ■ if either spouse was not of a marriageable age (16 years in by both spouses and is divided upon divorce, annulment, or death. It exceptional cases); also comprises their income, such as remuneration as an employee, ■ if either spouse was already married at the date of the dividends, social security and pension benefits. marriage; The property rights belong equally to both spouses as there is a ■ where a spouse was mentally disabled at the time of the presumption of a 50/50 distribution of all properties acquired during marriage; the marriage. If it is proved that the property was received by gift ■ where spouses are close relatives in the line directly ascending or inheritance or acquired prior to the marriage or by one of the or descending; spouses during marriage but with his/her own funds, it is not subject ■ if the marriage was entered into involuntarily or is fictitious to division. (without intent to create a family, which factually means Spouses can decide to enter into a pre-nuptial or a post-nuptial under Russian law to have a common budget); or agreement in order to opt for a regime of separation of assets. ■ if one of the spouses hid the fact that he/she was infected with HIV or a venereal disease. Russian law does not provide any special procedure in the case of 2.3 How does the court decide what orders to make? What factors are taken into account? “legal separation”.

The court decides according to the default regime rules (50/50) or to 1.8 Can divorce proceedings be stayed if there are the content of the pre-nuptial or post-nuptial contract. proceedings in another country? In some exceptional circumstances, the court can deviate from the default rule of equal shares; for example, when one of the spouses If there are proceedings pending in a court of a foreign jurisdiction dissipated the community property or in the interests of minor children. between the same parties, with the same subject matters and grounds, the Russian court may stay or terminate the divorce proceedings. Regarding properties located outside Russia, usually, Russian courts do not even take them into consideration in the liquidation of assets as But this applies only in the event that the foreign court order may be it is complicated for the judges to acquire any relevant information on recognised and enforced in Russia, which is possible in two situations: those properties (see question 2.10 on trusts). ■ the order does not require any enforcement (paternity or divorce rulings); and/or

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2.4 Is the position different between capital and 2.8 Do the courts treat foreign nationals differently on maintenance orders? divorce, if so, what are the rules on applicable law? Can the court make orders applying foreign law rather Russian judges do tend to render maintenance orders, but in than the law of the jurisdiction? principle, there is no difference between capital and maintenance orders, except in the way in which they will be enforced. Under Russian law, foreign individuals enjoy the same rights to sue and be sued in Russian courts as Russian individuals and companies. Russian courts have jurisdiction in financial court proceedings, 2.5 If a couple agrees on financial matters, do they need where at least one of the spouses is a foreign national, and the

Russia to have a court order and attend court? defendant is resident in Russia or has property on its territory. All questions dealing with the separation of assets can be dealt with Russian courts do not decide on real estate properties located directly by the spouses through a notary agreement and without outside Russia. any court decision (see question 2.12 on mediation). Russia is a Russian courts can make orders applying foreign law. Financial civil law jurisdiction with official notaries competent to split and rights and obligations of the spouses are governed by the law of allocate real estate properties through deeds registered at the land the country where they have a common place of residence. If they and property registry. do not have one, Russian courts apply the law of the country where If the court has to deal with such a matter, the spouses can attend the they last had a common place of residence. If neither applies, court personally or through a representative. spousal rights and obligations are governed by Russian law. If the spouses do not have a common nationality or place of residence, they may choose the law that will be applicable to 2.6 How long can spousal maintenance orders last and are such orders commonplace? their financial relations and maintenance obligations by means of a pre-nuptial or post-nuptial contract. They may also choose the Spousal maintenance orders are quite rare as the grounds according appropriate forum to deal with any future dispute arising from their to which a spouse or a former spouse is entitled to them are very contract. limited, despite the general provision stipulating that spouses must support each other financially. The grounds are: 2.9 How is the matrimonial home treated on divorce? ■ the spouse or former spouse is disabled (the disability must occur during the marriage or within one year of its There is no particular rule or treatment concerning the matrimonial termination); home. ■ the spouse or former spouse has reached pension age (or will reach pension age within five years of the divorce) and has insufficient means to meet the costs of living; 2.10 Is the concept of “trusts” recognised in your jurisdiction? ■ the spouse has the care of the common child who presents disability; The concept of “trusts” is generally not recognised in Russia. ■ the spouse is pregnant; and Even if trusts are often used by well-to-do Russians as a wealth ■ the spouse has the care of the common child who is under management and succession instrument, a trust is not recognised three years old. as an independent entity. Therefore, general rules for tax residency For the first two grounds, maintenance can be ordered for lifetime, apply directly to trustees to establish their tax liabilities (if a trustee for the third ground, maintenance lasts until the child reaches the age is an individual residing in Russia, his/her income subject to of majority, and for the two final grounds, maintenance supposedly personal income tax includes income from the trust asset). lasts until the child is three years old. At present, just the concept of “fiduciary management” Spousal maintenance is not aimed at keeping the same living (“Doveritelnoe Upravlenie”) exists in Russian law (introduced in standards for former spouses and can be refused in consideration 1993). However, it does not imply a transfer of ownership for the of the spouse’s misconduct or the marriage’s duration. Amounts entrusted property as opposed to the English trust. allocated for spousal support are therefore not large. If a Russian Further, despite the fact that assets owned by third parties (in trust or judge must give a decision on this matter, one cannot expect to receive owned by legal entities) are excluded from the marital community comfortable life support based on the logic of “compensation” or property, the Russian Family Code has “anti-avoidance provisions” “punitive damages”. that allow a spouse to request the tracing of marital assets dissipated by another spouse and possibly held by third parties. Russian courts 2.7 Is the concept of matrimonial property recognised in have already considered claims against trust assets based on these your jurisdiction? provisions. Eventually, new controlled foreign company (CFC) rules were The concept of matrimonial property is recognised in Russia (see introduced in 2014 and expressly recognise certain trusts as “foreign question 2.2). non-corporate controlled structures” for income tax payments. The Family Code recognises a contractual regime of matrimonial Control is a key criterion to define whether an entity is CFC. It is property which allows spouses to agree contractually property rights defined very broadly as “the ability to exert a determining influence” and obligations during the marriage or after its dissolution. and decisions will be made by Russian courts. Also, the Common Reporting Standard (CRS), developed by the OECD, is a globally co-ordinated approach to the disclosure of income earned by individuals and organisations outside their country of tax residence. Under this standard, jurisdictions obtain

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financial information from their financial institutions and exchange notary (there is no need for the contract to be witnessed, and there that information with other jurisdictions on an annual basis. Russia is no obligation of full disclosure or independent legal advice) and is part of the jurisdictions taking commitments from 2018. determining the spouses’ financial rights and obligations. Although CFC and CRS rules are mainly tax-driven, disclosure of It may not regulate any other matters apart from those dealing with information regarding trusts and other structures would mean that financial issues between the spouses (see question 3.2). Therefore, this information will become more accessible in divorce cases. inheritance matters and issues relating to children (including child support or their shares in property) cannot be dealt with.

2.11 Can financial claims be made following a foreign On the questions of applicable law and , see divorce in your jurisdiction? If so, what are the question 2.8. grounds? A marital agreement can be declared void by a Russian court (the Russia limitation period for claim being one year) in the case of fraud, As mentioned in questions 2.1 and 2.6, claims for separation coercion, etc. or if it restricts the legal capacity of one spouse, or of assets, child support or spousal maintenance can be made in the legal right for maintenance of a disabled spouse. It may also Russia following a foreign divorce as long as Russian courts have be declared void if it contains any waiver of the right to challenge jurisdiction to hear the case and those questions were not resolved it in court, or if it puts one spouse in “an extremely unfavourable by the foreign judge of a reciprocating jurisdiction or the foreign position”. decision cannot be recognised by Russian courts (see question 1.8). Foreign marital agreements are recognised with difficulty by When one spouse is a foreigner, Russian courts always have Russian courts, especially if the spouses had a common place of jurisdiction on financial disputes if the defendant resides in Russia residence in Russia when entering into the marital agreement and or has property on its territory. For spousal or child support matters, decided to sign a contract under a foreign law. Russian courts can also be seized on the basis that the claimant resides in Russia. 3.2 Can marital agreements cover a spouse’s financial In particular, Russian courts have exclusive jurisdiction in relation claims on divorce, e.g. for maintenance or to real estate properties located on its territory. Moreover, questions compensation, or are they limited to the election of regarding the children can be reviewed at any time if a new element the matrimonial property regime? occurs in the family situation. As long as they deal with financial issues between the spouses, 2.12 What methods of dispute resolution are available to Russian marital contracts can contain provisions on the liquidation resolve financial settlement on divorce? E.g. court, of assets and maintenance obligations in the case of separation or mediation, arbitration? divorce.

Financial matters can be resolved on a voluntary basis at any time 3.3 What are the procedural requirements for a marital prior to the court decision, even if proceedings are already pending. agreement to be enforceable on divorce? Any agreement has to be signed by both spouses (or ex-spouses) before a notary or a mediator (it has the force and effects of a Please see question 3.1. A Russian marital contract must be contract) and, if the parties so wish, it can be further homologated signed by both spouses before a notary. There is no need for the by the court. contract to be witnessed and no requirement for independent legal The first Russian act to govern non-court-based processes, advice. However, it should not “put one spouse in an extremely in particular in family law, is the Federal Act on Alternative unfavourable situation”. Procedures of Dispute Resolution with the Participation of a Mediator (Mediation Act). The main principles of the Russian mediation procedure are: voluntarism of both parties; equality of 4 Cohabitation and the Unmarried Family rights; confidentiality; cooperation; impartiality; and independence of the mediator. 4.1 Do cohabitees, which do not have children, have There is no legal requirement to attempt mediation before financial claims if the couple separate? What are the introducing judicial proceedings. However, at any stage of court grounds to make a financial claim? proceedings, the Russian court has the right to postpone them for mediation purposes (for a maximum of 60 days). This requires the Russian law only recognises a specific matrimonial regime with consent of both spouses and the signing of an agreement on the respect to property co-owned by spouses in marriages between a provision of mediation. As soon as the parties enter into a mediation man and a woman. There is no special legal regime for other forms agreement, neither of them can initiate court proceedings for the of partnership or relationship. duration of the period allocated for the mediation procedure. In those cases, if two partners acquire property jointly, it is co-owned in shares by them based on their contribution to its acquisition or 3 Marital Agreements on an agreement between them. If the couple separate, cohabitees/ partners do not have any other financial claims apart from the separation of the assets or shares which they co-own. If the asset is 3.1 Are marital agreements (pre and post marriage) just put in the name of one partner, the other partner does not acquire enforceable? Is the position the same if the agreement any property or equitable rights in this asset. is a foreign agreement?

4.2 What financial orders can a cohabitee obtain? Under Russian law, pre-nuptial or post-nuptial contracts are both considered as a marital agreement, signed by both spouses before a Please see the answer to question 4.1.

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4.3 Is there a formal partnership status for cohabitants 5.4 Can capital or property orders be made to or for the (for example, civil partnerships, PACS)? benefit of a child?

There is no formal partnership status for cohabitants and civil Capital or property payments for child support can be only agreed partnerships are not legally recognised. between the parents, not ordered by a court.

4.4 Are same-sex couples permitted to marry or enter 5.5 Can a child make a financial claim directly against other formal relationships in your jurisdiction? their parents? Russia Homosexuals are not permitted to marry under Russian law. Under Russian law, a child cannot make a financial claim directly Russian law does not recognise same-sex couples and does not offer against his/her parents. One of the parents, the legal guardian (if any special regimes for people in same-sex relationships. appointed), the tutorship authorities or the prosecutor can act on behalf of the child.

5 Child Maintenance 6 Children – Parental Responsibility and Custody 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? 6.1 Explain what rights of custody both parents have Regardless of the parents’ marriage, the parent with whom the child in your jurisdiction whether (a) married, or (b) lives has the right to request, from the other parent, child support unmarried? under Russian law. Please see question 2.1. As a presumption of equal parental responsibility, both parents have Parental rights and responsibilities are determined by the law of the the same rights and duties with respect to their children, regardless country of the parent’s common place of residence. If there is no of whether the parents are married or not. such a place of residence, the law of the child’s nationality applies. In any case, the court can also apply the law of the country where the child is habitually resident (as for child support cases). 6.2 At what age are children considered adults by the court?

5.2 How is child maintenance calculated and is it Children are considered adults by the court at the age of 18. administered by the court or an agency?

In the absence of an amicable agreement between the parents on the 6.3 What is the duration of children orders (up to the age payment of alimony for their children, the amount is determined by of 16 or 18 or otherwise)? the court. The minimum amount of child support is set by law at the rate of: Children orders generally last until the child reaches the age of 18 ■ One-quarter of a parent’s income for one child. years old. ■ One-third of the parent’s income for two children. ■ One-half of the parent’s income for three or more children. 6.4 What orders can the court make in relation to children? Does the court automatically make orders in By agreement, the parents can set the amount at a higher rate or relation to child arrangements in the event of divorce? determine the child support as a lump sum payment (rather than a share of income) or as a transfer of real estate property. The divorce judge does not make orders in relation to child The level of child support can be decreased or increased by the arrangements if one of the parents does not raise a special claim judge depending on the family and financial circumstances. Under regarding such matters. specific conditions legally provided, the court can also determine The court can make orders on the following matters: the child support in a lump sum (for example, if the debtor does not have any salary in Russia or has a fluctuant income). ■ the residence of the child with one of the parents; ■ the communication between the child and the parent not primarily residing with the child; 5.3 For how long is a parent required to pay child ■ the child’s relocation abroad; maintenance or provide financial support for their children? For example, can a child seek maintenance ■ the studies or any serious medical issue; during university? ■ the child’s support; and ■ the limitation of parental rights. Under Russian law, maintenance obligations end when the child reaches the age of 18. 6.5 What factors does the court consider when making If the child is unable to work (due to mental illness), alimony may orders in relation to children? continue after the majority. The court considers the child’s age, the living conditions of each parent, the relationship between each parent and the child, the attachment of the child to brothers, sisters and other family members, the possibility and capacity to provide proper conditions

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for the education and development of the child (for example, the type of professional activities and the parents’ financial and family 6.11 What methods of dispute resolution are available to situation, etc.), the child’s timetable and also, potentially, the moral resolve disputes relating to children? capacities of each parent. The court may invite the parents to be helped and advised by a Until the child is 10 years old or capable of expressing his/her registered mediator, but this is not required by law. Mediation and wishes, primary care is usually granted to the mother, unless it other alternative means of dispute resolution are still very rare and is proved that she cannot accomplish her duties. The father will not commonly used in Russia. Please see question 2.12. generally be granted two days every fortnight to spend with the child, and a few weeks during the school holidays.

General guidelines are offered in the Decree of the Plenum of the 7 Children – International Aspects Russia Superior Court of the Russian Federation of 27 May 1998 n°10 about the application by the courts of the law in conflict resolution on children’s education. 7.1 Can the custodial parent move to another state/ country without the other parent’s consent?

6.6 Without court orders, what can parents do Under Russian law, the other parent’s consent to remove a child unilaterally? For example, can they take a child from Russia is not required (within the limits of the provisions abroad? newly adopted following the accession to Russia to the 1980 Hague Convention – see question 7.4). Such consent is usually required Without a court order, parents can sign written agreements before a for long-term visa purposes and the parent, wishing to relocate with notary to settle all the issues regarding a child’s custody and contact the child, is not granted this consent. Following this, a ban and the rights, support, right to move abroad, etc. child’s name can be placed on a customs control list at the request of On the question of relocation, see question 7.1. a parent, and a relocation claim must be filed by the other parent in order to procure a court order authorising the child to be removed. 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 7.2 If the court is making a decision on relocation of a child abroad, what factors are taken into account? Under Russian law, there is no presumption of an equal division of time between the parents in the case of separation or divorce. The Apart from the general rules on children’s rights and international legal equality of the parental “rights and duties” does not imply the treaties (such as the United Nations International Convention on the right to spend an equal amount of time with the child. Rights of a Child), there are no legal criteria to guide the Russian Nevertheless, alternative residence is possible, but in practice, the court in making a decision on relocation. judge fixes the child’s residence with the mother (except in special Recurrent criteria that come out from case law are: cases) and the father is granted access and accommodation. ■ Physical conditions to raise, educate and support the child. ■ Conditions for the child’s development. 6.8 Are unmarried parents treated in the same way as ■ The child is already registered and actually living with the married parents when the court makes orders on mother. separation or divorce? ■ Young age of the child requiring maternal presence. ■ Necessary “routine” for a young child. Under Russian law, unmarried parents are treated in the same way as married parents when the court makes orders on separation or divorce. ■ No contribution to the child’s life. ■ State housing: safety and comfort. ■ Psychological expertise. 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge ■ Previous imprisonment. alone? If so, does the child meet the Judge? ■ The child’s desire to live with one of the parents. Courts have to meet the needs and interests of the moving parent A welfare report is always prepared by the tutorship organ and (usually the main custodian) on the one hand, and the need of the the court takes its decision based on that report. If the child can parent remaining in Russia to maintain quality contact with their express his/her opinion, the tutorship organ will discuss with him/ child on the other. her in an informal way during its investigation at the child’s place of residence. 7.3 In practice, how rare is it for the custodial parent to be Where a child is over the age of 10 years old, he/she is summoned allowed to relocate internationally/interstate? and interrogated by the judge. The court cannot take a decision affecting the child’s interests As soon as all conditions are given to the court that the child will without having received the report from the tutorship authority. be sufficiently cared for in the removal country and that the other However, the court may disagree with the report or may ignore the parent was not paying enough attention to the child, Russian courts child’s opinion (if it is contrary to his/her interests). will permit international relocation.

6.10 Is there separate representation for children in your jurisdiction?

Separation representation does not exist under Russian law.

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Conversely, the first British/Russian 1996 Convention case was 7.4 How does your jurisdiction deal with abduction settled in November 2014, in which the Russian courts ordered the cases? For example, is your jurisdiction a party to the return of five and seven year old boys to their habitual residence in Hague Convention? England after they were taken on holiday to Russia by their Russian father, who then failed to return with them (Neustadt v Neustadt Russia is a party to the 1980 Hague Convention on the Civil (2013) MCC). Aspects of International Child Abduction (which came into force On 4 August 2016, the Russian Supreme Court rendered for the on 1 October 2011) and the 1996 Hague Convention on Parental first time a decision under the 1980 Hague Convention. It refused Responsibility and Protection of Children (which came into force to order the return of a three year old girl to Finland despite the on 1 June 2013).

Russia first instance court decision which accepted it initially (Ushakov v The Central authority for both Conventions is the Department for Kulikova (2016)). children’s rights protection state policy of the Ministry of Education For the last year and a half, about 15 Russian court decisions and Science of the Russian Federation. definitively ordered the return of children from Russia to another Russia’s accession to the 1980 Hague Convention has already been Member State. This is still insignificant compared to the number accepted by 62 countries. Although in Russia children can be taken of claims for the return of a child/children filed each year to the abroad by one parent without written permission from the other (see Russian Central Authority. question 7.1), according to the 1980 Hague Convention one can talk about international parental abduction if: ■ the child is under 16 years old; 8 Overview ■ the child resides in Russia; and ■ the child is removed abroad or is being detained there without 8.1 In your view, what are the significant developments in the permission of his/her legal guardian. family law in your jurisdiction in the last two years? Eight district courts throughout Russia were granted jurisdiction in Hague matters, including the power to grant injunction orders In Russia, the major evolution in international family law is due prohibiting the defaulting parent to change the child’s place of to the more patriotic approach in the majority of cases implying a residence. foreign element. Despite the principle of uniformity of judicial practice, Russian court decisions do not have the nature and power of precedent and 8.2 What are some of the areas of family law which you neither case can be viewed as binding on courts. It will therefore think should be looked into in your jurisdiction? take years for the Russian courts to develop a uniform approach in the return of children from outside Russia and in the recognition of The two main issues in Russian law which should be considered foreign family court decisions. very seriously concern, firstly, the notification of a procedure In 2011, the European Court of Human Rights decreed that Russia pending before a Russian judge to a defendant living outside Russia had breached a mother’s human rights under Article 8 (which (too many decisions are rendered without any respect to the 1965 includes a right for a parent to have measures taken by national Hague Convention to which the Russian Federation is party) and, authorities to reunite them with their children from whom they have secondly, the lack of detailed and precise rules on the liquidation of been separated) because it took the authorities three years to reunite assets when there is no pre-nuptial or post-nuptial agreement. the boy with his mother.

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Julie Losson Anton Zharov Villard Cornec & Partners Attorney Zharov’s Team Street Vozdvizhenka 10 5 Build. 5, Petrovskiy pereulok 125009 Moscow Moscow, 107031 Russia Russia

Tel: +7 965 298 49 51 Tel: +7 495 227 01 21 / +370 5 2143344 Email: [email protected] Fax: +7 495 624 23 27 URL: www.interjurist-avocats.ru Email: [email protected] URL: www.azh.ru Russia Qualified Attorney – Paris Bar Lawyer, member of the Bar Association of Moscow and Head of “Attorney Zharov’s Team”. Partner and co-founder of the French law firm “VILLARD CORNEC & PARTNERS”. Anton Zharov has been practising law in Russian courts since 2000, specialising exclusively in family and juvenile law. As a family law Registered on the list of foreign lawyers of the Ministry of Justice of the expert, he took part in drafting the Custody and Trusteeship Law, as Russian Federation. well as amendments to the Family Code of the Russian Federation Legal Advisor for the French Consulate in Moscow. and state decrees on child adoption and custody. He also contributed to the development of the training programme for prospective Russian Medal of Merit from the Russian Federal Chamber of Lawyers for the adopters. protection of rights and freedoms of citizens (2015). Since 2006, Mr. Zharov has been lecturing on legal aspects at the Member of the International Academy of Family Lawyers. oldest Russian School for Adopters (part of the “Family” Charity Fund). A member of the Paris Bar for almost 10 years, Julie Losson co- As of 2013, he heads “Attorney Zharov’s Team”, the only Russian law founded the French law firm “VILLARD CORNEC & PARTNERS”, and firm that specialises solely on family and children rights protection, since 2012, has managed its Moscow office under the name “OOO including transnational divorce disputes and foreign adoption cases. Interjurist”. She is experienced in general international family law, especially with Russian citizens. She defends cases involving financial Anton Zharov is the author of five papers on the subject of termination disputes pertaining to divorce settlements and inheritance issues of parental rights and complex adoption cases, as well as over 200 (pre-nuptial agreements, removal and jurisdiction disputes, child and professional and editorial publications on family and juvenile law. He spousal support, child abduction, registration and enforcement of was elected in 2016 as the Scientific Director of the Institute of Family foreign court decisions, etc.). Educational and Legal Programs (Moscow). Languages: French; Russian; and English. He also keeps a blog on family and juvenile law at www.zharov.info.

VILLARD CORNEC & PARTNERS was founded in 1920 and today specialises in both corporate and personal or property issues with an international dimension (e.g. complex divorce or estate cases involving a business and/or property abroad). The firm’s key characteristic is its ability to act as a “user friendly interface” between both the French legal system and the client’s, for both business and personal problems. The firm has offices in Paris, Nice and Moscow. Attorney Zharov’s Team is a Russian law firm specialising in family law and children and parents’ rights protection. Due to its narrow specialisation on children issues, the firm has unique experience in the practice of Russian and international law (including theHague Conventions of 1996 and 1980).

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Scotland Gillian Crandles

Turcan Connell Jennifer Macdonald

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

1.1 What are the grounds of jurisdiction for divorce Where no financial orders are sought, there are no children under 16 proceedings? For example, residence, nationality, and one of the separation grounds at question 1.2 above is available, domicile, etc.? parties can use the “simplified divorce procedure”. If both parties are in Scotland, divorce will generally be granted within two months. Jurisdiction for divorce is regulated by EC Regulation 2201/2003 Where the simplified procedure is not available, a full divorce action (“Brussels II bis”), and the Domicile and Matrimonial Proceedings will be commenced at either the local Sheriff court or the Court Act 1973 (“1973 Act”). The Scottish courts will have jurisdiction of Session (Scotland’s highest civil court). Formal legal pleadings where both spouses are habitually resident or domiciled in Scotland; issued by the pursuer set out the orders sought and must be served both spouses were last habitually resident and one still remains in on the defender to seise the court’s jurisdiction. The defender has Scotland; the defender is habitually resident in Scotland; or the strict time limits to lodge defences narrating the basis of opposition. pursuer is habitually resident and has resided in Scotland for at least Counter orders can be sought by the defender without bringing a a year or is domiciled in Scotland and has resided here for at least separate action. six months preceding the application. Where defences are lodged, in the absence of agreement, there will Where no EU State has jurisdiction under Brussels II bis, and be an evidential hearing to determine disputed issues. Timescales provided the defender is not a national of another EU State or vary according to the particular courts and the circumstances of each domiciled in Ireland, the 1973 Act permits an action to be brought case. Contested actions in the Court of Session can take between in Scotland if either of the parties are domiciled in Scotland on the eighteen months and two years. Timescales in the Sheriff court are date when the action is commenced. generally shorter. Most divorce proceedings are held in open court. The pursuer may apply for divorce in an undefended action by 1.2 What are the grounds for a divorce? For example, is submitting sworn statements and other paperwork to the court, after there a required period of separation, can the parties which divorce will likely be granted within two months. have an uncontested divorce?

1.5 Can a divorce be finalised without resolving other The applicant must establish that the marriage has broken down associated matters? For example, children and irretrievably or that an interim gender recognition certificate has finances. been issued to one of the parties. Irretrievable breakdown must be demonstrated by one of the following: Except in limited circumstances, divorce brings an end to the ability ■ since the marriage, the defender (non-applicant spouse) has of parties to make financial claims arising from their marriage. committed adultery; All financial matters must be resolved before or at the time of the ■ since the marriage, the defender has behaved in such a way divorce being granted. that the applicant cannot reasonably be expected to cohabit Where a divorce action is raised prior to financial and/or child- with the defender; related matters being resolved, the pleadings may include formal ■ the parties have lived separately for one year or more and requests for financial provision and orders relating to children. If both parties consent to divorce; or the defender fails to respond within the required timeframe, decree ■ the parties have lived separately for two years or more. of divorce may be granted in absence and the opportunity to make financial claims will be lost. 1.3 In the case of an uncontested divorce, do the parties In all cases, the court will only grant divorce if it is satisfied with the need to attend court? care arrangements for children under 16.

Parties are not usually required to attend court where divorce is 1.6 Are foreign divorces recognised in your jurisdiction? uncontested.

Divorces granted in one part of the UK are automatically recognised in all component parts.

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With limited exceptions, a divorce granted by a court in another EU Member State will be recognised under Brussels II bis. 2.3 How does the court decide what orders to make? What factors are taken into account? Where divorce was granted outside the EU, it will be recognised in Scotland if: it was obtained with the involvement of a public body; The Family Law (Scotland) Act 1985 (“1985 Act”) provides a one of the parties was a national of, habitually resident or domiciled framework for financial provision on divorce. The overriding in the country in which divorce was obtained; and the divorce is principle is to ensure fair sharing of the “matrimonial property” effective in that country. (broadly, the net value of all assets acquired by the parties during the Where an overseas divorce is granted without the involvement of a marriage which are still held at the date of separation, except assets public body, it will be recognised only if both parties are domiciled acquired by way of gift or inheritance from a third party which in countries in which the divorce is recognised. If either party was remain in the same form throughout the marriage). Scotland habitually resident in the UK for 12 months before the divorce, it Matrimonial property will be shared equally unless there are will not be recognised. circumstances which justify otherwise, such as where the source of Recognition of foreign divorces can be refused if one party was not the funds used to acquire an asset did not derive from the income or given sufficient notice or was denied an opportunity to take part in efforts of the parties during the marriage. the proceedings, or otherwise on public policy grounds. Fair account should be taken of any economic advantage derived by one party from contributions of the other, and of any economic 1.7 Does your jurisdiction allow separation or nullity disadvantage suffered by either party in the interests of the other proceedings? party or the family. The economic burden of caring for children under the age of 16 should be shared fairly between the parties. The same grounds apply to proceedings for judicial separation as Where one party has been substantially dependent on the financial those which apply on divorce. The rights and obligations arising support of the other, they should be awarded such provision as is from the marriage continue. reasonable to enable them to adjust to the loss of support, over a Nullity proceedings can be brought where one or both parties to the period not exceeding three years. A party who is likely to suffer marriage lacked legal capacity, did not consent, where the parties serious financial hardship as a result of the divorce should be were ineligible to marry, or where one party is incurably impotent. awarded such provision as is reasonable to relieve him or her of Both parties have the same rights to apply for financial provision as hardship over a reasonable period. they would on divorce. The objective is to distribute the matrimonial property in such a way that, having regard to the principles above and the resources 1.8 Can divorce proceedings be stayed if there are available to the parties, a fair division is achieved. proceedings in another country?

2.4 Is the position different between capital and Under Article 19 of Brussels II bis, the Scottish courts must sist maintenance orders? (stay) proceedings if there are proceedings in another EU Member State which were raised first lis( pendens). Orders for capital and maintenance are both considered with Within the UK, the 1973 Act affords priority to the jurisdiction reference to the principles outlined at question 2.3. where the parties last resided together. Where either party was habitually resident in that jurisdiction for one year before the parties 2.5 If a couple agrees on financial matters, do they need last lived together, proceedings in any other part of the UK must be to have a court order and attend court? sisted, regardless of where proceedings were first raised. In other cases, the Scottish courts have discretion to sist on the basis Often parties negotiate the terms of settlement without applying of forum non conveniens. The party seeking the sist must show that to the court for any orders (except divorce itself). Where financial there are existing proceedings elsewhere, and that it would be in the matters are agreed, the terms of settlement can be embodied in a interests of justice for the case to be heard there. binding and enforceable contract called a Minute of Agreement. Where agreement is reached, no court order is required in relation 2 Finances on Divorce to finances.

2.6 How long can spousal maintenance orders last and 2.1 What financial orders can the court make on divorce? are such orders commonplace?

The main financial orders are: There is a strong emphasis on achieving a financial clean break. ■ payment of a capital sum; Awards of periodical allowance are the exception rather than the ■ transfer of property; norm and will only be awarded if a capital sum or property transfer ■ payment of periodical allowance (maintenance post-divorce); would be inappropriate or insufficient. In all but the most extreme circumstances, orders for periodical allowance are limited to a ■ a pension sharing order; and maximum period of three years from divorce. ■ incidental orders such as the sale of property. Spouses owe an obligation of maintenance (known as aliment) to each other whilst they are married. The amount is determined by 2.2 Do matrimonial regimes exist and do they need to be reference to the needs, resources and earning capacities of each addressed by the court on divorce? Is there a default party. The obligation subsists only until divorce is granted. regime?

There is no default matrimonial regime.

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they will not go to court. If the process breaks down, they 2.7 Is the concept of matrimonial property recognised in must instruct other solicitors to represent them in court. your jurisdiction? ■ Arbitration provides an alternative to litigation where parties refer the resolution of contentious matters to an Arbitrator. Yes; please see question 2.3 above. The process is usually quicker and cheaper than litigation, and is entirely confidential. 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? 3 Marital Agreements Can the court make orders applying foreign law rather than the law of the jurisdiction?

Scotland 3.1 Are marital agreements (pre and post marriage) The UK does not participate in international instruments relating enforceable? Is the position the same if the agreement to choice of law in family law matters. Scottish courts will apply is a foreign agreement? Scottish family law regardless of parties’ nationalities. Prenuptial and postnuptial agreements have long been considered to be enforceable in Scotland. A court will only interfere with a 2.9 How is the matrimonial home treated on divorce? validly executed agreement if, at the time the agreement was entered into, the circumstances were such that it was not fair and reasonable. In most cases, the matrimonial home will fall within the definition There is no need for specific provision to be made for either spouse, of matrimonial property, and will be subject to such orders as are nor for the terms of the agreement to bear any reference to the orders justified by the principles outlined at question 2.3 above. a court would make upon separation. In some cases, the matrimonial home will not be matrimonial The opportunity to take legal advice, the extent of disclosure and property even if it has been the parties’ home (e.g. if it was gifted to the time afforded to the parties to consider the implications and or inherited by one of the parties alone). claims which are being discharged are all factors in determining the Where the matrimonial home is owned by one party, the other party enforceability of agreements. The position should be the same in will have automatic rights of occupation until divorce is granted or the case of a foreign agreement. a period of non-occupation has elapsed.

3.2 Can marital agreements cover a spouse’s financial 2.10 Is the concept of “trusts” recognised in your claims on divorce, e.g. for maintenance or jurisdiction? compensation, or are they limited to the election of the matrimonial property regime? Yes. Property held in trust is owned by the trustees, and will generally be excluded from the value of matrimonial property where Prenuptial and postnuptial agreements can cover a spouse’s financial one party is the or beneficiary. In extreme cases, arguments claims on divorce, and will be upheld provided the requirements at can be advanced that an interest in a trust is matrimonial property question 3.1 are met. However, such agreements are more commonly and/or is available as a resource. Transfers into trust can be set aside used to protect specific assets, and anything deriving from those assets, where they have been made for the purpose of defeating the other rather than covering all financial claims on divorce. party’s claim. A Minute of Agreement executed after separation will usually dismiss all remaining financial claims arising from marriage, separation, 2.11 Can financial claims be made following a foreign divorce, death or otherwise. divorce in your jurisdiction? If so, what are the grounds? 3.3 What are the procedural requirements for a marital agreement to be enforceable on divorce? There are limited grounds under which an application can be made to a Scottish court for financial provision following a foreign divorce. Please see question 3.1. Scottish courts must apply Scottish law and will seek to place the parties in the financial position they would have been in had the divorce proceeded in Scotland. 4 Cohabitation and the Unmarried Family

2.12 What methods of dispute resolution are available to 4.1 Do cohabitees, which do not have children, have resolve financial settlement on divorce? E.g. court, financial claims if the couple separate? What are the mediation, arbitration? grounds to make a financial claim?

Most financial settlements are reached by way of negotiation The Family Law (Scotland) Act 2006 (“2006 Act”) gives rights to between solicitors instructed by each party (or by the parties unmarried couples to bring claims against each other within one year themselves). Court proceedings are generally raised as a last resort, of separation. Compensatory payments can be sought from a former and other methods of dispute resolution are as follows: partner for contributions made during the relationship, whether ■ Mediation facilitates discussions with the help of an financial or otherwise. The applicant must show that they have independent expert. Matters discussed during mediation are suffered economic disadvantage in the interests of the other party confidential and parties may seek their own legal advice. or of a child of the relationship, or that the other party has derived ■ Collaborative law involves a series of meetings with separate economic advantage from contributions made by the applicant. lawyers retained by each party. Parties agree at the outset that

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4.2 What financial orders can a cohabitee obtain? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their The court may award a capital sum, payment in respect of the children? For example, can a child seek maintenance during university? economic burden of caring for a child, or such interim order as it sees fit. Parents have a statutory obligation to provide reasonable financial Cohabitants may also make financial claims within six months of support to their children up until the age of 18, or until the age of 25 their cohabitant’s death where the deceased died intestate. provided they are undergoing education or training. The CMS regulates payment of child maintenance until a child

4.3 Is there a formal partnership status for cohabitants reaches the age of 16, or until the age of 20 if the child is enrolled in Scotland (for example, civil partnerships, PACS)? full-time non-advanced education. When a child reaches university, he or she can bring a claim against one or both parents until they Civil partnerships are available to same-sex cohabitants and reach the age of 25. are likely to soon be available to heterosexual couples. A civil partnership confers upon parties the same rights and responsibilities as marriage. 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 Under the 1985 Act, the economic burden of caring for a child of other formal relationships in your jurisdiction? the marriage under the age of 16, or a child who has been accepted as a child of the marriage, should be shared fairly between parties Same-sex couples are entitled to marry and enter civil partnerships. after divorce. Under the 2006 Act, an application can be made by an unmarried 5 Child Maintenance parent for a capital payment in respect of the economic burden of caring for a child under the age of 16 following separation.

5.1 What financial claims are available to parents on 5.5 Can a child make a financial claim directly against behalf of children within or outside of marriage? their parents?

Financial claims available to parents on behalf of children are the Yes, provided they have an understanding of what it means to do so. same whether or not they are married. Children are presumed to have sufficient age and maturity to have Where both parents and children are resident in the UK, child such understanding from the age of 12. maintenance will be payable to the parent who has primary care of the children by the other parent. Where the care of children is shared equally, no child maintenance will be due. While claims may 6 Children – Parental Responsibility and be brought by a child over 12, in practice they tend to be brought Custody by a parent. In addition to the duty of child support, one parent may bring claims 6.1 Explain what rights of custody both parents have against the other for payment of school fees. The courts may make in your jurisdiction whether (a) married, or (b) orders against one parent to make payment to the other parent or to unmarried? a third party for the support of a child. Mothers have automatic parental responsibilities and rights (PRRs), 5.2 How is child maintenance calculated and is it regardless of their marital status. Married fathers have automatic administered by the court or an agency? PRRs. An unmarried father will have PRRs if he is named on the child’s birth certificate and the child was born after th4 May 2006. Where all parties are within the UK, child maintenance is Unmarried fathers of children born before that date must either enter administered by the Child Maintenance Service (CMS). A statutory into an agreement with the child’s mother or apply to the court for formula determines the level of maintenance due in the absence recognition of their rights. of agreement, based largely on the paying parent’s gross weekly Under the Children (Scotland) Act 1995 (“1995 Act”), PRRs include income. Deductions are made to take account of the nights spent the responsibility to safeguard and promote the child’s health, by the child with the paying parent. The CMS has broad powers to development and welfare, to provide direction and guidance, to investigate the payer’s income. maintain personal relations and regular direct contact and to act The court can award additional child maintenance over and above as the child’s representative. A person with PRRs has the right to the amount determined by the CMS, if the payer’s gross income have the child living with him or otherwise to regulate the child’s exceeds a maximum threshold (currently £3,000 per week). residence, to control the child’s upbringing and to make/be consulted Where the case falls outside the scope of the CMS (for example, in major decisions. because one party is resident abroad), jurisdiction remains with the courts. The courts will make awards based on needs, resources and 6.2 At what age are children considered adults by the all relevant circumstances. court?

A child is defined as a person under the age of 18, but most PRRs only apply to a child who is under the age of 16 (except the responsibility to provide guidance).

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meet with the child (depending on their age) and other relevant 6.3 What is the duration of children orders (up to the age parties and may make recommendations as to the orders the court of 16 or 18 or otherwise)? should make. The ultimate decision-making power rests with the judge, who does not ordinarily meet with the child. Most orders cease to apply when the child reaches the age of 16.

6.10 Is there separate representation for children in your 6.4 What orders can the court make in relation to jurisdiction? children? Does the court automatically make orders in relation to child arrangements in the event of divorce? Children do not, as a matter of course, have separate representation in proceedings relating to their care. Where neither parent can Scotland The court can make any order it sees fit in relation to the care of a adequately represent the views of a child, a curator may be appointed child, including orders regulating a child’s residence, determining to conduct litigation on their behalf. contact, and orders granting or depriving a person of PRRs. Specific A child may instruct their own solicitor directly, and will be issue orders can regulate all aspects of a child’s life, including presumed to be of sufficient age and maturity to do so from the age schooling, medical treatment and religion. of 12. The court will not automatically make orders in relation to children in the event of divorce, but must be satisfied with the care arrangements before granting divorce. 6.11 What methods of dispute resolution are available to resolve disputes relating to children?

6.5 What factors does the court consider when making The same methods of dispute resolution are available as those orders in relation to children? outlined at question 2.12 above. No matter what is agreed between parties, the court will retain jurisdiction to make such orders in The welfare of the child is the court’s paramount consideration. No relation to children as it sees fit. order shall be made unless it would be better for the child that an order is made than not at all. The court will have regard to the child’s views, subject to their age and maturity. 7 Children – International Aspects

6.6 Without court orders, what can parents do 7.1 Can the custodial parent move to another state/ unilaterally? For example, can they take a child country without the other parent’s consent? abroad? A child who is habitually resident in Scotland may not be removed A person with PRRs can make most decisions unilaterally, subject from the UK by one parent without the consent of the other, provided to the duty to consult the other parent and the child. An order can be that both parents have, and/or are exercising, rights of residence or sought from the court preventing a person with PRRs from taking a contact over the child. specific action, if required. A parent with PRRs may not remove a child from the UK without 7.2 If the court is making a decision on relocation of a the consent of the other parent or a court order allowing the child child abroad, what factors are taken into account? to be removed.

The welfare and best interests of the child will be the paramount 6.7 Is there a presumption of an equal division of time consideration. The court will consider the nature and motive between separating or divorcing parents? behind the proposed move, the extent to which it will affect the child’s relationship with both parents and their wider family, the There are no presumptions in relation to the care of a child. All child’s views (if appropriate) and the options for schooling and cases are decided according to what the court considers to be in the accommodation, and all other relevant matters. It is for the parent child’s best interests. Recent years have seen a shift towards shared- who wishes to relocate to prove to the court that the move would be care arrangements with many children spending broadly equal time in the child’s best interests. with both parents. Further change is needed before equal shared parenting becomes the norm. 7.3 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on It is difficult in practice to obtain permission from a court, separation or divorce? particularly where a move would have an adverse impact upon the child’s relationship with the other parent. Clear and compelling Yes, subject to the comments above regarding PRRs for unmarried evidence will be required to show that such a move is in the child’s fathers. best interests and that it would be better for the child to move than to maintain the current arrangements. 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge 7.4 How does your jurisdiction deal with abduction alone? If so, does the child meet the Judge? cases? For example, is your jurisdiction a party to the Hague Convention? The court often orders a welfare report to be prepared by an independent lawyer or other professional. The reporter will usually Abduction cases involving a child who is habitually resident in

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the EU (other than Denmark) are determined in accordance with Brussels II bis. The UK is also a signatory to the Hague Convention. 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? The Hague Convention and Brussels II bis both seek to ensure that children who are removed unlawfully from their country of habitual The recent case of Villiers ([2018] EWCA Civ 1120) highlights residence are returned to that country as quickly as possible. inconsistencies between the intra-UK rules of jurisdiction on Applications can be brought by anyone who was exercising maintenance and divorce. The priority afforded to the jurisdiction “custody rights” at the time of removal or retention. in which the parties last resided together as spouses in competing The Scottish Central Authority deals with applications for the return intra-UK divorce actions (see question 1.8 above and the 1973 Act), of children who are habitually resident in Scotland who have been does not apply to claims for maintenance, which are governed by wrongfully removed to, or retained in, another EU State. Parents the lis pendens regime in the Maintenance Regulation (EC) No Scotland seeking the return of a child from Scotland will be entitled to free 4/2009. In Villiers, the Court of Appeal determined that a claim for legal aid in order to raise court proceedings. maintenance could be brought before the English court despite the Where a child is removed to, or retained in, Scotland, from a country parties having last lived together in Scotland and despite Scottish which is neither a Hague signatory nor subject to Brussels II bis, proceedings for divorce having been raised prior to the English decisions will be fact-specific and based on the child’s welfare. action. Given that the Scottish proceedings did not specifically It is a criminal offence for a person connected with a child under 16 include a crave for maintenance, Scottish jurisdiction had not to remove the child from the UK without consent if there is a court been invoked for the purposes of the Maintenance Regulation and order in place dealing with custody or if there is an order prohibiting proceedings for maintenance in England could be brought. the child’s removal. The effect is that concurrent proceedings in different parts of the UK may be raised, generating additional costs, delays and confusion. The definition of maintenance itself gives rise to further ambiguity. 8 Overview The full implications of Brexit on family law are, at present, unknown. It is hoped that consideration will be given to the methods 8.1 In your view, what are the significant developments in of enforcement and recognition of rights and judgments issued by family law in your jurisdiction in the last two years? courts in the UK by the remaining Member States following the UK’s withdrawal from the EU. The Supreme Court has recently declared that the law as it stands, The provisions of the 2006 Act relating to unmarried couples are which affords only same-sex couples the right to enter into civil in need of reform, not least due to the lack of clear definitions and partnerships, is incompatible with the European Convention on interpretation, inflexible time limits and the limited range of awards Human Rights ([2018] UKSC 32). The law is expected to be which courts can make. amended to allow heterosexual couples to become civil partners. The abolition of fault-based grounds for divorce and dissolution of A recent Court of Session decision has seen an unprecedented civil partnerships would modernise the law. award arising from the breakdown of a cohabiting relationship, The Scottish government is considering options to reform the where one party reduced their working hours to bring up children 1995 Act, which will include measures to improve procedures for and contributed to a mortgage over the other party’s property (M v obtaining the views of children in court proceedings, reducing the S [2017] CSOH 151). possibility of influence. Further guidance would also be welcomed in assessing the welfare principle.

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Gillian Crandles Jennifer Macdonald Turcan Connell Turcan Connell Princes Exchange Princes Exchange 1 Earl Grey Street 1 Earl Grey Street Edinburgh, EH3 9EE Edinburgh, EH3 9EE Scotland Scotland

Tel: +44 131 228 8111 Tel: +44 131 228 8111 Email: [email protected] Email: jennifer.macdonald URL: www.turcanconnell.com @turcanconnell.com URL: www.turcanconnell.com Scotland Gillian is Head of Divorce and Family Law; one of Scotland’s leading Jennifer works alongside Gillian Crandles as a senior solicitor in the divorce lawyers and accredited as a specialist by The Law Society of Divorce and Family Law team, providing advice on the full range Scotland. According to Chambers UK 2017 Gillian “has a very big of family law issues including financial provision on divorce and reputation and it is well-deserved”. Dealing mainly with complex, high- separation, cohabitation and child-related matters. She is regularly net-worth cases, she has extensive experience and expertise in cases instructed to prepare and advise on cohabitation agreements and involving business valuations, partnership and farming cases, as well prenuptial and postnuptial agreements on behalf of individuals with as disputes involving significant claims by cohabitants. She hasa complex financial and business affairs. particular interest in cases with an international element, including Jennifer is dual-qualified as a solicitor in Scotland and in England and disputes regarding children and jurisdiction for financial claims. She is Wales. Her understanding of the law as it applies both jurisdictions dual-qualified in Scotland and in England and Wales, and is frequently means that she is well placed to advise individuals who have cross- instructed in cases with a cross-border element particularly in relation border connections. Jennifer has an interest in international family law to asset protection and prenuptial and postnuptial agreements. A issues, both in terms of jurisdictional matters and disputes relating to member of the Family Law Association, Resolution and IAFL, she children. has a keen interest in alternative dispute resolution, is a qualified collaborative lawyer, family mediator and arbitrator. Jennifer is based in Turcan Connell’s Edinburgh office, but also works from Glasgow and London as required.

Turcan Connell is one of the UK’s premier private client firms with offices in Edinburgh, Glasgow and London. It commands a unique position in UK professional services by providing clients with an integrated range of legal services alongside a complete range of tax services. The firm’s success is due to Turcan Connell’s continued focus on meeting the needs of individuals, families, charities, entrepreneurs and businesses. The team is widely recognised as the leading family law practice in Scotland for high-net-worth divorce cases. The team handles all aspects of separation, divorce, dissolution of civil partnerships, cohabitation and issues arising from relationship breakdown, whether of a financial nature or concerning care of children. Prenuptial and postnuptial agreements are a significant aspect of its work. With partner-level expertise in Scottish and English law, it acts in many cross-jurisdictional divorces and specialises in collaborative law and divorces involving business valuations and share schemes.

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Singapore

Chia Wong LLP Wong Kai Yun

There is no required period of living apart for grounds (a) and (b) 1 Divorce above. Parties may choose not to contest the proceedings regardless of the grounds relied upon above. 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, 1.3 In the case of an uncontested divorce, do the parties domicile, etc.? need to attend court?

In respect of non-Islamic marriages, Singapore’s courts have The court may dispense with the need for the parties to attend court if it jurisdiction for divorce proceedings, judicial separation or nullity is to proceed on an uncontested basis (r 81, Family Justice Rules; paras of marriage where one of the parties is either (a) domiciled in 18, 116, Family Justice Courts Practice Directions). Further, where Singapore at the start of proceedings, or (b) habitually resident in the parties have agreed from the outset (a) that the divorce proceedings Singapore for a period of three years immediately before the start of will proceed on an uncontested basis, and (b) on all ancillary matters, proceedings (s 93(1), Women’s Charter). they may apply for the divorce proceedings to be heard by the court In proceedings for nullity of marriage on the ground that a within 10 days after the date of setting down (the “uncontested marriage is void or voidable, the court can, even where neither of simplified hearing track”) (r 83,Family Justice Rules). The court may, the two requirements above are fulfilled, grant relief in cases where with the consent of all parties, make orders as per the terms agreed both parties reside in Singapore at the time that the proceedings without the parties’ attendance (r 670, Family Justice Rules). commence (s 93(2), Women’s Charter).

In addition, the courts only have jurisdiction for divorce proceedings 1.4 What is the procedure and timescale for a divorce? if the writ for divorce is filed at least three years from the date of marriage (s 94(1), Women’s Charter). The exceptions to this rule are Generally, the plaintiff files a writ for divorce and other where there are grounds of “exceptional hardship” suffered by the accompanying papers to initiate divorce proceedings. As mentioned plaintiff or “exceptional depravity” on the part of the defendant (s in question 1.3, if parties have already agreed on the divorce and the 94(2), Women’s Charter). ancillary matters, then the divorce can proceed on the uncontested simplified hearing track, which will be heard within 10 days from 1.2 What are the grounds for a divorce? For example, is the filing of the writ for divorce and the necessary papers. there a required period of separation, can the parties If there is no agreement reached before the plaintiff files a writ have an uncontested divorce? for divorce, then the defendant will need to file a memorandum of appearance within eight days, indicating whether he/she wishes to A party may only file for divorce if there is an “irretrievable contest the divorce (r 54, Family Justice Rules). If the divorce is breakdown” in the marriage (s 95(1), Women’s Charter). This is contested, parties will have to file various pleadings, followed by proved by one of the following five facts (s 95(3),Women’s Charter): Affidavits of Evidence-in-Chief, respond to requests for discovery of (a) the defendant has committed adultery and the plaintiff finds it documents and/or interrogatories, and proceed to a trial with cross- intolerable to live with the defendant; examination of witnesses for the court to make a determination (b) the defendant has behaved in such a way that the plaintiff on whether to grant an Interim Judgment dissolving the marriage. cannot reasonably be expected to live with the defendant; There would also be case conferences (r 23, Family Justice Rules), (c) the defendant has deserted the plaintiff for a continuous counselling and/or mediation (r 174, Family Justice Rules) involved period of at least two years immediately preceding the filing in the process. A contested divorce typically takes about nine of the writ; months to a year to proceed to trial. Of course, the divorce could be (d) the parties have lived apart for a continuous period of at least settled on an uncontested basis at any point in time if parties agree. three years immediately preceding the filing of the writ and the defendant consents to a judgment being granted; or 1.5 Can a divorce be finalised without resolving other (e) the parties have lived apart for a continuous period of at least associated matters? For example, children and four years immediately preceding the filing of the writ. finances.

After the granting of an Interim Judgment, a divorce may not be

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finalised unless satisfactory arrangements have been made for the the maintenance out of the income of the property (ss 81, 115, welfare of the children (s 123(1), Women’s Charter). The court Women’s Charter). has discretion to dispense with this rule if it is desirable to finalise the divorce or it has obtained satisfactory undertaking(s) from the 2.2 Do matrimonial regimes exist and do they need to be party(ies) to bring the issue before the courts within a specified time addressed by the court on divorce? Is there a default (s 123(2), Women’s Charter). regime? In effect, a divorce may only be finalised after the hearing of all applications for ancillary relief, such as the division of matrimonial There is no equivalent concept of matrimonial regimes which parties assets, has been concluded at first instance unless leave of court is could elect or which could operate by default, whether of separate or granted otherwise (r 96(3), Family Justice Rules). community property regimes, in Singapore. Singapore

1.6 Are foreign divorces recognised in your jurisdiction? 2.3 How does the court decide what orders to make? What factors are taken into account? The recognition of foreign matrimonial decrees is governed entirely by common law principles. A foreign matrimonial decree will be To determine the appropriate order to make, the court takes recognised by the Singapore courts on the grounds of international into account all the circumstances of the case, including certain comity if it originates from a court of competent jurisdiction and statutorily required factors. is not otherwise impeached for fraud, breach of natural justice or With respect to the division of matrimonial assets, the court takes contravention of the fundamental public policy of the forum (Ng into account the factors in s 112(2) of the Women’s Charter, such Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111; as the contributions made by each party in money, property or Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485; Yap Chai work towards acquiring, improving or maintaining the matrimonial Ling and another v Hou Wa Yi [2016] 4 SLR 581). property, and to the welfare of the family (ss 112(2), Women’s Charter), and the factors listed in s 114(1) of the Women’s Charter. 1.7 Does your jurisdiction allow separation or nullity In practice, we loosely categorise all contributions as either proceedings? “direct financial contributions” or “indirect financial/non-financial contributions” towards the acquisition of the matrimonial assets. Yes, please see question 1.1 above. The court may adopt a structured approach by first ascribing a ratio representing the parties’ direct contributions relative to each other, followed by ascribing a ratio representing the parties’ indirect 1.8 Can divorce proceedings be stayed if there are contributions (non-financial or indirect financial contributions) proceedings in another country? relative to each other, and finally averaging both the direct and indirect contributions (ANJ v ANK [2015] SGCA 34). Yes, divorce proceedings in Singapore may be stayed in favour With respect to spousal and child maintenance, the courts take into of a foreign court on the ground of forum non conveniens unless account the factors listed in s 114(1), such as the income, earning substantive justice will be denied by the stay of proceedings (Mala capacity, property and other financial resources which each of the Shukla v Jayant Amiritanand Shukla (Danialle An, co-respondent) parties has or is likely to have in the foreseeable future, the parties’ [2002] 3 SLR 295). This will be assessed by the courts based on the standard of living and their ages (ss 114(1), 127(2), Women’s rules in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC Charter). 460 (VH v VI [2008] 1 SLR(R) 742). Different policy considerations underlie spousal and child maintenance. It should be noted that the courts have decided that 2 Finances on Divorce even nominal maintenance (i.e. $1 maintenance) for a former wife is not to be awarded automatically or as a matter of course (ATE v ATD [2016] SGCA 2). 2.1 What financial orders can the court make on divorce?

The court is empowered, when granting a judgment of divorce, to 2.4 Is the position different between capital and order the division or sale of matrimonial assets in such proportion maintenance orders? as is just and equitable (s 112(1), Women’s Charter). The court is also empowered to make orders for maintenance for the wife, The Women’s Charter requires the court to take into account all the incapacitated husband and children of the marriage (ss 113, 127, circumstances of the case whether in making orders for division Women’s Charter). of matrimonial assets or for maintenance orders, although the principles and the specific factors between the two differ. Broadly With respect to the division of matrimonial assets, the court may speaking, the division of matrimonial assets is aimed to be “just and make any order necessary or expedient to effect the division, which equitable” (s 112(1), Women’s Charter) in light of parties’ respective includes making an order for sale, vesting any asset owned jointly contributions towards the marriage, while maintenance is aimed by the parties in both the parties in common in such shares as the at preserving the wife’s standard of living during the marriage (s court deems just, vesting any asset or any part thereof in either party, 114(2), Women’s Charter). ordering for any asset to be held in trust on such terms as may be specified in the order, and ordering a payment of sum of money by one party to the other party (ss 112(3), 112(5), Women’s Charter). 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? With respect to maintenance orders, in addition to the typical orders of payment of a lump sum or periodical payments, the court may provide for an attachment of earnings order, or require security for Yes, the parties’ agreement would be incorporated by way of a the maintenance by vesting property in trustees upon trust to pay consent order which is filed with, and subsequently granted by, the

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court. If the proceedings are uncontested, the court can waive the revocable trust in favour of a third party, the court would exercise its requirement for attendance. Please see question 1.3 above. discretion as to whether the trust is a matrimonial asset. The court has power to set aside the trust on application under s 132 of the Women’s Charter (NI v NJ [2006] SGHC 198; AQT v AQU [2011] 2.6 How long can spousal maintenance orders last and are such orders commonplace? SGHC 138). In any case, the court has the discretion to treat the value of the If the maintenance is for a lump sum, it is intended to extinguish assets of the trust or the value of the assets expended to set up the all further and future claims. Otherwise, if the order for periodic trust as a resource to the settlor/beneficiary, whether for division of payments is not expressed to be for any shorter period, the order matrimonial assets or in determining spousal maintenance (Marie would last until either the death of the paying spouse (if the Eileen Guin nee Fernandez v Arun Guin [1994] SGHC 157). maintenance is unsecured), or upon the payee spouse’s remarriage Singapore or death (s 117, Women’s Charter). 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? 2.7 Is the concept of matrimonial property recognised in your jurisdiction? Yes, financial claims following a foreign divorce may be made in Yes, all “matrimonial assets” are subject to division upon a divorce Singapore subject to the court’s jurisdictional requirements and (s 112(1), Women’s Charter). “Matrimonial assets” are defined as leave being granted, by way of Chapter 4A, Part X of the Women’s (s 112(10), Women’s Charter): Charter (Tan Poh Leng v Choo Lee Mei [2014] 4 SLR 462). Further, in respect of foreign maintenance orders, a person may enforce such ■ all assets acquired during the marriage by one or both parties maintenance orders under either the Maintenance Orders (Facilities to the marriage; or for Enforcement Act) or the Maintenance Orders (Reciprocal ■ all assets acquired before the marriage by one or both parties Enforcement Act), as applicable to the reciprocating country. to the marriage and: ■ ordinarily used or enjoyed by both parties or their children for shelter, transportation, household, education, 2.12 What methods of dispute resolution are available to recreational, social and aesthetic purposes; or resolve financial settlement on divorce? E.g. court, mediation, arbitration? ■ substantially improved during marriage by one or both parties to the marriage. The family justice system has undergone substantial reform, with Assets that are excluded are those (not being a matrimonial home) the unified Family Justice Courts, comprising the High Court acquired by gift or inheritance by one party at any time and that have (Family Division), the Family Court and the Youth Court, being not been substantially improved during the marriage by the other established on 1 October 2014; and a Judge-led approach coming party or both parties. into operation on 1 January 2015. With effect from 1 October 2014, for divorce proceedings involving 2.8 Do the courts treat foreign nationals differently on children (below 21 years old), it is mandatory for the court to order divorce, if so, what are the rules on applicable law? the parties to attend mediation, counselling or both (s 50(3A), Can the court make orders applying foreign law rather than the law of the jurisdiction? Women’s Charter), but the court is empowered to refer the parties to attend mediation, counselling or other family support programmes in other instances (s 50(2), Women’s Charter). Such mediation Apart from the court’s jurisdictional requirements for granting is conducted by specially appointed judge-mediators or legal a decree for divorce, there is no explicit rule stating that foreign professionals, at the Child Focused Resolution Centre or Family nationals are to be treated differently on divorce (see question 1.1) Resolution Chambers. With effect from 1 October 2016, the courts and the Women’s Charter applies even in cases of divorce between no longer mediate in cases where assets are above a gross value of two foreign nationals in Singapore. $3 million and there are no contested child issues, but may refer such cases to private mediation. 2.9 How is the matrimonial home treated on divorce? Private mediation is available through the Singapore Mediation Centre, as well as a number of organisations and individuals in A matrimonial home would be considered a “matrimonial asset” Singapore. The Singapore Mediation Centre also has an accredited under the Women’s Charter, and be placed in the pool of matrimonial Collaborative Family Practice panel. Whilst family arbitration is assets for division under Part X of the Women’s Charter. However, not expressly disallowed under the Arbitration Act, there are no depending on the circumstances, the home need not inevitably be known instances of family arbitration in Singapore. sold and the proceeds divided. One party may retain title of the home whilst reimbursing the other party for that party’s share of the matrimonial home or have the right to occupy the home to the 3 Marital Agreements exclusion of the other party (s 112(5)(f), Women’s Charter).

3.1 Are marital agreements (pre and post marriage) 2.10 Is the concept of “trusts” recognised in your enforceable? Is the position the same if the agreement jurisdiction? is a foreign agreement?

Yes, trusts are recognised in Singapore. Generally, a fixed/irrevocable Marital (pre- and post-nuptial) agreements are not in and of trust settled in favour of a third party will be left alone unless it was themselves enforceable whether as an operation of the common created to deprive the spouse of his/her claim to maintenance or law or by statute (TQ v TR [2009] 2 SLR(R) 961 (CA)). However, asset division (CH v CI [2004] SGDC 131). As for a discretionary/ subject to their subject matter and there being no vitiating factors

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affecting their validity, the courts may take such agreements into Legislative account when exercising their judicial discretion. It should also Level of Judicial Scrutiny Provision of Subject Matter be noted that the courts have made a distinction between pre- and or Cognisance Women’s Charter post-nuptial agreements in that all things being equal, post-nuptial or Case Law agreements would be given more weight as they are made after the The above on a wife’s maintenance would parties have undertaken responsibilities as and between each other similarly apply. However, (TQ v TR). the courts would be vigilant and reluctant to TQ v TR; AUA v Foreign vs Domestic Agreements Child maintenance enforce any agreement that ATZ. Where a marital agreement is (a) a valid foreign law-governed is not in the best interests agreement, (b) not contrary to Singapore’s public policy, and (c) of the child. The courts’ Singapore entered into between foreign nationals, the courts would accord paramount consideration is the welfare of the child. its terms with “significant (even critical) weight” (TQ v TR). In Agreements must be relation to other agreements which possess a domestic element, e.g. taken into account by the involving Singapore nationals, the weight to be accorded to such courts in their exercise of agreements would depend on the facts of the case (TQ v TR). discretion when dividing matrimonial assets if such Subject Matter of Agreements s 112(2)(e); TQ agreements were made v TR. Legislative in “contemplation of Level of Judicial Scrutiny Provision of divorce”. The exact weight Subject Matter or Cognisance Women’s Charter to be allocated would be or Case Law fact-specific. This includes Division of both pre-nuptial and post- Agreements are prima matrimonial assets nuptial agreements. facie unenforceable as TQ v TR. there is a presumption Significant, even that it is in the interests conclusive, weight can be of the parties and not the placed on an agreement on the division of matrimonial child. The onus is on the AUA v ATZ. assets if the parties freely Child custody party asserting otherwise and voluntarily entered into (and care and to prove it to the courts. the agreement with full control) The courts’ paramount consideration is the welfare knowledge of the relevant of the child. circumstances and matters to be considered. The courts have power to s 129, Women’s vary the terms of pre- and Charter. post-nuptial agreements Some examples of “circumstances” in which the court may not relating to custody. uphold a nuptial agreement, notwithstanding its formal validity, are Post-nuptial agreements: set out below: Such agreements would (a) there was an element of trickery or coercion used to get one be subject to judicial party to sign the pre-nuptial agreement (Chia Hock Hua v scrutiny, in particular Chong Choo Je [1994] 3 SLR(R) 159); on the adequacy of the maintenance, and the (b) where the parties failed to give full and frank disclosure, such courts have power to vary TQ v TR; ss 119 as when the husband knew or ought to have known that he the terms of maintenance and 132. would be receiving substantive stock options at the time the if there has been a parties entered into the pre-nuptial agreement which he did “material change in the not disclose (AFS v AFU [2011] 3 SLR 275); circumstances”. (c) the pre-nuptial agreement is manifestly in one party’s favour Pre-nuptial agreements: TQ v TR. and to the detriment of the other (TQ v TR); and Common law would apply, and such agreements would (d) where there was variation by subsequent conduct (TQ v TR). be subject to the court’s scrutiny, in particular on the adequacy of the 3.2 Can marital agreements cover a spouse’s financial maintenance. claims on divorce, e.g. for maintenance or Wife maintenance An agreement of a sum compensation, or are they limited to the election of in settlement of all future s 117. the matrimonial property regime? claims of maintenance must be approved by the Marital agreements can cover a spouse’s financial claims, but the court before it is effective. enforcement of the terms is ultimately subject to judicial discretion Such agreements are s 69(4); AUA v ATZ (see question 3.1 above). considered as a part of “all [2016] SGCA 41. the circumstances of the case”. 3.3 What are the procedural requirements for a marital However, if the provision AUA v ATZ (in the agreement to be enforceable on divorce? is just and fair and does not context of child fall short of what is needed maintenance but There are no explicit procedural requirements, but the court has and expected under general would apply a law, there is nothing fortiori to wife suggested that greater weight would be given if both parties were preventing the court from maintenance). represented and advised fully of the circumstances when they enter endorsing the substance of the terms of the agreement. into a marital agreement (in the context of a post-divorce agreement: Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284; and AUA v ATZ [2016] SGCA 41).

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(b) the income, earning capacity (if any), property and financial 4 Cohabitation and the Unmarried Family resources of the parents; (c) any disability of the child; 4.1 Do cohabitees, which do not have children, have (d) the age of the parents and duration of the parents’ marriage; and financial claims if the couple separate? What are the (e) the standard of living enjoyed by the child before the parent grounds to make a financial claim? ceased providing reasonable maintenance for the child, including how the parties expected him to be, educated or There is no legislation that deals with a cohabitee’s financial claims trained. upon separation. The ordinary principles of general property law The authorities are presently exploring the viability of establishing a would apply (Chia Kum Fatt Rolfston v Lim Lay Choo [1993] 2 formula-based child maintenance table to facilitate the calculation of SLR(R) 793). child maintenance. Singapore Parent of Child Accepted by a Party as a Member of the Family 4.2 What financial orders can a cohabitee obtain? During the Parties’ Marriage A child who has been accepted by a person to be a member of his Please see question 4.1 above. family shall be maintained by that person whilst the child is under 21 years of age so far as the child’s parents fail to do so (s 70(1), 4.3 Is there a formal partnership status for cohabitants Women’s Charter). A maintenance order may also be ordered for the (for example, civil partnerships, PACS)? benefit of a child beyond the age of 21 years if any of the factors in s 69(5) discussed above apply (s 70(5), Women’s Charter). Any sums No. Singapore does not have a formal partnership status for expended by that person shall be recoverable as a debt from the cohabitants. child’s father or mother (s 70(3), Women’s Charter). The obligation ceases if the child is taken away by his father or mother (s 70(2), Women’s Charter). The factors in s 69(4) discussed above also 4.4 Are same-sex couples permitted to marry or enter apply (s 70(5), Women’s Charter). other formal relationships in your jurisdiction? There is no agency administering maintenance claims in Singapore, and maintenance orders have to be enforced through court No. Same-sex marriages, whether solemnised in Singapore or proceedings. elsewhere, are void under the Women’s Charter (s 12(1), Women’s Charter). 5.3 For how long is a parent required to pay child maintenance or provide financial support for their 5 Child Maintenance children? For example, can a child seek maintenance during university?

5.1 What financial claims are available to parents on A maintenance order may also be ordered for the benefit of a child behalf of children within or outside of marriage? above the age of 21 years in certain circumstances, typically until the completion of university education. It has been held that if Parents may seek maintenance for their children within and outside a child is genuinely pursuing a course of study in order to better of the marriage. See question 5.2 below. prepare himself for the working world, as long as it is reasonable for the child to pursue that course and the parents can afford it, the court 5.2 How is child maintenance calculated and is it may order the parents to maintain the child either fully or partially administered by the court or an agency? while still studying (Wong Ser Wan v Ng Cheong Ling [2006] 1 SLR(R) 416). Please see question 5.2 above. The court can order a parent to pay maintenance for the benefit of a child of the marriage who is under the age of 21. 5.4 Can capital or property orders be made to or for the Biological and Adoptive Parents benefit of a child? Both parents are under a duty to maintain or contribute to the maintenance of their biological or adoptive child (s 68, Women’s The court may, if it considers it just, order the person liable to pay Charter; s 7(1) of the Adoption of Children Act). The court may the maintenance to secure the whole or part of it by vesting any order a parent to make a monthly allowance or a lump sum for the property belonging to the person in trustees upon trust to pay the maintenance of his child up until he attains 21 years of age (s 69(2), maintenance or a part of it out of the income from the property for Women’s Charter). The court may also do so during matrimonial the settlor (s 69(5), Women’s Charter; s 70(5), Women’s Charter). proceedings (s 127, Women’s Charter). A maintenance order may also be ordered for the benefit of a child 5.5 Can a child make a financial claim directly against beyond the age of 21 years if the child: (a) has a physical or mental their parents? disability; (b) is or will be serving full-time national service; (c) is or will be studying or undergoing training for a trade, profession Yes, he may do so against his parents or the person who has accepted or vocation whether or not under gainful employment; or (d) has him as a member of his family if he has attained 21 years of age (ss special circumstances justifying the making of the order (s 69(5), 69(3)(b), 70(4)(b), Women’s Charter). If the child is a minor, his Women’s Charter). siblings who have attained 21 years of age (ss 69(3)(c), 70(4)(c), When ordering child maintenance, the court must have regard to all Women’s Charter) or his guardian or a person having actual custody the circumstances of the case, including (s 69(4), Women’s Charter): of him (ss 69(3)(a), 70(4)(a), Women’s Charter) may do so instead. (a) the financial needs of the child;

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Lastly, the court usually grants “access” to the parent who does not 6 Children – Parental Responsibility and have care and control of the child (AQL v AQM) to have regular Custody contact with the child.

6.1 Explain what rights of custody both parents have 6.5 What factors does the court consider when making in your jurisdiction whether (a) married, or (b) orders in relation to children? unmarried? Please see question 6.4 above. There is no difference between married and unmarried parents in respect of their rights of custody.

Singapore 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child 6.2 At what age are children considered adults by the abroad? court? Where a custody, or care and control order is in force, unless the trip The Women’s Charter defines a “minor” as a person who is is for a period of less than one month, the child may not be taken out below the age of 21 years, and subject to child custody orders. of Singapore without the other parent’s written consent or with the However, a child who has attained 18 years of age but is below leave of the court (ss 126 (4), (5), Women’s Charter). 21 years old would not be considered to be a minor in relation to any legal proceeding or action in which, by virtue of s 36 of the 6.7 Is there a presumption of an equal division of time Civil Law Act, he may, in his own name and without a litigation between separating or divorcing parents? representative, bring, defend, conduct or intervene in as if he were of full age (r 3(4), Family Justice Rules). There is no presumption of equal division of time. Ultimately, the court looks at the best interests of the child to determine the optimal 6.3 What is the duration of children orders (up to the age arrangement. Please see question 6.4 above. of 16 or 18 or otherwise)?

6.8 Are unmarried parents treated in the same way as Child custody orders last until the child is 21 years of age. married parents when the court makes orders on separation or divorce? 6.4 What orders can the court make in relation to children? Does the court automatically make orders in Whilst the procedure for applying for custody, care and control relation to child arrangements in the event of divorce? is different under the Guardianship of Infants Act for unmarried parents and under the Women’s Charter for married parents, the The court has to make orders in respect of “custody”, “care and courts treat unmarried parents and married parents in the same way. control” and “access” under the Women’s Charter in the event of divorce. 6.9 Is a welfare report prepared by an independent The court has the power to place a child in the custody of either professional or is the decision taken by the Judge parent or (in exceptional circumstances) a relative (ss 125, Women’s alone? If so, does the child meet the Judge? Charter). The person given “custody” has decision-making control and responsibility over the upbringing, education, health and The decision is ultimately taken by the Judge. However, the Judge religion of the child (ss 126(1), (2), Women’s Charter). The Court of may (via an application by a party or otherwise) order the production Appeal has emphasised that parenthood is a lifelong responsibility of reports such as a Social Welfare Report, Custody Evaluation and endorsed the idea of joint parental responsibility, even where Report, Access Evaluation Report, Special Issues Report, etc. by there is acrimony between the parents (CX v CY [2005] 3 SLR 690), professionals from the appropriate disciplines within the Ministry by way of joint or no custody orders. Courts may order sole custody of Social and Family Development and various other government in exceptional circumstances, e.g. where one parent physically, agencies (s 28, Family Justice Act; rr 35, 36, Family Justice Rules; sexually or emotionally abuses the child. AZB v AZC [2016] SGHCF 1). The Judge may still interview a child The parent with “care and control” has the right to take care of the after he/she receives the reports or expert evidence as these avenues child and to make the day-to-day decisions concerning the child’s are not mutually exclusive (AZB v AZC). upbringing and welfare (CX v CY ). This right naturally belongs to the parent with whom the child lives (AQL v AQM [2012] 1 SLR 6.10 Is there separate representation for children in your 840). Orders for shared care and control are rarer in Singapore on jurisdiction? account of various reasons, e.g. due to the logistical difficulties, that it may be disruptive and the parents have markedly different Yes, the court may (via an application by a party or otherwise), parenting styles (AQL v AQM). In deciding which parent should be if it is in the best interests of the child to do so, appoint a child given care and control of the children, the following are some trends representative for a child for any action involving the child or the which have emerged from local case law: custody or welfare of the child (r 30, Family Justice Rules). ■ A young child requires a mother’s daily care (Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430 read with CX v CY). 6.11 What methods of dispute resolution are available to ■ There is a preference towards preserving the status quo and resolve disputes relating to children? continuity of living conditions (Wong Phila Mae v Shaw Harold [1991] 1 SLR(R) 680). Please see question 2.12 above. ■ Siblings should not be separated (Kim Chun Ahe v Ng Siew Kee [2002] SGDC 276).

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In determining the child’s country of habitual residence, the court 7 Children – International Aspects will consider whether the child was habitually resident in that place immediately before the date on which the allegedly wrongful 7.1 Can the custodial parent move to another state/ removal or retention of the child is said to have taken place (TUC country without the other parent’s consent? v TUD [2017] SGHCF 12). The country of habitual residence of the child is determined by considering two things: the degree to The custodial parent cannot take and move a child who is subject to which the child is settled or integrated in that country, and the joint a custody order out of Singapore, except with the written consent of intention of the parents as to whether the child is to reside in that the other parent or the leave of court (s 126(3), Women’s Charter). country (TUC v TUD). The weight to be placed on each concern is dependent on the circumstances of each case (TUC v TUD).

Regarding the exception of consent under Art 13(a) of the Hague Singapore 7.2 If the court is making a decision on relocation of a child abroad, what factors are taken into account? Convention, the parent seeking to invoke the exception must show on a balance of probabilities that the left-behind parent has unequivocally consented to the removal or retention of the child. In considering relocation applications, the welfare of the child is The evidence provided must be clear and compelling (TUC v TUD). paramount and this principle overrides any other consideration. (s 3, Guardianship of Infants Act; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] SGHCF 1). The court balances the following factors: 8 Overview ■ the effects on the child if the (reasonable) wishes of the parent with primary care wishing to take the child abroad are interfered with – in particular whether there would be 8.1 In your view, what are the significant developments in transference of negativity from the parent (whether due to family law in your jurisdiction in the last two years? emotional or physical instability) onto the child; and ■ the impact on the child, on account of the child’s loss of Approach to Division of Matrimonial Assets relationship with the parent left behind. The law in the approach to the division of matrimonial assets has been evolving since the structured approach was laid down in ANJ 7.3 In practice, how rare is it for the custodial parent to be v ANK (see question 2.3). As the law now stands, the structured allowed to relocate internationally/interstate? approach does not apply to single-income marriages, as this unduly favours the working spouse at the expense of the non-working Until recent years, such applications have generally been allowed so spouse. Where it is a case of a long single-income marriage, the long as the custodial parent’s desire to relocate is not unreasonable court will tend towards an equal division of matrimonial assets (TNL or founded in bad faith. The Court of Appeal and High Court have v TNK and another appeal and another matter [2017] SCGA 15). since criticised this approach; the custodial parent’s reasonable Third Party Rights in the Division of Matrimonial Assets wishes is no longer a determinative factor, but is only one of the It has recently been clarified that the Singapore Family Justice factors among other composite factors, particularly, the loss of Courts do not have the jurisdiction or power to hear or determine relationship with the left-behind parent depending on the strength third party claims on assets involved in divorce proceedings. of the existing bond between that parent and the child (BNT v BNS Third parties or spouses must start a separate civil suit to finally [2014] 4 SLR 859; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] determine the legal or beneficial interests in the disputed asset. In SGHCF 1). the meantime, proceedings to divide the matrimonial assets must be stayed (UDA v UDB [2018] SGCA 20). 7.4 How does your jurisdiction deal with abduction Division of Pre-Marital Assets cases? For example, is your jurisdiction a party to the Hague Convention? The law has been clarified for cases where parties have cohabitated before marriage and acquired assets before marriage. For such assets acquired before marriage, the part of the acquisition that coincides In respect of international abduction cases, the International Child with the period of the marriage could be subject to division (UJF v Abduction Act came into force on 1 March 2011. It was enacted to UJG [2018] SGHCF 1). For matrimonial homes acquired before fulfil Singapore’s obligations under the Hague Convention on Civil marriage, however, the whole value would be subject to division Aspects of International Child Abduction (the “Hague Convention”) (UJF v UJG). which she acceded to on 28 December 2010. The Ministry of Social and Family Development is the designated Central Authority to implement Singapore’s obligations under the Convention. There 8.2 What are some of the areas of family law which you are few reported decisions under the Convention. think should be looked into in your jurisdiction? Singapore subscribes to the Convention policy of securing the prompt return of a child who had been removed in breach of custody Enforcement of Maintenance Orders rights effectively exercised under the law of the country of his The enforcement of maintenance orders has been problematic. The habitual residence, subject to judicial discretion when the exceptions last systemic attempt to redress this was through the Women’s Charter in Art 13 of the Hague Convention have been satisfied (BDU v (Amendment) Act 2011 where, among other things, “Attachment of BDT [2014] SGCA 12). The Singapore courts will not examine Earnings Orders” to compel the ex-spouse’s employer to pay the the substantive merits of custodial disputes, with the presumption maintenance from the ex-spouse’s monthly wage (ss 81A, Women’s that the country of habitual residence would decide such matters Charter) was introduced. However, it still remains a challenge to in the child’s paramount interests (BDU v BDT). Undertakings are enforce maintenance orders in Singapore; over 2,000 enforcement required as a prerequisite for the return of the child; this acts as a applications are still filed each year. Therefore, more needs to be protective measure to ensure that justice and fairness is achieved done to address this. (BDU v BDT).

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Enforcement of Access Orders In situations where a parent has been denied access to his child Wong Kai Yun by the other parent in breach of access orders made by the court, Chia Wong LLP 6 Temasek Boulevard the obvious recourse is to file a case for contempt of court for #38-02 Suntec Tower 4 disobeying the court order. However, taking a cue from civil cases, 038986 this requires a high standard of proof; the party alleging the breach Singapore

must show beyond a reasonable doubt that there was a deliberate act Tel: +65 6346 0002 of breaching an order of court (OCM Opportunities Fund II, LP and Email: [email protected] others v Burhan Uray and others [2005] 3 SLR(R) 60). Therefore, URL: www.chiawongllp.com there is a need for more ways tailored for family law to enable a

Singapore parent to have recourse to when denied access to his child by the Having been in practice for the last 23 years, Ms Wong Kai Yun other parent. maintains a niche focus on private wealth and family matters. Ms Wong’s family law clients typically comprise largely high-net-worth Relocation individuals with especial concerns over financial settlements, as well Since 2015, the weight of the relocation cases has been with the as expatriates with cross-jurisdictional issues. left-behind parent, and the custodial parent’s reasonable wishes are Ms Wong is a Fellow of the International Academy of Family Lawyers, no longer a determinative factor in allowing a relocation application as well as a registered practitioner of the Society of Trust and Estate (see question 7.3). It is urged that the Singapore courts should take Practitioners. She is an accredited Singapore Mediation Centre Associate Mediator, an accredited Mediator on their Family Panel, precaution not to be too stringent, particularly in cases where the and sits on the panel of their Collaborative Family Practice. Ms Wong parent wishes to relocate back to the country they came from (taking is also a Mediator on the panel of Cross-Border Family Mediators of traction from UFZ v UFY [2018] SGHCF 8). Mediation bei Internationalen Kindschaftskonflikten (MiKK), Berlin, Germany. Further, 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 2018, Ms Wong has been honoured as part of the Top 200 IFC (International Financial Centre) Power Women, and was also included as one of a select few Singaporean lawyers listed on the Citywealth Leaders List. She was also named in the Doyles Guide for Family & Divorce Lawyers from 2015 to 2018.

With a strong litigation foundation, the team of lawyers at Chia Wong LLP pride themselves on their aggressive effective style of litigation and dispute resolution. Having handled many high-profile cases as a team, they have honed a boutique practice which is not just sound on legal principles, but also recognises the realities of media exposure, commercial practicality and individual sensitivity. The clientele of Chia Wong LLP range from public listed companies to individuals, and the scope of their briefs ranges from multi-million dollar international corporate disputes to local personal legal entanglements. A sampling of the cases handled by their team include media-sensitive defamation cases, heavily contested matrimonial cases, breach of directors’ duties in prominent public organisations, disputes arising from substantial investments gone awry, breach of complex international trade contracts, etc. With associate offices in various jurisdictions, they have handled many cross-border disputes and various public infrastructure and private building projects involving foreign entities and individuals. The firm was named 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, as well as the Boutique Family Law Firm of the Year in the ACQ5 Global Awards 2015. They were also featured in the Business Times Salutes Enterprise in 2016 and in Corporate INTL Magazine’s 2017 and 2018 annual Who’s Who Handbook.

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Spain

Arbáizar Abogados Amparo Arbáizar

Regarding article 3 of the Council Regulation (EC) No. 4/2009 1 Divorce of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating 1.1 What are the grounds of jurisdiction for divorce to maintenance obligations in Member States, jurisdiction shall proceedings? For example, residence, nationality, lie with: a) the Court where the defendant is habitually resident; domicile, etc.? b) the Court where the creditor is habitually resident; c) the Court which according to its own law, has jurisdiction to entertain Spain is party to the Council Regulation (EC) No. 2201/2003 of proceedings concerning the status of a person if the matter relating 27 November 2003 concerning jurisdiction and the recognition to maintenance is ancillary to those proceedings, unless that and enforcement of judgments in matrimonial matters and the jurisdiction is based solely on the nationality of one of the parties; matters of parental responsibility, repealing Regulation (EC) No. or d) the Court which according to its own law, has jurisdiction 1347/2000, known as “the Brussels II Regulation”. Now, this to entertain proceedings concerning parental responsibility if the Regulation rules the Spanish International Private Law concerning matter relating to maintenance is ancillary to those proceedings, international jurisdiction on divorce and the grounds of jurisdiction unless that jurisdiction is based solely on the nationality of one of set out in article 3 of the Regulation apply. The Spanish Law of the the parties. Judicial Power was reformed in 2015, with regards to international Article 22 quáter f ) of the Spanish Law of the Judicial Power rules jurisdiction and its article 22 quáter c) adopts the very same grounds the international jurisdiction of the Spanish Courts on maintenance for jurisdiction as article 3 of the Regulation. obligations as set out in article 3 of the “Maintenance Regulation”. Spain retains the residual jurisdiction on divorce when: Spain retains the residual jurisdiction on maintenance ■ both parties are habitually resident in Spain at the time the obligations when: proceedings are issued; ■ the petitioner or the respondent is habitually resident in ■ Spain was the last matrimonial habitual residence and one of Spain; and the spouses still lives there; ■ the Spanish Courts have jurisdiction concerning the status of ■ Spain is the respondent’s habitual residence; a person or concerning parental responsibility and the matter ■ in the case of uncontested divorce, when one of the spouses is relating to maintenance is ancillary to those proceedings. habitually resident in Spain; Spain is party to the Council Regulation (EU) 2016/1103 of 24 ■ the petitioner is habitually resident in Spain at least one year June 2016, implementing enhanced cooperation in the area of before proceedings are issued; jurisdiction, applicable law and the recognition and enforcement of ■ the petitioner is Spanish and has been habitually resident in decisions in matters of matrimonial property regimes, which will be Spain for at least six months before proceedings are issued; applicable between Member States from 29 January 2019. and According to this Regulation the jurisdiction in matters of the ■ both spouses are of Spanish nationality. matrimonial property regime in the event of the death of one of the Article 8 of “the Brussels II a Regulation” rules that the Courts of spouses will be retained by the Court of the Member State which the Member State where the child is habitually resident at the time is ruling the succession of the spouse pursuant to Regulation the Court is seised shall have international jurisdiction for parental (EU) 650/2012 on Succession. The jurisdiction in matters of the responsibility and childcare arrangements. The Spanish Law of the matrimonial property regime in cases of divorce, legal separation Judicial Power has been reformed and its article 22 quáter d) meets or annulment will be ruled by the Court of the Member State which the grounds for jurisdiction as set out in article 8 of the Regulation. is seised for the divorce, legal separation or annulment pursuant to Spain retains the residual jurisdiction on parental responsibility Regulation (EU) 2201/2003. and childcare arrangements when: Article 22 quáter c) of the Spanish Law of the Judicial Power rules ■ the descendent is habitually resident in Spain at the time the the international jurisdiction of the Spanish Courts in matters of proceedings are issued; and matrimonial property regimes. ■ the petitioner is Spanish or has been habitually resident in Spain retains the residual jurisdiction in matters of matrimonial Spain for at least six months before the proceedings are property regimes when: issued. ■ both parties are habitually resident in Spain at the time the proceedings are issued;

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■ Spain was the last matrimonial habitual residence and one of The matrimonial property regime will be liquidated in separate court the spouses still lives there; proceedings (or with a notary public) after the Divorce Decree. ■ Spain is the respondent’s habitual residence; ■ in the case of uncontested divorce, when one of the spouses is 1.6 Are foreign divorces recognised in your jurisdiction? habitually resident in Spain; ■ the petitioner is habitually resident in Spain at least one year Yes, they are directly recognised by all parties of the Brussels II a before proceedings are issued; Regulation. ■ the petitioner is Spanish and has been habitually resident in Otherwise, a foreign divorce will be recognised in an “Exequatur” Spain for at least six months before proceedings are issued;

Spain and proceeding on grounds of international/bilateral conventions or on a mutual recognition basis. ■ both spouses are of Spanish nationality. Spanish Law of Civil Procedure article 769 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 last Separation proceedings are treated like divorce proceedings. matrimonial residence or residence of any of the petitioners. The grounds for nullity are different and it is much more difficult to Only for childcare arrangements proceedings (custody and obtain than a divorce or separation decree. maintenance): ■ First instance Court of the parent’s last residence. If the 1.8 Can divorce proceedings be stayed if there are parents live in different countries, the petitioner can choose proceedings in another country? between the respondent’s residence or the children’s residence. Yes, they can. Article 19 of the Brussels II a Regulation is applicable between 1.2 What are the grounds for a divorce? For example, is parties. there a required period of separation, can the parties have an uncontested divorce? Otherwise, the “Declinatoria” proceedings, due to a lack of international jurisdiction, are ruled in articles 63–66 of the Spanish Law of Civil Procedure. There are neither grounds for divorce nor a required period of separation. One party, or both parties, can issue separation/divorce proceedings three months after the marriage. These three months 2 Finances on Divorce will not be required in cases where there is a danger to the petitioner or the children. Yes, the parties can have an uncontested divorce. 2.1 What financial orders can the court make on divorce?

Spousal and children maintenance orders and use of the matrimonial 1.3 In the case of an uncontested divorce, do the parties home are in a child’s best interest. need to attend court? In the case of the separation of assets matrimonial regime, a Yes, they do if they have children together, since only the Courts can compensation order to the spouse for his/her dedication to the make child arrangement orders. They can sign the agreement before family which has produced a corresponding loss of professional a notary public if they do not have any children and therefore obtain opportunities, as well as a financial order to put an end to the joint directly the Divorce Absolute. properties of the spouses.

1.4 What is the procedure and timescale for a divorce? 2.2 Do matrimonial regimes exist and do they need to be addressed by the court on divorce? Is there a default regime? It is very different from Court to Court, but in main cities with specialised Family Courts, the timescale is approximately six Yes, they do. The matrimonial property regime will finish “ope months for first instance Divorce Decree. The appeal may take legis” at the Divorce Decree date. After the Divorce Decree, the about six months/one year. In small town Courts, this will usually parties can issue the specific liquidation of matrimonial property not be more than one year. regime and proceed to distribute the assets and liabilities between Uncontested divorce proceedings are much quicker; between one them. month and three months to obtain the Divorce Absolute. They can also have an out-of-court agreement and liquidate the matrimonial property regime in a notary public Deed. 1.5 Can a divorce be finalised without resolving other Spain comprises several territorial units, some of which have their associated matters? For example, children and own rules of law in respect of family and succession. The common finances. point is that in all of them you can choose your matrimonial property regime in a notary public Deed. But, in the absence of an agreement, It cannot be finalised without resolving child arrangements, a matrimonial property regime will apply by default: maintenance and the use of the family home. ■ Civil Code: Joint ownership of assets (Régimen de gananciales).

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■ Catalonia, Aragón and the Balearic Islands: Separate ownership of assets. 2.5 If a couple agrees on financial matters, do they need ■ Galicia: Joint ownership of assets. to have a court order and attend court? ■ Basque Country (differences between the counties): Joint ownership of assets/Universal community of assets. A couple without children that agrees on financial matters can sign an agreement in a Deed in front of a Spanish notary public on ■ Navarra: Matrimonial company of conquests “Sociedad divorce regarding spousal maintenance obligation and liquidation of conyugal de conquistas”. matrimonial property regime. ■ Parts of Extremadura: Community of assets “Fuero del Baylío”. A couple with children must always issue divorce proceedings

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

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There are other matrimonial property regimes recognised under In the case of shared custody, the children remain in the matrimonial the family law of some autonomous communities, as explained in home with the spouse who has more difficulty in earning a living and question 2.2. the spouse whose financial situation is better must find a new home. When both spouses are in a similar financial position, the children will live each period of shared custody in each parent’s new home. 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? The parents can then put an end to the matrimonial joint property. Can the court make orders applying foreign law rather If there are no children, the spouse who is in a weaker financial than the law of the jurisdiction? position remains in the matrimonial home until he/she can have access to another home. The Divorce Decree can determine how

Spain Spain is a party of the Council Regulation (EU) No. 1259/2010 of long this spouse might remain in the matrimonial home. 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, known as the 2.10 Is the concept of “trusts” recognised in your “Rome III Regulation”. This Regulation shall apply in conflicts of jurisdiction? laws on divorce between participating member states. Article 107.2 of the Spanish Civil Code rules the applicable law on No, it is not. Spain is not party to the Hague Convention of 1985. divorce for foreign nationals and it has been reformed to converge A foreign trust can be recognised by the Spanish Court subject to with the grounds as set out in “Rome III Regulation”. strong evidence of the Foreign Law (as explained in question 2.8) Spain has opted in to the 2007 Hague Protocol of the EC so that the Spanish Judge can understand the content, legal nature, Regulation No. 4/2009 in relation to maintenance as set out in article instrumentality, purpose, etc. of the trust in this specific case. 15. The general rule (article 3) on applicable law in accordance There are some Spanish legal instruments similar to trusts, such with the 2007 Hague Protocol on the applicable law to maintenance as investments funds, pension funds, protected properties for the obligations shall be the law of the State of the habitual residence of disabled, etc. the creditor. According to articles 7 and 9 of the Spanish Civil Code, the applicable law to maintenance obligations shall be ruled by the The Spanish foundation (“fundación”) must have a general interest 2007 Hague Protocol. purpose but its legal frame is similar to the trust. Spain is a party of the Council Regulation (EU) 2016/1103 of In the Spanish Law of Succession, the “fideocomiso” is similar to 24 June 2016, implementing enhanced cooperation in the area of a trustee as outlined in article 781 of the Spanish Civil Code and jurisdiction, applicable law and the recognition and enforcement article 426 of the Catalonian Civil Code. Law 293 of the Navarra of decisions in matters of matrimonial property regimes and the New Regional Code contains the rules of the “fiducia continuada” Council Regulation (EU) 2016/1104 of 24 June 2016 implementing which is quite similar to the trust. enhanced cooperation in the area of jurisdiction, applicable law There are different civil law contracts which can be selected on and the recognition and enforcement of decisions in matters of a case-by-case basis to obtain the same purpose as with a trust: the property consequences of registered partnerships. These donation; agency; company; mortgage; foundation; mandate; and Regulations shall apply in conflicts of laws between participating protected properties for the disabled, etc. members to marriages or civil partnerships performed after 29 January 2019. 2.11 Can financial claims be made following a foreign Otherwise, the Spanish Civil Code rules in articles 2–3 and 9, that divorce in your jurisdiction? If so, what are the the applicable law to the matrimonial regimes is determined by: grounds? ■ Common nationality when they got married. ■ Public Deed choosing between the national law/habitual The foreign divorce must be recognised by the Spanish Courts. residence of any spouse. The financial claim must be related to immovable assets situated ■ First common habitual residence after the marriage. within the Spanish jurisdiction upon which the foreign Judge did not ■ Country where the marriage took place. have jurisdiction to rule. Foreign law can be applicable by the Spanish Courts, subject to the It might also consist of liquidating a Spanish property regime before proof of the Foreign Law by the party who seeks its application. the Spanish Courts if it was not decided in the foreign Divorce Decree. How to give evidence of the Foreign Law before the Spanish This is not commonplace. Court: 1. Content and validity of the Foreign Law: by a public 2.12 What methods of dispute resolution are available to document issued by the Embassy in Madrid or the Spanish 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 Arbitration Spanish Judge how the Foreign Law would be applied to this and Collaborative law are not as common. case by the foreign Court. There is the risk that, if the Judge considers that the Foreign Law was not sufficiently proved, Spanish law will be directly applied. 3 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 children remain in the matrimonial home with the spouse who has custody of them. The marital agreements are recognised as private contracts under the

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Spanish law and are therefore binding for the contracting parties if Catalonia only provides for municipal registers. The existence of a they are not against the child’s best interest and the Spanish “ordre partnership is proved by means of an authentic/notarial Deed. public”. The marital agreement will be enforceable when included Each autonomous community regulates the register in a different in a Court Order after the divorce proceeding. way, and the effects of registration range from being simply The foreign marital agreement can also be recognised as a private declarative to having practical equivalence with marriage. Some contract subject to evidence of the Foreign Law before the Court. It autonomous communities do not provide for such a regional register. can be enforced if the Court recognises its terms and conditions and includes them in the Court Order. 4.4 Are same-sex couples permitted to marry or enter The marital agreement can be directly enforceable if it is granted in other formal relationships in your jurisdiction? a Deed in front of a Spanish notary public. Spain Yes, they can marry and adopt children or adopt a civil partnership. 3.2 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of 5 Child Maintenance the matrimonial property regime?

5.1 What financial claims are available to parents on Marital agreements can cover a spouse’s financial claims on behalf of children within or outside of marriage? divorce, e.g. maintenance. Compensation can be agreed in cases where couples choose the separation of assets matrimonial property Child maintenance and use of the matrimonial home are available. regime. There is no difference within or outside of marriage. The election of the matrimonial property regime must be granted in a Deed in front of a Spanish notary public. 5.2 How is child maintenance calculated and is it administered by the court or an agency? 3.3 What are the procedural requirements for a marital agreement to be enforceable on divorce? Child maintenance can only be calculated and administered by the Court. The marital agreement must first be approved by the Court on The costs and expenses of the child, such as upbringing, clothing, divorce and included in the Divorce Decree, which can be enforced education, health care, etc. must be estimated. afterwards. The incomes of each parent are also taken into account when The marital agreement could be directly enforced on divorce if it considering maintenance and which spouse remains in the was granted in a Deed in front of a Spanish notary public and the matrimonial home. couple does not have children. The Spanish General Council of Justice has produced an illustrative table of child maintenance calculation for the Courts, lawyers, parents, 4 Cohabitation and the Unmarried Family etc. The main aim is to facilitate the estimation of child maintenance nationwide to encourage agreements between the parents.

4.1 Do cohabitees, which do not have children, have financial claims if the couple separate? What are the 5.3 For how long is a parent required to pay child grounds to make a financial claim? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? The grounds for a financial claim are to prove that the couple had joint properties, joint bank accounts, etc. The grounds to make a The parent is required to pay child maintenance until he/she can financial claim are the intention and existence of shared estates obtain financial support for themselves. That is at least until he/she between the cohabitees. is 18 years old and can therefore apply for a job. The child can seek maintenance during university. 4.2 What financial orders can a cohabitee obtain?

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

The formal partnership status for cohabitants is not regulated in the 5.5 Can a child make a financial claim directly against their parents? Spanish Civil Code or at a national level. Some autonomous communities have produced their specific A child can make a claim for financial support directly against their laws on partnership with legal provisions for the existence of a parents when he/she is older than 18 and the child maintenance partnership register: Andalucía; Aragón; Asturias; Balearic Islands; obligation has ended. Basque Country; Canary Islands; Castilla-La Mancha; Castilla y León; Extremadura; Galicia; Madrid; and Valencia. The child’s maintenance obligation claim is made between the parents on behalf of their children.

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

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

In Spain, “rights of custody” actually refers to “parental responsibility” 6.6 Without court orders, what can parents do

Spain which is for both parents. When they cannot agree on an issue, they unilaterally? For example, can they take a child must take the matter to a Court which will issue an order stating abroad? which parent decides this specific matter. Parental responsibility will not be affected by a divorce. The Court Both parents almost always have the children’s parental responsibility, must decide at the time of the divorce which parent the child lives therefore, they must agree in almost every important decision with (custody) and which parent has the “right of access”. However, relating to their children’s welfare. it should be noted that the usual order is one of “shared custody”. They can take a child abroad on holidays unilaterally. They must There is no difference between married or unmarried parents to inform the other parent; however, his/her permission is not required. exercise the rights of custody. 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 6.2 At what age are children considered adults by the court? The tendency now, is to grant shared custody to both parents if at Children are considered adults by the Court when they are 18 years least one of them applies for it and it is in the child’s best interest. old. Under the Spanish Law of Civil Procedure, a child must be heard at Court when they are 12 years old or older. The child might 6.8 Are unmarried parents treated in the same way as be heard before if he/she shows enough maturity. married parents when the court makes orders on separation or divorce?

6.3 What is the duration of children orders (up to the age They are equally treated in relation to parental responsibility, child of 16 or 18 or otherwise)? arrangements and use of the family home. Children orders can be made until the children are 18 years old. Normally, however, they stop at the age of 16, because at this age it 6.9 Is a welfare report prepared by an independent is useless and counterproductive to oblige a child to visit or live with professional or is the decision taken by the Judge a parent if he/she does not want to. alone? If so, does the child meet the Judge?

Most Family Courts have a psychologist that prepares a welfare 6.4 What orders can the court make in relation to report upon the request of the parents, the Ministerio Fiscal or the children? Does the court automatically make orders in Judge. relation to child arrangements in the event of divorce? The Judge will meet the child if he/she is 12 years old or older. If Maintenance orders, parental responsibility orders, custody orders, they are much younger, the Judge will only take into account the right of access orders, national and international relocation orders welfare report to avoid disturbing the children too much with the and payment orders of reimbursement of extra costs and expenses divorce proceedings. made on the child’s behalf and not included in the maintenance The Judge will ensure that his decision meets the Ministerio Fiscal obligation. report. If the parents must make a decision concerning the child and they cannot agree, they must issue a proceeding and the Court will issue 6.10 Is there separate representation for children in your an order stating which parent can decide in this specific matter (for jurisdiction? example, religious issues, medical treatments, surgery, choice of school, etc.). The Ministerio Fiscal must always be invited by the Court to Yes, the Court must automatically make a child arrangements order proceedings relating to children, to defend the child’s best interest. on divorce. The “Ministerio Fiscal” must be invited to the divorce The Ministerio Fiscal cooperates closely with the Court and has a proceedings to protect the child’s best interest. They represent the similar education and professional background to a Judge but they Spanish Authorities’ protection of the child’s best interest. The are not independent because they are Spanish Government Civil Ministerio Fiscal cooperates closely with the Court and has a Servants. They represent the Spanish Authorities’ protection of the similar education and professional background as a Judge; however, child’s best interest. they are not independent because they are Spanish Government Otherwise, the children are represented by their parents until they Civil Servants. are 18 years old. A parent can also request the Court to order interim measures regarding maintenance, custody, rights of access and use of the family home until the Divorce Decree is produced.

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The Spanish Central Authority is the Ministerio de Justicia – 6.11 What methods of dispute resolution are available to Servicio de Convenios. resolve disputes relating to children? Address: Calle San Bernardo nº 62 – E- 28071 Madrid At present, the principal method is mediation. There are also some Telephone: +34 91 390 4437 collaborative lawyers. Email: [email protected]

7 Children – International Aspects 8 Overview Spain 7.1 Can the custodial parent move to another state/ 8.1 In your view, what are the significant developments in country without the other parent’s consent? family law in your jurisdiction in the last two years?

No, he/she cannot do it in any event. There have not been any new laws in Spain in the last two years regarding the Family jurisdiction.

7.2 If the court is making a decision on relocation of a The EU Regulation on Matrimonial Property Regime and the EU child abroad, what factors are taken into account? Regulation on Property of the Registered Partners will be applicable in Spain and other Member States from 29 January 2019. The child’s best interest is taken into account, as well as the age The most significant development is the Spanish High Court of of the children, wider family support in the new country, better Justice (Tribunal Supremo) case law establishing share custody as education opportunities and whether there will eventually be a better most beneficial for the child’s best interest. standard of living in the new country.

8.2 What are some of the areas of family law which you 7.3 In practice, how rare is it for the custodial parent to be think should be looked into in your jurisdiction? allowed to relocate internationally/interstate? We need a nationwide Registered Civil Partnership Law (PACS). If both parents are foreigners, it is easier to relocate internationally. Please see question 4.3. If one parent is Spanish, and therefore the child is too, it is more I am in favour of regulating surrogacy in Spain, which is currently difficult. prohibited. The main ground to allow relocation in Spain is a better job with Spain comprises several territorial units, some of which have their better financial prospects for the custodial parent when the earnings own rules of law in respect of family and succession. Please see of the left-behind parent are not relevant and it would provide a question 2.2. This situation affects the applicable law regarding better standard of living to the children. the “EU Regulation on Succession” and the “EU Regulation on Other factors are the distance between the left-behind parent and Matrimonial Property Regime” and treats Spanish nationals and the new home, the existence of wider family support in the new other Member States nationals differently. residence, etc. Articles 9 and 8 of the Spanish Civil Code must be amended to be in accordance with the EU Succession Regulation’s general rule 7.4 How does your jurisdiction deal with abduction on applicable law: the law of the State in which the deceased had cases? For example, is your jurisdiction a party to the his/her habitual residence at the time of death (not the deceased’s Hague Convention? nationality). Articles 9 and 8 of the Spanish Civil Code must be amended to be Spain is a party of the Hague Convention and of the Brussels II a in accordance with the “EU on Succession” and the “EU Regulation Regulation. on Matrimonial Property Regime” which rule that the applicable Articles 778 quáter – 778 sexies of the Spanish Law of Civil law to the succession rights of the widowed spouse is the law of the Procedure rule the return proceedings in Spain between party States succession (not the Law of the matrimonial effects). in cases of the wrongful removal or retention of the child.

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Amparo Arbáizar Arbáizar Abogados Avenida Maisonnave, 41 – 7º H E- 03003 Alicante, Spain / Calle Kandinsky, 4 – 2º B E- 29010 Málaga Spain

Tel: +34 965 03 09 96 / +34 678 50 88 91 Email: [email protected]

Spain URL: www.arbaizarabogados.com

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 . She is a litigation expert in the Spanish Jurisdiction and has acted as a Spanish legal expert before the Courts of the United Kingdom. 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 Successions in Law and the Economics Superior Institute (ISDE) of Madrid University. She has been awarded the Spanish Association of Family Lawyers Accolade 2018 for the best article in Family Law. She has made various contributions to specialist publications and regularly gives lectures, seminars and conferences in Spain and abroad. She is fluent in English and German. 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 German Spanish Lawyers Association (AHAJ-DSJV).

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.

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Sweden Torgny Lebenberg

Lebenberg Advokatbyrå AB Kristin Håkansson

to stay in a joint home, or provide for a spouse’s obligation to pay 1 Divorce alimony. Interim decisions can also be made in matters concerning maintenance allowance and custody, access or residence of a child. 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, 1.5 Can a divorce be finalised without resolving other domicile, etc.? associated matters? For example, children and finances. A divorce case can be handled by a Swedish court if: both parties, or at least the respondent, are Swedish citizens; the applicant is a The main rule states that when divorcing, the (ex-)spouses shall Swedish citizen or is/has been habitually resident in the country; divide their estate. However, such division is not necessary if the or the applicant is not a Swedish citizen but has been habitually spouses only have private property and neither of them requests a resident in Sweden for at least one year. take-over of a home or of household goods belonging to the other If the situation falls within the scope of Council Regulation (EC) spouse. The question of estate division is normally handled outside No 2201/2003 of 27 November 2003 (known as ‘Brussels II’), court, please see question 2.1. please see article 3 of the regulation. Regarding questions within The court can, but is not obliged to, make decisions on issues the purview of Council Regulation (EU) 2016/1103 of 24 June 2016 regarding child maintenance, custody, access, and residence of a (Regulation (EU) 2016/1103), please see articles 5 and 6 of the child, restraining orders, the right for a spouse to stay put in a joint regulation. residence and appointment of a distribution executor. The custody of joint children remains joint as long as the divorcing parents do not 1.2 What are the grounds for a divorce? For example, is call for sole custody. there a required period of separation, can the parties have an uncontested divorce? 1.6 Are foreign divorces recognised in your jurisdiction?

Spouses are not under any obligation to assign motives or reasons Divorces announced in foreign countries shall be recognised in for making a petition for divorce. Consequently, the court, when Sweden if there are, when taking the citizenship of the spouse or making decisions on an annulment of marriage, does not pay any other connection with the foreign country into account, reasonable attention to why the parties in a certain case want to divorce or not. motives for having the divorce in question tried in that country. If the situation falls within the scope of Brussels II, please see 1.3 In the case of an uncontested divorce, do the parties article 21. Regarding questions within the purview of Regulation need to attend court? (EU) 2016/1103, please see articles 36 and 37.

No, spouses who agree on having their marriage dissolved can make a joint petition for divorce and do not need to attend court. 1.7 Does your jurisdiction allow separation or nullity proceedings?

1.4 What is the procedure and timescale for a divorce? No. However, a claim for a declaratory judgment concerning whether a marriage is lawful or not can be established by court When an application for divorce is made, the court must consider if proceedings between the spouses. Also, a matter concerning a decision on dissolution of the marriage can be made instantly. If whether a marriage is lawful can be tried within litigations in which this is not the case, a period of consideration is required. When no someone’s right depends on it. claims concerning associated matters are made (see question 1.5) and no period of consideration is requested or has expired, the court can make a ruling on the dissolution of the marriage without having 1.8 Can divorce proceedings be stayed if there are proceedings in another country? a main hearing.

Further, before a ruling on divorce has been made and has become If a divorce proceeding is pending in a foreign country, and the legally binding, the court can make interim judgments. Such same case is brought to a Swedish court by the same parties, the decisions can, before an estate division, establish who has the right

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Swedish case can be temporarily stayed if it can be presumed that the foreign judgment will be effective in Sweden. 2.7 Is the concept of matrimonial property recognised in your jurisdiction? If the situation falls within the scope of Brussels II, please see articles 19.1 and 27.1. Regarding questions within the purview of Yes. When a marriage ends, each spouse is entitled to receive half Regulation (EU) 2016/1103, please see articles 17.1, 18.1 and 41. of the value of the matrimonial property, irrespective of whether the marriage is dissolved due to divorce or death. 2 Finances on Divorce However, in divorce matters, the richer spouse can be entitled to keep more than half of the net value of the matrimonial assets if special circumstances are at hand. Further, if a marriage is dissolved

Sweden 2.1 What financial orders can the court make on divorce? because of death, the surviving spouse has the right not to accept a 50/50 division but to instead keep his or her own assets. The division of the estate is normally handled outside court, but the court can make provisional orders preventing the spouse with the larger part of assets from disposing of these until the matter 2.8 Do the courts treat foreign nationals differently on is settled. Further, the court can make decisions on alimony and divorce, if so, what are the rules on applicable law? Can the court make orders applying foreign law rather interim decisions on the right to use a joint home. than the law of the jurisdiction?

2.2 Do matrimonial regimes exist and do they need to be The main rule is that Swedish law shall be applied. Under certain addressed by the court on divorce? Is there a default circumstances though, the court will need to apply foreign law. For regime? example, if one spouse does not agree to a divorce and the spouses are foreign citizens and none of them have had their residence in Sweden Yes, the matrimonial property regime is the default regime. Please during the latest year, a Swedish court cannot decide on divorce if also see question 2.7. there is no valid ground for dissolution of the marriage according to the law of the state where both or either of the spouses are citizens. 2.3 How does the court decide what orders to make? Regarding questions within the purview of Regulation (EU) What factors are taken into account? 2016/1103, please see articles 22 and 26.

The court will only address matters it is asked to handle. Within 2.9 How is the matrimonial home treated on divorce? a divorce case, the court can make financial orders concerning alimony and child maintenance. Regarding what factors are taken The spouse most in need of a matrimonial home has the right to into account when such orders are made, please see questions 2.6 keep it. However, the value of such property shall, if not having an and 5.2. Usually, alimony shall be paid continuously after the insignificant value, be deducted from the total share of that spouse. dissolution of a marriage. However, lump sum orders can be made in exceptional cases. 2.10 Is the concept of “trusts” recognised in your jurisdiction? 2.4 Is the position different between capital and maintenance orders? No. Sweden has not signed the Convention on Law Applicable to Trusts and on their Recognition, the Hague Convention of 1985. Please see question 2.1. Concerning what factors are taken into account when making maintenance orders, please see questions 2.6 and 5.2. Capital orders are only made exceptionally. 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? Please see questions 1.1 and 1.6. Claims regarding the spouses’ economic relationship can be brought up by a Swedish court if: the No, they do not. claims are connected to a Swedish divorce case; one of the spouses is a habitual resident in Sweden; the matter concerns property located 2.6 How long can spousal maintenance orders last and in Sweden; or the respondent has accepted the case being handled are such orders commonplace? by the Swedish court without making claims about jurisdiction.

After a dissolution of the marriage, the (ex-)spouses are usually 2.12 What methods of dispute resolution are available to responsible for their own maintenance. Nevertheless, an (ex-) resolve financial settlement on divorce? E.g. court, spouse in serious need of economical support is entitled to receive mediation, arbitration? spousal maintenance during a transition period. If an (ex-)spouse has trouble earning a living after a long marriage, or any other (Ex-)spouses who cannot agree on issues concerning their estate exceptional reasons exist, they can be entitled to receive spousal division can call for the court to appoint an estate distribution maintenance during a longer period of time. executor. If such appointment is made, the estate distribution executor is responsible for making all financial orders regarding how the assets shall be allocated. An important part of the role of an estate distribution executor is to act as a mediator between the parties. However, if the parties,

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despite the help of the estate distribution executor, cannot settle, the are included. Cohabitees do not have any maintenance obligations executor has the final say. If the parties are not satisfied with the relative to each other. decisions made they can appeal to court.

Alimony matters are settled by court. 4.2 What financial orders can a cohabitee obtain?

3 Marital Agreements Please see question 4.1. Cohabitees who cannot agree on issues concerning the estate division can call for the court to appoint an estate distribution executor. Decisions made by an estate 3.1 Are marital agreements (pre and post marriage) distribution executor can be appealed to a court.

enforceable? Is the position the same if the agreement Sweden is a foreign agreement? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? Through a marital agreement, spouses can agree that some (or all) of their assets shall be classified as private property and not No. Currently, marriage is the only type of formal partnership included in an estate division. The agreement is not enforceable existing in Sweden. itself. However, if the division of the estate is ruled by an estate distribution executor (please see question 2.12), his or her decision can be appealed to the court. A decision from the court regarding 4.4 Are same-sex couples permitted to marry or enter the estate division is enforceable. other formal relationships in your jurisdiction? A foreign marital agreement is valid and effective in Sweden if it is compatible with the law which was applicable to the agreement Yes. Please see question 4.3. when it was made. If the agreement is made before marriage, it is enforceable if it is compatible with the law which was applicable 5 Child Maintenance when the parties got married. Furthermore, the legal act shall be deemed to be valid if it meets the formal requirements of the law of the State in which it is being established or where the spouses 5.1 What financial claims are available to parents on are domiciled. However, a marital agreement between spouses behalf of children within or outside of marriage? who are habitually resident in Sweden at the time it is drawn up is valid only if registered by the Swedish Tax Agency. Regarding the A custodial parent can make claims concerning maintenance formal validity of a marital agreement please also see article 25 of allowance on behalf of the child. If the custody is joint, the parent Regulation (EU) 2016/1103. who permanently lives with the child is the one authorised to represent the child in a case concerning the other parent’s liability of 3.2 Can marital agreements cover a spouse’s financial paying maintenance allowance. claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of 5.2 How is child maintenance calculated and is it the matrimonial property regime? administered by the court or an agency?

A marital agreement is limited to govern the question whether the The starting point is that both parents, taking the child’s needs assets are private or matrimonial property, i.e., if the worth of the and the parents’ ability to pay into account, shall contribute with assets shall be included and divided between the parties in a future a reasonable amount of money. The size of the maintenance estate division or not. allowance is settled either by an agreement between the parents, or by a declaratory judgment by the court. 3.3 What are the procedural requirements for a marital In case the parent liable for payment of maintenance will not or agreement to be enforceable on divorce? cannot pay, the custodial parent permanently living with the child can apply for and receive maintenance support. While maintenance A marital agreement can be made by spouses or spouses-to-be only. allowance shall be paid by the parent not living with the child, The agreement needs to in be writing and signed by both parties. maintenance support – as it constitutes a social benefit – is paid, and Also, to be valid, the agreement must be registered by the Swedish dealt with, by the Social Insurance Office. Tax Agency. A marital agreement between spouses-to-be becomes effective when the parties marry if it is handed to the Swedish Tax Agency within one month after the wedding. An agreement about 5.3 For how long is a parent required to pay child maintenance or provide financial support for their a future estate division which is not a marital agreement is null and children? For example, can a child seek maintenance void. Please also see question 3.1. during university?

4 Cohabitation and the Unmarried Family The parents are obligated to provide economical support for their children until they turn 18, or, if the children are studying at elementary or high school level, until they reach the age of 20. 4.1 Do cohabitees, which do not have children, have financial claims if the couple separate? What are the grounds to make a financial claim? 5.4 Can capital or property orders be made to or for the benefit of a child?

Cohabitees who separated can call for an estate division in which A child can, as any person, have legal rights and hold assets. their joint home and household goods obtained for collective use

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However, the legal competence of a child is limited. Concerning court proceedings, the child is normally represented by its parents. 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? 5.5 Can a child make a financial claim directly against their parents? A custodial parent cannot make important decisions regarding the child without the other custodial parent’s authorisation. However, Please see question 5.1. A child is usually considered a party in not all everyday decisions need to be authorised by both the cases concerning maintenance allowance even though the claims, custodial parents. A sole custodial parent has an individual right in practice, are made by one of its parents. to make decisions regarding all the child’s personal matters. Please

Sweden also see question 7.1. 6 Children – Parental Responsibility and Custody 6.7 Is there a presumption of an equal division of time between separating or divorcing parents?

6.1 Explain what rights of custody both parents have Please see question 6.5. The main rule is that custody remains joint in your jurisdiction whether (a) married, or (b) even after a divorce. Also, orders regarding alternative residence unmarried? are not unusual. These orders usually mean that the child spends an equal amount of time with both its parents. Married couples automatically receive joint custody when a child is born; whereas, if the parents are unmarried, the mother gets sole custody. If the parents get married after the birth of a child, the 6.8 Are unmarried parents treated in the same way as custody will be joint from the day they marry. A parent who lacks married parents when the court makes orders on separation or divorce? custody and wants to receive sole or joint custody has the right to take legal action. The court does not make orders on separation and is not involved in the question of separation if the parents are not married. So is 6.2 At what age are children considered adults by the the case regardless of whether the parties separating have children court? or not.

By law, children are considered adults at the age of 18. 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge 6.3 What is the duration of children orders (up to the age alone? If so, does the child meet the Judge? of 16 or 18 or otherwise)? When making decisions regarding custody, access or residence, As a main rule, court orders concerning children are obtained as the court has an obligation to assure that matters are properly long as the individual in question is considered a child (please see investigated. question 6.2). After turning 18, the individual is legally considered If needed, the court can commission the Social Welfare an adult, and holds individual legal competence. Committee to make a so-called custody investigation. Within such investigations an appointed investigator makes interviews 6.4 What orders can the court make in relation to with the parents as well as the child (depending on the age of the children? Does the court automatically make orders in child though). An examination of the child itself during trial is only relation to child arrangements in the event of divorce? allowed under special circumstances and if it is obvious that the child would not be harmed by such examination. Please see question 1.5. The most common court orders in relation to children, however, concern custody, access and residence. 6.10 Is there separate representation for children in your jurisdiction? 6.5 What factors does the court consider when making orders in relation to children? No. However, the parents or the Social Welfare Board can, in some cases, represent a child and make claims in its name. In certain The child’s best interests shall be conclusive in every decision criminal trial procedures, a special deputy of a child shall be regarding custody, access or residence made by the court. When appointed. appraising the child’s best interests, the court shall pay particular attention to: 6.11 What methods of dispute resolution are available to ■ the risk of the child being exposed, abducted or maltreated; resolve disputes relating to children? ■ the child’s need of a good and close relationship with both its parents; and In order to help parents having problems cooperating in questions ■ the child’s own will in consideration of their age and maturity regarding their child, the Social Welfare Committee can organise level. meetings called “cooperation talks”. Further, the so-called principle of continuity has great practical Also, during a custody proceeding in court, it must be investigated value when the court makes decisions about custody and residence. if it is possible for the parents to reach a settlement out of court or When making custody decisions, the court also must pay attention come to a solution based on mutual understanding. The court must to the parent’s ability to cooperate in questions regarding the child.

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discuss questions regarding conciliation with the parties and, if the parents do not oppose, an external mediator can be appointed. 7.4 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention? 7 Children – International Aspects Sweden is a party to The Hague Convention on the Civil Aspects of International Child Abduction of 1980 and the Brussels II 7.1 Can the custodial parent move to another state/ Regulation. country without the other parent’s consent?

In case of joint custody, one custodial parent can neither make 8 Overview Sweden decisions about the residence of the child nor take the child abroad for vacation without the other custodial parent’s consent. A sole custodial parent, however, is entitled to make decisions concerning 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? the child’s residence or stay without having the decision approved by the other parent. However, where a parent makes decisions that are obviously incompatible with the child’s best interests, their As from 29 January 2019, Regulation (EU) 2016/1103 implementing appropriateness as a custodial parent can be questioned in future enhanced cooperation in the area of jurisdiction, the applicable custody proceedings. law and recognition and enforcement of decisions in matters of matrimonial property regimes shall be applied. Regulation (EU) 2016/1103 applies only to legal proceedings instituted, authentic 7.2 If the court is making a decision on relocation of a instruments drawn up and court settlements approved or concluded child abroad, what factors are taken into account? on or after 29 January 2019, please see article 69 of the regulation. Further, as of July 2017 one or more persons can be given power of Please see question 6.5. The principle of the best interests of the attorney to represent another person in certain matters in the future. child shall be conclusive in every decision regarding children. Such power of attorney comes into effect when the principal, due to Additionally, the court must take into account the child’s need for a mental disorder, illness, injury or similar circumstances, is unable continuity and stability. to take care of the matters referred to in the power of attorney. The Swedish parental code is currently under revision. The latest 7.3 In practice, how rare is it for the custodial parent to be custody reform has been evaluated and also investigated with allowed to relocate internationally/interstate? regards to how the regulations have worked in practice, and whether the aim of the reform – strengthening the child rights perspective – The court will only be involved in cases when parents who have has been achieved. joint custody cannot agree on where a child shall be located and therefore go to court. The frequency of court decisions allowing a relocation of a child obviously depends on what kinds of relocations 8.2 What are some of the areas of family law which you are discussed. think should be looked into in your jurisdiction?

We see a need to look into the regulations regarding the formal procedure of an estate distribution executor and to develop new procedures for dispute resolution, especially for disputes regarding children.

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Torgny Lebenberg Kristin Håkansson Lebenberg Advokatbyrå AB Lebenberg Advokatbyrå AB Grev Turegatan 44 Grev Turegatan 44 SE–114 38 Stockholm SE–114 38 Stockholm Sweden Sweden

Tel: +46 8 661 1414 Tel: +46 8 661 1414 Email: [email protected] Email: [email protected] URL: www.lebenberg.se URL: www.lebenberg.se Sweden After training at court and a short period with the Enforcement Service, Kristin wrote her Master’s thesis on family law with a focus on child Torgny worked at the Legal, Financial and Administrative Services custody cases and also had an internship at The Ombudsman Agency where he specialised in inheritance issues. He started his for Children in Uppsala. She joined Lebenberg Advokatbyrå in own practice in 1980 and since then inheritance law has been his main September 2016 and works in inheritance law as well as the other area of specialisation. areas of private law in which the firm specialises.

Lebenberg Law Offices is a Swedish law firm providing high-quality legal services within the area of private law. The firm is specialised in Swedish and international inheritance and family law and offers consultations, drafting and preparation of legal documents as well as legal representation in litigation. With the clients’ best interests as the top priority, the firm have developed a methodical and cooperative work method. The firm’s gathered experience, high level of service and thorough analysis will ensure that the clients will receive a first-class legal service.

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Switzerland

Etude de Me Anne Reiser Anne Reiser

divorce and with its agreed consequences. They can ask for a non- 1 Divorce motivated judgment in order to expedite the process, which shall then enter into force 10 days after receipt. If they do not do so, they shall 1.1 What are the grounds of jurisdiction for divorce receive a motivated judgment which shall enter into force 31 days proceedings? For example, residence, nationality, after receipt. The timescale depends on the workload of the County domicile, etc.? courts. In Geneva, a non-motivated judgment can be expected about three months after filing. Contested divorce proceedings begin with (a) Domicile of the Defendant; the Plaintiff filing a request and are followed by a first hearing of (b) domicile of the Plaintiff, provided he/she has been domiciled the parties in person, after which the Defendant shall file his/her in Switzerland for the duration of one year or is a Swiss response and counter claims. A new hearing is convened in order citizen; or to establish the parties’ differences, concluded by first pleadings, (c) place of origin of the Swiss party, provided an action after which no new exhibit can be produced unless grounded on new cannot be brought at the domicile of either spouse or cannot unknown facts. Thereafter, proceedings are meant to administer reasonably be required to be brought there. proofs, expert opinions and to hear witnesses as deemed necessary by the judge. Final pleadings take place after this, and judgment is handed down. Depending on the complexity of the case, in Geneva, 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties contested divorce proceedings can last between one year and two have an uncontested divorce? and a half years at the First instance level.

Spouses can file a joint request for divorce at any time. If they 1.5 Can a divorce be finalised without resolving other agree on the consequences of divorce, they can also submit a associated matters? For example, children and comprehensive agreement to the court on the consequences finances. of divorce along with all the necessary documents, and joint applications in respect of their children, the eventual liquidation No: the principle of unity of divorce proceedings enshrined into of the matrimonial regime, the division of Swiss occupational Swiss law provides that all consequences of a divorce should be pension schemes (if any) and spousal support. If they disagree on settled in a sole judgment. Exceptionally, if the liquidation of the principle of divorce, grounds for a divorce are either the fact the matrimonial regime is going to be lengthy and complicated, a that the spouses have lived apart for two years or the irretrievable divorce can be granted before proceedings aiming at said liquidation breakdown of the marriage for compelling reasons for which the are over provided, however, that no spousal support shall be granted Plaintiff is not responsible. (i.e. provided both spouses have sufficient wealth or income not to have to plead for spousal support). This notwithstanding, if there is no power of jurisdiction over children as far as parental responsibility 1.3 In the case of an uncontested divorce, do the parties need to attend court? is concerned (generally because they are lawfully habitually resident abroad), a judgment of divorce resolving all its other consequences, including child maintenance, can be obtained in Switzerland. Yes: the Judge needs to have the parties confirm their agreement Moreover, as of January 1, 2017, divorce proceedings can be stayed with the end of the marriage and with its consequences. According pending a foreign decision on the division of occupational pension to doctrine, such a confirmation could be obtained by other means, schemes or can be finalised before the end of separate proceedings e.g. videoconference, if one of the parties is not be able to attend any regarding the division of same, including foreign pension claims. hearing at all, or through legal representation for justified reasons, but case law is awaited to confirm this. 1.6 Are foreign divorces recognised in your jurisdiction? 1.4 What is the procedure and timescale for a divorce? Generally, yes, provided they are not against Swiss public policy (e.g. because they would be deemed contrary to the principle of In the case of an uncontested divorce, the parties file their joint equality between man and woman or to the child’s best interests). request in court, and are summoned to appear at a single hearing Conditions for recognition are that such judgments have been meant to have them confirm their agreement with the principle of handed down in the State of the domicile or of the habitual residence,

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or in the State of citizenship of one of the spouses, or if said of income and wealth), the minimum standard of living of the debtor judgments are recognised in one of these States. However, a divorce has to be granted to him/her, whereas such a minimum is not granted judgment handed down in a State of which no spouse or only one to the creditor as of now. spouse is a national, shall be recognised in Switzerland provided that (i) at the time of filing, at least one of the spouses was domiciled 2.4 Is the position different between capital and or habitually resident in that State and the Defendant was not maintenance orders? domiciled in Switzerland; (ii) the Defendant spouse has submitted without reservation to the power of jurisdiction of this Foreign As a rule, maintenance orders are made. Capital orders can be court; and (iii) the Defendant spouse has expressly consented to the handed down only when they are justified by peculiar circumstances. recognition of the Foreign judgment in Switzerland. However, with regards to occupational pension schemes, capital

Switzerland orders are the rule. 1.7 Does your jurisdiction allow separation or nullity proceedings? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? Yes, it does. Yes. Please see question 1.3 above. 1.8 Can divorce proceedings be stayed if there are proceedings in another country? 2.6 How long can spousal maintenance orders last and are such orders commonplace? Yes, as an exception, please see question 1.5. When the creditor with no private means can resume a professional 2 Finances on Divorce activity, spousal support is usually ordered for a limited period of time (three to five years), provided the former spouse can finance thereby a decent living standard. If not, depending on the overall 2.1 What financial orders can the court make on divorce? circumstances, spousal support can last until the age of retirement of the debtor, or even longer. When a spouse is the primary caretaker of The court shall liquidate the matrimonial regime including joint common children and has stopped any professional activity to take property rights to real estate or chattels, in order to make a financial care of them, maintenance including the basic needs of the primary award. The court shall then divide between the spouses their rights care taker of said children is owed to the child until such time where to their Swiss occupational pension plans as accumulated during the primary care taker is not prevented from resuming a professional the marriage to make a further financial award, and, after that, it activity anymore because of such a care. If the primary care taker shall examine whether spousal support is needed, usually by way of of the child is married with the other parent, spousal support can be monthly payments, though, exceptionally, by ordering a lump sum owed in addition thereto or instead of the part of child maintenance payment. aimed to provide for his/her basic needs.

2.2 Do matrimonial regimes exist and do they need to be 2.7 Is the concept of matrimonial property recognised in addressed by the court on divorce? Is there a default your jurisdiction? regime? Yes. Please see question 2.2 above. There are three matrimonial regimes in Switzerland. The default regime is the one of participation in acquisitions (which is, really, a 2.8 Do the courts treat foreign nationals differently on regime of separation of assets, with a split by halves of the profit, if divorce, if so, what are the rules on applicable law? any, accumulated during the regime; losses are not split). The other Can the court make orders applying foreign law rather two are the separation of assets (i.e. the marriage has no influence than the law of the jurisdiction? on the status of assets), and the community of assets (all assets, unless otherwise agreed, are deemed jointly owned by the spouses). Since January 1, 2017, only Swiss law applies to divorce and to In cases of divorce, the court needs to liquidate the matrimonial the division of Swiss occupational pension schemes. However, the regime. In doing so, it can apply the foreign law chosen by the court can make orders applying foreign laws to the liquidation of the spouses. matrimonial regime (i.e. the law chosen by the spouses or, failing such a choice of law, the law of the State in which the spouses are 2.3 How does the court decide what orders to make? domiciled at the same time, or failing this, the law of the State in What factors are taken into account? which the spouses were domiciled at the same time most recently before divorce proceedings), and to child support (i.e. the law The court shall follow the (complicated) rules of the Swiss Civil governing their habitual residence). Code on liquidation of the matrimonial regime. Thereafter, it shall split the capital accumulated by the spouses according to the law on 2.9 How is the matrimonial home treated on divorce? occupational pension schemes, and shall consider whether spousal support is needed. The latter, which is meant to be an exception, will If owned jointly, full title of property shall be transferred to the be ordered if a spouse has lost his/her financial autonomy because of spouse who can prove they have a preferential interest in keeping the choices made during married life. The goal to be reached is to it, against just compensation. Otherwise, the exclusive use of the grant both spouses a fair standard of living after divorce. Sometimes matrimonial home and of its furnishings can be granted to the lifelong orders are granted. In cases of insufficient means (in terms

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spouse who needs it most (usually the guardian parent) for a limited period of time, against compensation or not. If the family home is 3.2 Can marital agreements cover a spouse’s financial rented, the lease is transferred to the spouse to whom it would be claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of harder to impose a move. the matrimonial property regime?

2.10 Is the concept of “trusts” recognised in your They can be limited to a choice of law governing the matrimonial jurisdiction? regime and/or addressing the choice of the matrimonial property regime. They are valid, if they cover a spouse’s financial claims on Yes, Switzerland has ratified The 1985 Hague Trust Convention and divorce. However, in order to be enforced they need to be judicially therefore recognises foreign trusts. However, Swiss law does not ratified.

provide for trusts. Switzerland

3.3 What are the procedural requirements for a marital 2.11 Can financial claims be made following a foreign agreement to be enforceable on divorce? divorce in your jurisdiction? If so, what are the grounds? Please see question 3.1 and question 3.2. A marital agreement needs to be filed together with a request asking for its ratification. Yes. Claims for amendments or completion of foreign divorce If, after the first court hearing, both spouses confirm their continuing orders can be made provided the Defendant is domiciled in agreement with its contents, and provided the conditions for said Switzerland, or the Plaintiff has been residing in Switzerland for one ratification are met (see question 3.1), the court hands downan year or is a Swiss citizen, or neither ex-spouses are Swiss residents order ratifying the agreement. This provides for enforcement of the but one of them is Swiss, if litigation cannot be brought at the agreement by a judgment. domicile of one of the spouses or if one cannot reasonably request that it be, or provided one of the spouses has a Swiss occupational pension scheme. Since January 1, 2017, indeed, Swiss courts 4 Cohabitation and the Unmarried Family have an exclusive power of jurisdiction over the division of Swiss occupational pension schemes, and this is a frequent ground for proceedings aiming at completing foreign judgments handed down 4.1 Do cohabitees, which do not have children, have financial claims if the couple separate? What are the after this date. Apart from that, amendment proceedings can be used grounds to make a financial claim? to obtain an increase in child maintenance or a change of a financial award based on new facts. They have no claim, unless they have entered into a joint venture contract. 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.2 What financial orders can a cohabitee obtain?

Mediation is available in many areas, including child maintenance If they have entered into a joint venture contract, they can claim half as of January 1, 2017. According to recent case law, it can be of the net profits accumulated during the joint venture, or whichever ordered by the court if a child’s best interest is at stake. Domestic right is granted to them by contract. or international arbitration can also be used relating to matrimonial regimes and spousal support. 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? 3 Marital Agreements No, there is not.

3.1 Are marital agreements (pre and post marriage) 4.4 Are same-sex couples permitted to marry or enter enforceable? Is the position the same if the agreement other formal relationships in your jurisdiction? is a foreign agreement? They cannot get married. However, they can enter a registered Swiss and foreign marital contracts governing matrimonial property partnership, which has the same effects as marriage, with the are enforceable as such. However, the court needs to check that pre- exception that they cannot have children in common. and post-nuptial agreements are clear, complete, and not obviously unfair, and that the spouses have executed them out of their free will and after careful consideration, before ratifying them. If the 5 Child Maintenance marital agreement also settles the spouses’ occupational pension schemes, the court needs to check that the law has been applied correctly. Pending such a judicial ratification, which is needed for 5.1 What financial claims are available to parents on enforcement, pre- and post-nuptial agreements can be revoked up to behalf of children within or outside of marriage? the first divorce court hearing, according to present case law (which is in the process of changing), if they are filed jointly. Thereafter, The child has a right to financial support, which includes all direct or if they are filed by one party only, they can only be revoked for costs, until financial autonomy is achieved (through education). defect in consent (fundamental error, incorrect intermediation, fraud Since January 1, 2017, basic living costs of the guardian parent and duress). which cannot be met by said parent because of his/her taking care of the child shall be added to this support owed to the child.

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cannot be reached, provided information is granted afterwards. 5.2 How is child maintenance calculated and is it The caretaker can, moreover, make decisions alone regarding administered by the court or an agency? the child’s day-to-day life. His/her duty is to report to the other parent significant facts relating to the child development in general. It is calculated based on actual expenses, in case the child’s family Moreover, parents, with or without parental responsibility, have a income is deemed “favourable”; otherwise there is no fixed method; duty to refrain from any conduct that impairs the child’s relationship it is usually calculated on the basis of the Swiss conference of claim with the other parent and that renders the education of the child recovery and bankruptcy deputies recommendations. Since January more difficult. They also have a right to obtain information about 1, 2017, it shall include the guardian parent’s unmet living costs. the child from schools, doctors, on his state and development, and to Child maintenance agreements need to be ratified by a court in order be consulted before any important decision is taken about the child; to be enforceable. and a right and duty to be in contact with the child and a duty to pay Switzerland for child maintenance even if such contact does not take place. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their 6.2 At what age are children considered adults by the children? For example, can a child seek maintenance court? during university?

Swiss law provides that adulthood is attained at the age of 18. Child support is owed up to 18 years old, or, if the child has not finished his/her studies at that age, until the end of the child’s serious and regular studies, but usually up to a maximum of 25 years of age, 6.3 What is the duration of children orders (up to the age unless the child’s parents are wealthy and the child is not financially of 16 or 18 or otherwise)? autonomous at that age. Any orders relating to children are valid until they are 18 years old or financially autonomous, but usually at the maximum age of 25. 5.4 Can capital or property orders be made to or for the benefit of a child? 6.4 What orders can the court make in relation to Capital orders can be made if the interest of the child justifies it. children? Does the court automatically make orders in relation to child arrangements in the event of divorce?

5.5 Can a child make a financial claim directly against The court considers whether, as an exception, there are their parents? circumstances which would make the keeping of joint parental responsibility contrary to the child’s best interest, then decides on Yes, as soon as he/she is 18 years old. Moreover, a minor child’s (i) the keeping or not of joint parental authority, (ii) childcare, (iii) representative, if appointed by the court, has the right to file such a child contact with the non-guardian parent, and (iv) child support. claim. Since January 1, 2017, the court shall consider the possibility of joint alternate parental childcare whenever possible, if the mother, 6 Children – Parental Responsibility and father or child asks for it, and shall include in child support the living costs of the guardian parent if said costs are not met due to Custody childcare. Child arrangements are automatically investigated by the court. The divorce judge is compelled by the Civil Code and by 6.1 Explain what rights of custody both parents have the Swiss Civil Proceedings Code to make orders which correspond in your jurisdiction whether (a) married, or (b) to the child’s best interest in the event of divorce, as in any other unmarried? case.

Since July 1, 2014, Swiss law no longer distinguishes between 6.5 What factors does the court consider when making the rights of married or unmarried parents with regards to parental orders in relation to children? responsibility, childcare and contact. As a principle, both parents should be granted parental responsibility over the child, which gives The child’s best interest shall be the court’s primary concern. In them the right to decide on: the child’s name and surname (at the age this respect, the court shall investigate parental agreements during of 12, the child’s opinion is to be sought for, in cases of a change the joint family household and shall tend to hand down orders of name or surname); the child’s place of residency; who shall take which would entail as little change as possible in childcare, which care of the child and how; the child’s life, care, education, future, means that the primary caretaker should keep his/her position in the schooling, medical treatments, curricular and extra-curricular future, unless parents agree differently or the child’s best interests activities such as sports, music, etc.; measures meant to safeguard command a change. the child’s physical, mental and moral development; the child’s religious upbringing (until the child is 16); financial support meant to meet the costs related to the child’s upbringing and on who is 6.6 Without court orders, what can parents do going to provide which part of this support; the representation of unilaterally? For example, can they take a child the child when dealing with third parties (school, doctors, public abroad? youth agencies, etc.); the management and use of the child’s assets; and how each parent’s contact with the child is to be carried out. When they are in agreement, parents can do whichever pleases them, According to Swiss law, moreover, while the child is under the including taking a child abroad. When they disagree, what they can care, in fact, of one parent endowed with parental responsibility, do depends on whether they retain joint parental responsibility over such parent can make urgent decisions alone when the other parent the child or not. If they do, the primary caretaker cannot change the child’s habitual residence without the other parent’s agreement, or,

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failing it, without a court order. However, as recent case law pointed January 1, 2017 these claims include financial ones) and appeals on it out, if the child’s habitual residency is changed unilaterally by one his/her behalf. According to case law, as soon as the child is capable of his/her parents in Switzerland, civil law does not provide for a of judgment (i.e. from 12 years old onwards, depending on the child, right of the other parent to ask an order for the return of the child. but usually around the age of 14), the child can also retain his/her own representative (at his/her parents costs).

6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 6.11 What methods of dispute resolution are available to resolve disputes relating to children? No. Since January 1, 2017, the court will have to investigate the possibility of equal division of childcare only if the mother, father or Mediation can be strongly advised or even ordered by the court, as a

child requests it. Otherwise, childcare as provided before separation, measure meant to protect the child (from his/her parents’ conflicts). Switzerland tends to be ordered for the future with a right to contact of the non- In that case, if parents lack means to pay for it, they should obtain guardian parent, which depends on Counties, in Switzerland. In the legal aid to finance it. Moreover, if the parents are unmarried, French part of the country, usual contact tends to be one weekend conciliation proceedings take place regarding child support (and, out of two, an evening and night per week, and half of school since January 1, 2017, regarding childcare, contact and parental vacation. In the North-Eastern part of Switzerland, contact tends responsibility if all matters need to be settled at the same time). to be less than that. 7 Children – International Aspects 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? No, unmarried parents need to plead for child support before the civil judge (with the advantage of going through low cost conciliation Only if the guardian parent has sole parental responsibility and proceedings before entering into adversarial proceedings and provided that the information is imparted to the other parent in due paying court fees based on the amount of requested child support), time and that an agreement is reached to safeguard contact. and before the child protection authority for parental responsibility, childcare and contact matters (low cost as well) unless both matters 7.2 If the court is making a decision on relocation of a need to be addressed at the same time (in which case, the civil judge child abroad, what factors are taken into account? shall have power of jurisdiction over all matters relating to the child); whereas married parents submit all their pleadings relating Basically, the court shall ascertain that this relocation favours to children to the divorce judge, have no conciliation proceedings childcare stability, that contact with the other parent is organised beforehand, and have to immediately pay court fees determined by and child maintenance is ordered/amended in view of different costs the amount of child support requested. at the new place of residency.

6.9 Is a welfare report prepared by an independent 7.3 In practice, how rare is it for the custodial parent to be professional or is the decision taken by the Judge allowed to relocate internationally/interstate? alone? If so, does the child meet the Judge?

Although Swiss law provides that children should be consulted on This is not rare. all matters relating to them, in reality, a decision to ask for a social valuation report depends on Counties’ practices on youth protection. 7.4 How does your jurisdiction deal with abduction In Geneva, a welfare report is asked for when parents are in conflict cases? For example, is your jurisdiction a party to the over what is best for their child upon separation. It is not requested Hague Convention? otherwise. The Swiss Civil Code provides, however, that children should be interviewed in an adequate way upon their parents’ Switzerland cooperates fully with foreign central authorities as separation. When they are young (i.e. up to six years old), their designated by other parties to the Hague Convention 1980 on the interview is usually made by the County youth protection service. civil aspects of international child abduction. After that age, Supreme Court case law provides that they should be interviewed by the judge. In practice, when a child asks to be interviewed, such interview shall take place. When the child does 8 Overview not want to be interviewed, no forced interview shall be ordered. 8.1 In your view, what are the significant developments in 6.10 Is there separate representation for children in your family law in your jurisdiction in the last two years? jurisdiction? Swiss Civil Code amendments, which entered into force on Yes. It is the judge’s task to order such independent representation, January 1, 2017, created an equality of children’s rights to child when the child’s parents disagree on what is best for the child. Such support, irrespective of their parents’ civil status, and a priority of representation is not automatic, however, unless the child requests rights to maintenance of minor children over adults, as well as an it. When it is ordered, the child has a position akin to a party to exclusive power of jurisdiction of Swiss courts related to the split of proceedings: his/her deputy shall be entitled to file claims (and since occupational pension plans in case of divorce.

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should be instituted and should benefit from multidisciplinary help 8.2 What are some of the areas of family law which you (taxes, corporate and contract law matters, pension plans, social think should be looked into in your jurisdiction? and medical help, psychiatric systemic disorders, child protection matters, etc. with local and international experts in these areas), The legislative body should urgently change the Swiss Civil Code in order to provide for coherence and legal cost reductions, and to and Swiss Civil Proceedings Code in order to provide for a coherent ensure international enforcement. set of rules to address new forms of joint households and childcare, which would not be based on the adults’ present or past choices of civil status and on their sexual preferences, but would take into account: (i) the high divorce rate and alternative choices of life in Anne Reiser common; (ii) the fact that children very frequently live with one Etude de Me Anne Reiser Switzerland adult which is not their legal parent; (iii) the people’s need to 11, rue de Candolle not be deprived of any family ties based on their love life or age 1205 Geneva Switzerland or position in the family (as a rule – which suffers exceptions – grandparents, step-parents, concubines and partners have no right to Tel: +41 22 807 33 67 contact with their grandchildren or with the children of their former Email: [email protected] spouse, partner, or concubine, in Switzerland); and (iv) the wish URL: www.reiser-anne.ch of most people for predictability in matters of law enforcement in family matters (a growing number of people would like to execute Member of the Examination Commission for the Geneva Bar Exams, agreements to rule, according to their own values, their – very Lecturer in post master classes at the Geneva University School of often extended – family ties and to organise family support without Advocacy, Speaker at the Annual Seminar of Continuing Education having to resort to judicial proceedings). In addition thereto, in Family Law of the Geneva Bar Association, Teacher of Matrimonial maintenance of a primary caretaker of a child should be granted Law in the Matrimonial Law Specialisation Programme for Lawyers to this caretaker and not to the child, in order to alleviate pressure of The Swiss Bar Association, Adjunct lecturer in master classes on International Divorce and Children’s Rights with the University on (and manipulation of) the child in proceedings. Moreover, of Fribourg, Switzerland, and Author of numerous publications on social help would benefit from becoming a federal matter and Swiss and international family law topics. Anne Reiser studied at the from being unified over the country (it is a matter lodged inthe University of Geneva and passed her Bar Examination in 1984. She power of counties by the Swiss constitution). Finally, family courts founded the firm in 1985 and co-founded the Centre for the Regulation of Family Conflicts, Ichoba, in 2014, with notaries public, tax lawyers, insurance professionals, psychiatrists, family therapists and mediators.

Anne Reiser’s Law firm is a Swiss leading firm practising in the field of Family Law. The services provided by the firm include: ■■ Judicial and extra-judicial practice, both independently and in synergy with other law firms operating in Switzerland and abroad. ■■ The editing of legal documents for cases heard in courts outside Switzerland. ■■ Ad hoc appointments for the private mediation or arbitration of international disputes where conflicting laws require equitable adjudication and creative solutions. ■■ Strategic advice on the anticipation, planning and effective control of disputes with a view to enforcement. ■■ Collaboration with the most competent professionals in their areas of practice, in the client’s best interests. ■■ Formation of teams of professionals and coordinated practice with them, based on the client’s requirements and the specific details of the case, at both the local and international level. ■■ Second opinions on disputes, strategies to adopt and potential outcomes.

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United Arab Emirates

TWS Legal Consultants Nita Maru

1 Divorce 1.6 Are foreign divorces recognised in your jurisdiction?

1.1 What are the grounds of jurisdiction for divorce Yes, they are recognised. proceedings? For example, residence, nationality, domicile, etc.? 1.7 Does your jurisdiction allow separation or nullity proceedings? Whether individuals are resident or have their domicile in the UAE is key in determining jurisdiction for divorce proceedings. As a non- A marriage contract can be nullified where it contravenes Muslim, an individual may file and divorce under their home country public policy or Sharia law. The Personal Status Law provides laws or they may choose to divorce under the UAE’s civil procedures. circumstances under which nullity can occur. A Muslim man does not need to provide grounds for a divorce.

1.8 Can divorce proceedings be stayed if there are 1.2 What are the grounds for a divorce? For example, is proceedings in another country? there a required period of separation, can the parties have an uncontested divorce? The UAE Courts will cease with a case where it is proven that proceedings are concluded with a judgment in another country. The grounds for divorce are regulated by the Personal Status Law. The Court will stay proceedings with immediate effect unless in They can range from failure to pay dowry, mental incapacity, non- contravention with UAE laws or public policy. maintenance to physical or mental abuse, desertion and/or adultery.

1.3 In the case of an uncontested divorce, do the parties 2 Finances on Divorce need to attend court?

2.1 What financial orders can the court make on divorce? Yes. There is a mandatory conciliatory process that must be attended at Court by both parties. An amicable divorce must be settled and The UAE does not provide for sharing of assets, wealth or income concluded by a settlement agreement, executed by a Judge. on divorce. Each party retains assets and property held in their respective names. 1.4 What is the procedure and timescale for a divorce? Financial maintenance orders in respect of children are widely used under the UAE law. Child support covers all expenses and The divorce process requires the opening of a file at Court. The is determined on the financial status of the father, being limited to mandatory conciliatory process begins where both parties are 30% of his income. required to attend to openly discuss their issues and the opportunity to resolve them. Thereafter, where the parties wish to pursue an amicable divorce the process can be concluded in a matter of weeks 2.2 Do matrimonial regimes exist and do they need to be through the execution of a settlement agreement by a Judge and addressed by the court on divorce? Is there a default obtaining the divorce certificate. A contested divorce can take regime? longer; up to 12 months and sometimes even longer. The UAE Sharia-based Personal Status Law covers marriage, divorce and succession. 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. 2.3 How does the court decide what orders to make? What factors are taken into account? There is no law regarding the allocation of assets following the breakdown of a marriage. The overarching principle is that each The UAE Personal Status Law applies and the amount of party retains assets in their respective names.

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maintenance awarded can vary. A husband does not have the right to claim spousal maintenance against the wife. 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the The types of order the Court can make are limited to financial grounds? maintenance in respect of children and spousal support to the wife during the three-month waiting period following divorce. The Court will follow judgment made under foreign law or UAE law. Any financial relief shall comply with UAE public policy. 2.4 Is the position different between capital and maintenance orders? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, The UAE Personal Status Law recognises maintenance orders only. mediation, arbitration?

2.5 If a couple agrees on financial matters, do they need Mediation is available and formally recognised by the Court.

United Arab Emirates to have a court order and attend court?

A couple is required to attend Court to have an agreement executed 3 Marital Agreements to become legally binding. 3.1 Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement 2.6 How long can spousal maintenance orders last and is a foreign agreement? are such orders commonplace?

In the UAE, a husband is not permitted to claim spousal maintenance A marital agreement is not a widely recognised concept in the under any circumstances. UAE. However, the provisions of a pre-nuptial agreement may be enforceable if the applicable home country law of the individual Women can claim compensation where the husband has failed to provide her maintenance and for moral damages as a result of being recognises it as a valid contract and does not conflict with UAE law. divorced. A post-nuptial agreement drawn up to protect one’s assets is Temporary maintenance (Nafaqa) can be awarded to the wife and unenforceable in the UAE as the Court will not execute such an children. agreement to become legally binding.

2.7 Is the concept of matrimonial property recognised in 3.2 Can marital agreements cover a spouse’s financial your jurisdiction? claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? The matrimonial regime in the UAE is separation of property.

Please see above. 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 3.3 What are the procedural requirements for a marital than the law of the jurisdiction? agreement to be enforceable on divorce?

It is permissible under the Personal Status Law for an individual Pre-nuptial agreements are enforceable in the context of to apply their home country laws and petition before the Court. divorce proceedings in the UAE. They will not be considered Where a husband and wife have different nationalities, the UAE law independently. stipulates the law of the husband is to be upheld. Where the law of the parties fails to address an aspect of the divorce 4 Cohabitation and the Unmarried Family procedure, the Court will exercise its discretion to apply UAE law.

4.1 Do cohabitees, which do not have children, have 2.9 How is the matrimonial home treated on divorce? financial claims if the couple separate? What are the grounds to make a financial claim? The matrimonial home will be treated as being held in ownership as per the title deed. Unmarried couples and cohabitees are not recognised under UAE laws. Therefore, cohabitees and civil partners’ rights in real estate 2.10 Is the concept of “trusts” recognised in your or other assets are not protected by law. jurisdiction? 4.2 What financial orders can a cohabitee obtain? Trusts are recognised. However, the UAE is a civil code jurisdiction and does not recognise the concept of a common law trust except Please see above. in the Dubai International Financial Centre (DIFC) free trade zone.

4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)?

Relationships between same-sex couples are illegal.

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4.4 Are same-sex couples permitted to marry or enter 6.2 At what age are children considered adults by the other formal relationships in your jurisdiction? court?

No, this is not permitted. Please see above. The age of majority is 21.

5 Child Maintenance 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)?

5.1 What financial claims are available to parents on The duration is until the age of majority. Please see above. behalf of children within or outside of marriage?

6.4 What orders can the court make in relation to Child maintenance encompasses all types of expenses to care for children? Does the court automatically make orders in a child. There are a number of factors taken into consideration relation to child arrangements in the event of divorce? United Arab Emirates including housing, food, clothes, schooling, medical expenses, home help and flight tickets. The father is solely responsible for The Court will order for a mother to retain physical custody of a these maintenance provisions following divorce. child while under the supervision of the father. A father can apply for custody where a mother is unfit to care for the 5.2 How is child maintenance calculated and is it child for reasons of neglect or insanity. administered by the court or an agency?

Child maintenance is calculated in accordance with the father’s 6.5 What factors does the court consider when making orders in relation to children? wealth and limited to 30% of his income from the previous years’ salary. This is limited to child maintenance.

5.3 For how long is a parent required to pay child maintenance or provide financial support for their 6.6 Without court orders, what can parents do children? For example, can a child seek maintenance unilaterally? For example, can they take a child during university? abroad?

The father is responsible for child maintenance until full-time Parents may decide on visitation and contact arrangements. education is completed for boys and marriage for girls or until the child reaches the age of 21 years old. 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 5.4 Can capital or property orders be made to or for the benefit of a child? No. there is no such presumption.

A father can transfer capital to a child, however, structured child 6.8 Are unmarried parents treated in the same way as maintenance remains applicable. married parents when the court makes orders on separation or divorce?

5.5 Can a child make a financial claim directly against their parents? Cohabitees are not legally recognised in the UAE.

A child may claim against the father for schooling costs, as the father 6.9 Is a welfare report prepared by an independent is responsible for maintenance at least until the child has completed professional or is the decision taken by the Judge their education. alone? If so, does the child meet the Judge?

Discretion lies with the Judge. 6 Children – Parental Responsibility and Custody 6.10 Is there separate representation for children in your jurisdiction? 6.1 Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) No, there is not. unmarried?

6.11 What methods of dispute resolution are available to There is no concept of shared parental responsibility on equal terms resolve disputes relating to children? under Sharia law. The Court will follow the principle of acting in the best interests of the child in accordance with the Personal Status Such methods are available through the Court system. Private law. counselling is also available. The mother is considered the custodian of the child and as having physical custody, while the father is the guardian and financial provider.

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7 Children – International Aspects 8 Overview

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

The custodian must obtain the prior consent of the guardian. The law dealing with family law and children is the Personal Status Law No 28 of 2005. Sharia also emphasises the importance of children and their welfare. To reinforce this principle in 2016 the 7.2 If the court is making a decision on relocation of a child abroad, what factors are taken into account? UAE issued a new law – Federal Law 3 of 2016 concerning the rights of children, also known as Wadeema’s Law – with the aim of protecting the rights of children. The Courts will consider any hardship to the father for visiting the child. The father’s visitation rights are protected under the Personal United Arab Emirates Status Law. 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction?

7.3 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? Raising the age of custody to the age of 18.

The father of the child would not be restricted at Immigration within the UAE and would be able to travel outside of the country. However, the mother of the children would often have to provide a Nita Maru ‘No objection letter’ from the father to Immigration if she wishes to TWS Legal Consultants rd travel outside of the UAE. This is due to the fact the mother would Suite 3307 – 3308, 33 Floor Oaks Liwa Heights Tower, Cluster W not have guardianship rights which includes decisions on whether Jumeirah Lakes Towers the child is able to travel outside of the UAE. Travel bans can be Dubai, P.O. Box 17317 placed on the child’s passport by the father if there is genuine fear United Arab Emirates the mother would abduct the children from the UAE without the Tel: +971 4 448 4284 father’s consent. It is difficult for the wife to place a travel ban on Email: [email protected] the children’s passport to stop the father travelling with the children. URL: www.willsuae.com Nita Maru is a British qualified solicitor and Managing Partner of TWS Legal Consultants, a proactive and dynamic law firm offering private 7.4 How does your jurisdiction deal with abduction client and corporate legal services in Jumeirah Lakes Towers, Dubai. cases? For example, is your jurisdiction a party to the She is also a full member of STEP and holds a full legal consultancy Hague Convention? licence from the Government of Dubai Legal Affairs Department and The Rulers’ Court. She is also registered on the DIFC’s Register of The UAE is not a signatory to the Hague Convention. However, the Legal Practitioners. UAE has its own rules for abduction cases, commonly known as a Over the years, Nita has authored numerous articles and essays travel ban. Where there is fear of abduction by one parent and it is on family and inheritance matters in the UAE and her focus is successfully established before the Court, the Judge has power to on safeguarding families, children, and heirs under succession/ inheritance laws in Sharia jurisdictions. impose a travel ban on the child. Nita and her team are well-known for their personable yet professional approach to resolving ‘real problems faced by real people’. Nita is highly sought after in the UAE for legal assistance for family matters and comes highly recommended by consulates and embassies in the UAE.

TWS Legal Consultants is a leading full-service law firm specialising in private client, matrimonial, family, employment, corporate/commercial and real estate matters. We pride ourselves in offering bespoke legal advice in clear terms and in a timely fashion. We are licensed by The Government of Dubai Legal Affairs Department and Registered with the Dubai International Financial Centre Courts’ Register of Legal Practitioners. The firm is on the British Embassy’s list of recommended law firms in Dubai. As a multicultural firm, the team are well placed to advise clients on international matters regarding their personal and business affairs. Clients can expect us to understand their needs, offer the best solutions and be committed from consultation through to completion. As a well-established firm in Dubai, we continue to build on our strong reputation understanding the need for specialist tailored advice by understanding your objectives and considering issues from your perspective.

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USA – New York

Cohen Rabin Stine Schumann LLP Gretchen Beall Schumann, Esq.

■ Irretrievable breakdown of the marriage for a period of at 1 Divorce least six months, provided that one party states so under oath. (The court will not issue a Judgment of Divorce until the ancillary custodial and economic issues have been resolved.) 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, The parties may be granted an uncontested divorce, either in domicile, etc.? the event of one party’s default (failure to appear and defend) or in the event that neither party is contesting the cause of action The parties must meet jurisdictional requirements, found in New (grounds). Parties often submit uncontested divorce filings York Domestic Relations Law (“NY DRL”) §230, as follows: following a settlement. These documents would include a proposed ■ The marriage occurred in New York, one party has resided Judgment of Divorce; if there is litigation and the parties appear at in New York continuously for at least one year immediately a Preliminary Conference before the court, the parties must indicate prior to the commencement of the action (“commencement”) at that time whether they have resolved grounds for divorce. Even and that party remains a resident as of commencement. when the parties indicate that the grounds for divorce are resolved, ■ The parties have resided in New York as Husband and Wife in most instances the Judgment of Divorce is not granted until the and one party has resided in New York continuously for at conclusion of the proceedings. least one year immediately prior to commencement.

■ The cause of action has arisen in New York and both parties 1.3 In the case of an uncontested divorce, do the parties are residents at commencement or one party has resided in need to attend court? New York continuously for at least one year immediately prior to commencement. (However, see Stancil v. Stancil, 47 Misc.3d 873 [Sup. Ct., N.Y. Co. 2016], where the trial No, provided that the necessary submissions have been filed with court found under the facts presented that a party could not the Supreme Court of the State of New York, in the county where accelerate the two-year residency requirement by alleging the parties are divorcing. one year of residency coupled with no fault grounds.) ■ Either party has resided in New York for a continuous period 1.4 What is the procedure and timescale for a divorce? of two years prior to commencement. There is no mandatory timescale and courts maintain discretion 1.2 What are the grounds for a divorce? For example, is with respect to the length of individual proceedings. Courts in some there a required period of separation, can the parties counties have established timescale guidelines by level of case have an uncontested divorce? complexity.

Grounds for divorce are set forth in NY DRL §170(1)-(7), as follows: 1.5 Can a divorce be finalised without resolving other ■ Cruel and inhuman treatment (the conduct of the defendant associated matters? For example, children and must endanger the physical or mental well-being of the finances. plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant). Upon consent or court approval, and with the exception of NY ■ Abandonment (actual or constructive, for a period of one or DRL §170(7) (irretrievable breakdown), the cause of action may be more years). bifurcated from the ancillary relief, but this is atypical. The Supreme ■ Imprisonment (defendant incarcerated for three or more Court, which hears all divorce actions, may also refer relief (e.g. consecutive years after the marriage). custodial and child support issues) to Family Court for resolution, as ■ Adultery. set forth in New York’s Family Court Act. The New York courts may ■ Living separate and apart for one or more years pursuant to also address limited issues where another jurisdiction is the forum in a written separation agreement which was subscribed by the which one or more requests for ancillary relief must be heard (e.g. parties and acknowledged or proved in the form required for the parties are divorcing in New York and addressing the ancillary a deed to be recorded or pursuant to a decree/judgment of financial matters in New York, but the custody/access matters must separation; the plaintiff must have substantially performed be heard in a different state/country which is the child(ren)’s home all the terms and conditions of the agreement or decree/ judgment. state or which otherwise has jurisdiction over the child(ren)).

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1.6 Are foreign divorces recognised in your jurisdiction? 2.6 How long can spousal maintenance orders last and are such orders commonplace? Yes, provided that they do not violate public policy. Spousal maintenance orders may be interim (pendente lite) or final (following the resolution of an action by settlement or court order). 1.7 Does your jurisdiction allow separation or nullity Spousal maintenance is frequently durational and under certain proceedings? circumstances, lifetime maintenance may be awarded. New York has adopted both Temporary and Post-divorce maintenance guidelines, Yes. Actions may be maintained to void a marriage, for annulment at NY DRL §236B, which provide for a presumptive amount and or separation (NY DRL §§5, 6 and 7, 140 and 200, respectively). deviations from the presumptive amount in circumstances where the presumptive amount would be unjust or inappropriate; in that case,

USA – New York 1.8 Can divorce proceedings be stayed if there are the court will consider various factors contained within the statute. proceedings in another country? In the case of post-divorce maintenance, the statute provides duration guideposts, which are percentage ranges applied to the Yes, they can. length of the marriage. Such orders are commonplace where a party is the dependent 2 Finances on Divorce spouse.

2.7 Is the concept of matrimonial property recognised in 2.1 What financial orders can the court make on divorce? your jurisdiction?

The court may make orders which distribute marital and separate Yes, NY DRL contains a definition of “marital property” at property, award spousal support and/or necessaries, grant child §236B(1)(c). This includes “all property acquired by either or both support and direct that a party maintain disability and/or life spouses during the marriage and before the execution of a separation insurance. The court may also award counsel and expert fees to the agreement or the commencement of a matrimonial action, regardless less monied spouse. of the form in which title is held […]. Marital property shall not include separate property as hereinafter defined”. Separate property 2.2 Do matrimonial regimes exist and do they need to be is defined in §236B(1)(d) as “(1) property acquired before marriage addressed by the court on divorce? Is there a default or property acquired by bequest, devise, or descent, or gift from a regime? party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of New York is an Equitable Distribution state. The definitions separate property, except to the extent that such appreciation is of marital and separate property are contained within NY DRL due in part to the contributions or efforts of the other spouse; (4) §236B(1). Please see question 2.7. property described as separate property by written agreement of the parties which conforms with DRL §236B(3)”.

2.3 How does the court decide what orders to make? What factors are taken into account? 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? The court considers 14 factors set forth in NY DRL §236B(5). Can the court make orders applying foreign law rather than the law of the jurisdiction?

2.4 Is the position different between capital and Foreign nationals are not treated differently upon divorce. New York maintenance orders? law will be applied unless there is a marital agreement containing applicable choice of law provisions which require the application Yes, support orders are calculated pursuant to formulaic guidelines. of foreign law. The court may also consider potential factors, distinct from the distribution factors, which are set forth in the Temporary and Post- divorce maintenance guidelines at NY DRL §236B. 2.9 How is the matrimonial home treated on divorce?

The court has the discretion to distribute the home to either party, 2.5 If a couple agrees on financial matters, do they need to issue an order directing the home to be sold (upon decision after to have a court order and attend court? trial unless the parties consent earlier), either immediately or in the future. If one party retains the marital residence as his or her The couple does not need to attend court, but they will need to distribution, the other party will typically receive a credit for his or obtain a Judgment of Divorce, which is in the form of a court order. her interest in the marital equity. To the extent a party meets his or If the matter is simple, and there is no property distribution or other her burden of proof that he or she invested separate property into relief, the parties may submit an uncontested divorce packet which the marital residence, the separate property may be returned prior to will result in a Judgment of Divorce. For more complex matters, the distribution of the remaining proceeds/equity. parties may submit a written Settlement Agreement or Stipulation of Settlement, acknowledged or proved in the manner required to entitle a deed to be recorded, with uncontested divorce filings, 2.10 Is the concept of “trusts” recognised in your which will likewise result in a Judgment of Divorce. jurisdiction?

The court may consider distributions from a trust in determining a

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party’s income. To the extent that marital assets have been utilised to acquire property held by a trust, that property might, in certain 3.3 What are the procedural requirements for a marital circumstances, be deemed marital property or result in distribution agreement to be enforceable on divorce? credits. For a New York agreement to be enforceable, it must be subscribed by the parties and acknowledged or proved in the form required 2.11 Can financial claims be made following a foreign for a deed to be recorded. These formalities, including the form divorce in your jurisdiction? If so, what are the acknowledgments, are found in New York’s Real Property Law. grounds?

Financial claims can be made following a foreign divorce, to 4 Cohabitation and the Unmarried Family the extent that issues are left open by the foreign judgment for enforcement and/or modification by another jurisdiction or where the laws of the State of New York allow for enforcement and/or 4.1 Do cohabitees, which do not have children, have USA – New York modification of the foreign judgment. financial claims if the couple separate? What are the grounds to make a financial claim?

2.12 What methods of dispute resolution are available to There is no relief available under NY DRL. There may be remedies resolve financial settlement on divorce? E.g. court, available in a civil suit, especially if the parties entered into a mediation, arbitration? cohabitation agreement or otherwise maintain a basis for court intervention (e.g. civil litigation related to the disposition of a Alternative dispute resolution (mediation, arbitration and/or jointly-titled asset). collaborative law) is available and may be entered into voluntarily by the parties, to be conducted by privately retained individuals. Alternative dispute resolution programmes are also available in 4.2 What financial orders can a cohabitee obtain? many county courts and judicial districts, which either mandate party participation or permit voluntary participation by parties This is not applicable in our jurisdiction, with the exception of those and/or their attorneys (e.g. matrimonial mediation programmes, outlined in question 4.1 above. matrimonial neutral evaluation programmes). 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? 3 Marital Agreements It is possible to enter into a domestic partnership, however, domestic 3.1 Are marital agreements (pre and post marriage) partnerships provide limited rights and can be terminated by either enforceable? Is the position the same if the agreement partner at any time by filing a termination statement in person at the is a foreign agreement? city or county office in which the couple registered their partnership. The termination statement simply says that the partnership is Yes, marital agreements are widely enforceable, as set forth in terminated and the partners are no longer partners. If either domestic NY DRL §236B(3): “An agreement of the parties made before or partner gets married to another person, or to each other, the domestic during the marriage, shall be valid and enforceable in a matrimonial partnership is automatically terminated. Domestic partnerships are action if such agreement is in writing, subscribed by the parties and not dissolved by divorce courts. acknowledged or proven in the manner required to entitle a deed to be recorded.” Foreign agreements are largely enforced, provided 4.4 Are same-sex couples permitted to marry or enter that the necessary formalities are met for the agreement to be valid other formal relationships in your jurisdiction? and enforceable. (This may be either compliance with the choice of law contained within the agreement or in the event that there is Yes, they are. no effective choice of law provision pertaining to validity, then the formalities required by the place of execution will generally control.) An agreement’s terms must not violate New York’s public policy; 5 Child Maintenance there are limited 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). 5.1 What financial claims are available to parents on behalf of children within or outside of marriage?

3.2 Can marital agreements cover a spouse’s financial The court may award basic child support to the party who is the claims on divorce, e.g. for maintenance or primary residential custodian of the child(ren). The parties may compensation, or are they limited to the election of the matrimonial property regime? 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 New York Family Court Act §413, identical statutes referred to as the Marital agreements may cover the spouses’ financial obligations “Child Support Standards Act” or “CSSA”. Add-ons may include during the marriage and/or financial claims upon divorce, including, child care, unreimbursed health-related expenses, and at the court’s without limitation, maintenance, distribution and counsel/expert discretion, educational and enrichment costs. A party might also fees. The agreement might outline a process for the valuation and be directed to maintain health insurance for the child(ren) and to distribution of assets with specificity. Marital agreements often provide life insurance to secure child support obligations. The court address estate and other rights upon death of a party. may also award counsel fees to the party seeking support on behalf of the child(ren).

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5.2 How is child maintenance calculated and is it 6 Children – Parental Responsibility and administered by the court or an agency? Custody

Child support is calculated pursuant to a formula. If application 6.1 Explain what rights of custody both parents have of the formula would be unjust and inappropriate, child support is in your jurisdiction whether (a) married, or (b) further adjusted in consideration of factors set forth in the CSSA. unmarried? These factors are commonly known as the “f” factors, in reference to their statutory location, and include: Married and unmarried parents have the same rights to seek custody (1) the financial resources of the custodial and non-custodial of and access to their child(ren). parent, and those of the child; (2) the physical and emotional health of the child and his or her 6.2 At what age are children considered adults by the USA – New York special needs and aptitudes; court? (3) the standard of living the child would have enjoyed had the marriage or household not been dissolved; Although children are not considered emancipated for child support (4) the tax consequences to the parties; purposes until age 21, for custodial purposes, orders regarding (5) the non-monetary contributions that the parents will make custody or access will terminate at age 18. toward the care and well-being of the child; (6) the educational needs of either parent; 6.3 What is the duration of children orders (up to the age (7) a determination that the gross income of one parent is of 16 or 18 or otherwise)? substantially less than the other parent’s gross income; (8) the needs of the children of the non-custodial parent for Please see question 6.2 above. whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to DRL §240(1-b)(b)(5) 6.4 What orders can the court make in relation to (vii)(D), and the financial resources of any person obligated children? Does the court automatically make orders in to support such children, provided, however, that this factor relation to child arrangements in the event of divorce? may apply only if the resources available to support such children are less than the resources available to support the In most circumstances, with the exceptions described in question 1.5 children who are subject to the instant action; above, the divorce court must make a determination as to custody (9) provided that the child is not on public assistance (i) and access. The court can make orders with regard to how child- extraordinary expenses incurred by the non-custodial parent related decisions are made, and each parent’s access, including in exercising visitation, or (ii) expenses incurred by the non- custodial parent in extended visitation provided that the regular holiday, vacation and other access. The court may, in custodial parent’s expenses are substantially reduced as a certain circumstances, establish protocols with regard to the parents’ result thereof; and conduct and communications. (10) any other factors the court determines are relevant in each case. 6.5 What factors does the court consider when making orders in relation to children? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their The court considers the best interests of the child(ren), giving regard children? For example, can a child seek maintenance to the circumstances of the case and the parties. NY DRL §240(1) during university? (a). The court must take into consideration findings of domestic violence and other findings which place a child at substantial risk of Until age 21; however, the parties may agree to extend the age of harm (e.g. if the child is a victim of abuse). emancipation beyond age 21. 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 benefit of a child? abroad?

No, they cannot. Parents have broad discretion and freedom of movement in the absence of court orders, however, a parent who is objecting to the removal of the child(ren) from the jurisdiction may contest the other 5.5 Can a child make a financial claim directly against parent’s removal by seeking court intervention. (Applicable laws their parents? are the federal Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act.) For international Yes, in limited circumstances. Such actions are rare. removals, please see question 7.2 below.

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Court of Appeals articulated “[…] we hold that each relocation 6.7 Is there a presumption of an equal division of time request must be considered on its own merits with due consideration between separating or divorcing parents? of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the No, there is not. best interests of the child. […] in all cases, the courts should be free to consider and give appropriate weight to all of the factors 6.8 Are unmarried parents treated in the same way as that may be relevant to the determination. These factors include, married parents when the court makes orders on but are certainly not limited to each parent’s reasons for seeking separation or divorce? or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the Yes, although for child support purposes, a court might consider move on the quantity and quality of the child’s future contact with whether the parties established a particular standard of living for the the noncustodial parent, the degree to which the custodial parent’s child(ren) within a joint household. and child’s life may be enhanced economically, emotionally and USA – New York educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through 6.9 Is a welfare report prepared by an independent suitable visitation arrangements. In the end, it is for the court to professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.” 87 N.Y.2d 727 (1996). If custody and access issues are disputed, the court will often appoint a forensic evaluator (e.g. a mental health professional) who prepares a report. The court maintains discretion to make a 7.3 In practice, how rare is it for the custodial parent to be determination without such an appointment. The court is not bound allowed to relocate internationally/interstate? by any conclusions or recommendations in the report. Courts may interview the child, if the circumstances warrant. This is While not uncommon, these cases often present complexities and referred to as a Lincoln hearing (or in camera interview), where only are highly fact-specific. The burden may be high. the court, the Attorney for the Child and the child are present. Either party’s attorney may ordinarily submit questions for consideration 7.4 How does your jurisdiction deal with abduction by the court. The transcript of the Lincoln hearing is sealed from cases? For example, is your jurisdiction a party to the access by the parties and their attorneys. Hague Convention?

Yes, the jurisdiction is a party to the Hague Convention. Domestically, 6.10 Is there separate representation for children in your jurisdiction? the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act would apply. Yes, the court may appoint an Attorney for the Child(ren). 8 Overview 6.11 What methods of dispute resolution are available to resolve disputes relating to children? 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? With regards to dispute resolution methods available, please see question 2.12 (with the exception of neutral evaluation, which In August 2016, the Court of Appeals issued a seminal ruling in involves discrete financial issues). Several county courts have the matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), established custody and access mediation programmes. Parents wherein the court established a new pathway to parentage for non- may also retain the services of a parent coordinator, who will assist biological, non-adoptive parents, holding that “…where a petitioner the parties in resolving child-related disputes; the implementation proves by clear and convincing evidence that he or she has agreed of a parent coordinator is sometimes incorporated into the parties’ with the biological parent of the child to conceive and raise the child final custody/access agreement. as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child”. 7 Children – International Aspects 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? One area likely to be addressed is the impact of changing tax laws No, however, there is an exception for emergency circumstances as they relate to divorce (e.g. the loss of alimony deductions in 2019 pursuant to the Uniform Child Custody Jurisdiction and and beyond). Enforcement Act.

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

The court has broad discretion to consider the individual facts and circumstances of each case. In Tropea v. Tropea, the New York

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Gretchen Beall Schumann, Esq. Cohen Rabin Stine Schumann LLP 11 Times Square, 10th Floor New York, NY 10036 USA

Tel: +1 212 512 0814 Email: [email protected] URL: www.crsslaw.com

Gretchen Beall Schumann is a partner of the firm. An experienced attorney with regard to domestic and international matters, she

USA – New York has lectured for the New York State Bar Association on aspects of the Uniform Interstate Family Support Act, for the Women’s Bar Association of the State of New York with regard to matrimonial law and electronic privacy, and for the French American Bar Association with respect to distribution of New York business interests. In 2016 and 2017, Ms. Schumann was listed in Super Lawyers New York- Metro as one of the Top 50 Women Attorneys. Ms. Schumann is a past President of the New York Women’s Bar Association and currently serves as President of the New York Women’s Bar Association Foundation. Ms. Schumann received a J.D. from Cornell Law School in 2001, and A.B. in English from Columbia College, Columbia University, in 1998.

The 11-attorney 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 individualised 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.

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USA – Texas

Fullenweider Wilhite Lauren E. Waddell

ground for divorce of “insupportability” (Tex. Fam. Code § 6.001). 1 Divorce A party may request a divorce on fault-based grounds of cruelty, adultery, felony conviction (imprisonment for at least one year), 1.1 What are the grounds of jurisdiction for divorce abandonment (at least one year), living apart (at least three years), proceedings? For example, residence, nationality, and confinement in a mental hospital (at least three years) (Tex. domicile, etc.? Fam. Code §§ 6.002-6.007). There is no separation requirement. However, there is a 60-day Prior to filing a divorce case, a party must be a domiciliary of waiting period from the date of filing to finalize a divorce case, Texas for the preceding six months and a resident of the county in unless a domestic violence exception exists (Tex. Fam. Code § Texas for the preceding 90-day period (Tex. Fam. Code § 6.301). A 6.702). spouse domiciled in a foreign country may file suit for divorce in the county in Texas in which the domiciliary spouse resides, if the domiciliary spouse has resided in Texas for six months (Tex. Fam. 1.3 In the case of an uncontested divorce, do the parties need to attend court? Code § 6.302).

If the court lacks personal jurisdiction over a non-resident spouse, In an uncontested divorce, at least one party must appear before the the court may grant a legal status divorce, without dividing property, court to announce that the parties have reached an agreement (called after the non-resident spouse receives proper service of process a “prove up”) to dissolve the marriage. (Tex. Fam. Code § 6.308). To divide the parties’ property, the Texas court must have personal jurisdiction over a non-resident spouse. Under the Texas long arm statute, the court has personal jurisdiction 1.4 What is the procedure and timescale for a divorce? over the non-resident spouse if: 1) the petitioner meets residency requirements in Tex. Fam. Code § 6.301; 2) Texas is the last marital In Texas, there is a 60-day waiting period to finalize a divorce, with residence; 3) the divorce is filed within two years of separation; and an exception for instances of family violence (Tex. Fam. Code § 4) the exercise of jurisdiction over the non-resident spouse would 6.702). Most courts will issue a scheduling order, which states the comport with standards of fair play and substantial justice. See Tex. trial date and other deadlines for the case. The timeline to finalize Fam. Code § 6.305. a contested divorce will depend upon the specific court, which For child custody determinations, the Uniform Child Custody generally takes over a year. Jurisdiction & Enforcement Act (UCCJEA) states the requirements to establish jurisdiction over the children issues (Tex. Fam. Code 1.5 Can a divorce be finalised without resolving other Chapter 152). To determine jurisdiction, Texas courts determine the associated matters? For example, children and “home state” of the child, which is the state in which a child lived finances. with a parent or person acting as a parent for at least six consecutive months prior to filing (Tex. Fam. Code §§ 152.102(7)); 152.201. A A divorce may be granted without resolving financial matters or foreign country is treated as if it were a state of the United States for children issues. See question 1.1 above. the purpose of applying the “home state” analysis in Chapter 152 of the Texas Family Code. 1.6 Are foreign divorces recognised in your jurisdiction? In emergency situations, the court may exercise temporary jurisdiction when a child is present in Texas if either: 1) the child Foreign divorces are recognized in Texas on the international has been abandoned; or 2) it is necessary in an emergency to protect principles of comity. the child or a sibling of a child from mistreatment or abuse (Tex. Fam. Code § 152.204(a)). 1.7 Does your jurisdiction allow separation or nullity proceedings? 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties There is no legal separation status. During the pendency of a have an uncontested divorce? divorce, the court has authority to grant Temporary Orders to address immediate issues involving the children and property. Parties may pursue uncontested divorces through the no fault

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The court may grant an annulment in circumstances when a party is: 1) under the age of 18; 2) under the influence of alcohol or narcotics; 2.4 Is the position different between capital and 3) permanently impotent; 4) entering marriage due to fraud, duress, maintenance orders? or force; 5) lacking mental capacity; 6) married to a person who concealed a divorce with a third party; or 7) married within 72 hours During a divorce case, the court has discretion to order temporary of obtaining a marriage license (Tex. Fam. Code §§ 6.102-6.110). spousal support based on the financial circumstances of the parties. After the divorce is final, a court may award spousal maintenance if a party qualifies and proves eligibility. See question 2.6 for 1.8 Can divorce proceedings be stayed if there are requirements for qualifying for spousal maintenance, payment proceedings in another country? amounts, and duration of payments.

A divorce proceeding may be stayed through a verified Motion to USA – Texas Abate, also referred to as a Plea in Abatement. 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court?

2 Finances on Divorce To dissolve a marriage, the court must sign a court order called a “divorce decree”. The terms of the property division, confirmation of separate property, financial obligations, parental rights and duties 2.1 What financial orders can the court make on divorce? may all be included in the divorce decree. At the parties’ election, the parties may execute a contract called an “Agreement Incident The court has authority to divide community property and confirm to Divorce” containing the terms of a property agreement and separate property. The court may order an equitable remedy for financial obligations. An Agreement Incident to Divorce would reimbursement claims, when there has been a contribution made by be referenced in the divorce decree, but the contract does not have one marital estate to another, by awarding a money judgment or to be filed with the court. granting an equitable lien (Tex. Fam. Code §§ 3.402, 3.406). In the event that the parties choose to remain married, the parties The court has authority to order a spouse to pay child support and may execute a post-marital agreement regarding financial matters, medical support. The court may award spousal maintenance, if a which would not require any court order or court appearance. party qualifies under Tex. Fam. Code §§ 8.051-8.055.

2.6 How long can spousal maintenance orders last and 2.2 Do matrimonial regimes exist and do they need to be are such orders commonplace? addressed by the court on divorce? Is there a default regime? During a divorce case, a court commonly awards temporary spousal support and the amount and number of payments are at the court’s Texas is a community property state. There is a presumption that all discretion. property owned by the spouses at the time of divorce is community property (Tex. Fam. Code § 3.003(a)). Community property is After a divorce is granted, a court may award spousal maintenance, property acquired or created during the marriage by either spouse but it is not commonplace. There is a rebuttable presumption that that is not characterized as separate property. spousal maintenance is not warranted unless the spouse seeking maintenance has proven he or she 1) lacks sufficient income to A party may have a claim for separate property which is property provide for minimum needs, or 2) has been unable to develop the acquired: 1) before the marriage; 2) by inheritance; 3) by third-party necessary skills to provide for his or her minimum needs (Tex. Fam. gift; or 4) as a personal injury award, except for loss of earning Code § 8.053). A spouse seeking maintenance based on either the capacity (Tex. Fam. Code § 3.001). spouse’s disability or a child’s disability is not required to prove If a party claims that property is separate property or mixed property, the spouse is exercising diligence in earning a sufficient income or the party must prove the separate property characterization through developing skills to provide for the spouse’s minimum reasonable tracing by a higher burden of proof, which is by clear and convincing needs. evidence (Tex. Fam. Code § 3.003(b)). To be eligible for spousal maintenance, a spouse must prove 1) he or she lacks sufficient property, including the spouse’s separate 2.3 How does the court decide what orders to make? property estate, on a divorce that will not provide for that spouse’s What factors are taken into account? minimum needs, and 2) one of the four statutory bases including 10- year marriage, family violence, disabled spouse, or disabled child The court has discretion to award a disproportionate division of the (Tex. Fam. Code § 8.051). community estate if the court finds that division is a “just and right After a court determines that a spouse is eligible for spousal division”. The court may consider the following non-exclusive maintenance, the court considers the circumstances of the parties factors: length of marriage; nature of property; party who has custody when determining the amount, duration, and manner of payments of children of the marriage; disparity of earning power (education (Tex. Fam. Code § 8.052). However, a court may not order spousal and employability); size of separate property estates; health; age; maintenance that requires the payor to pay more than $5,000 per liquidity of property; potential income from property; fault in the month or 20% of the payor spouse’s income, whichever is less (Tex. breakup of the marriage; a spouse’s tortious conduct; payment Fam. Code § 8.055). of temporary spousal support; expenses to maintain community The duration of the spousal maintenance obligation depends on the property estate during the pendency of the divorce; attorneys’ fees basis of the spousal maintenance award (Tex. Fam. Code § 8.054). and costs; and the tax consequences of the property division. If the award is based on family violence and the parties have been Once a spouse has met the burden to prove separate property by married for less than 10 years, the payments may not exceed five clear and convincing evidence, the court may not divest a party of years. If the award is based on a marriage between 10 years and separate property. 20 years, the payments may not exceed five years. If the award is

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based on a marriage of 20 to 30 years, the payments may not exceed seven years. If the award is based on a marriage of 30 or more years, 3 Marital Agreements the payments may not exceed 10 years. If the award is based on a spouse’s disability or a child’s disability, the payments may continue 3.1 Are marital agreements (pre and post marriage) as long as the disability exists. enforceable? Is the position the same if the agreement Spousal support payments may be withheld through a wage is a foreign agreement? withholding order (Tex. Fam. Code §§ 8.101-8.210). Premarital agreements and post-marital agreements are enforceable, even if executed in a foreign country. 2.7 Is the concept of matrimonial property recognised in your jurisdiction? 3.2 Can marital agreements cover a spouse’s financial USA – Texas Texas is a community property state. See question 2.2. claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Marital agreements may include financial claims, including Can the court make orders applying foreign law rather modification or elimination of spousal maintenance. Marital than the law of the jurisdiction? agreements may vary from the community property regime. Marital agreements may address any of the parties’ rights and obligations, Texas courts do not treat foreign nationals differently on divorce. If as long as they do not violate public policy or a statute imposing the court has jurisdiction over the parties, property, or children, the criminal penalty (Tex. Fam. Code § 4.003). Texas court has authority to proceed with the case. See question 1.1. Texas law will apply in a divorce case filed in Texas, except when a Premarital agreements may not adversely affect child support or valid premarital agreement has a choice of law provision (Tex. Fam. waive Employment Retirement Income Security Act (ERISA) Code § 4.003(a)(7)). See also, question 2.11. benefits.

3.3 What are the procedural requirements for a marital 2.9 How is the matrimonial home treated on divorce? agreement to be enforceable on divorce?

If the marital residence was purchased during the marriage, the Marital Agreements must be: 1) in writing; 2) signed after the parties court has the authority to award the marital residence to either party have the opportunity to receive a full disclosure of their property or order the property to be sold and the sales proceeds divided, as rights and financial obligations; and 3) sworn or acknowledged directed by the court. In the event that the marital residence was (Tex. Fam. Code § 4.006; 4.105). purchased prior to marriage, the property is the separate property of the purchasing spouse and the court has no authority to divest an ownership interest in separate property. 4 Cohabitation and the Unmarried Family A spouse may make a reimbursement claim for community property funds which enhanced a party’s separate property residence. A spouse may also make a reimbursement claim for his or her separate 4.1 Do cohabitees, which do not have children, have financial claims if the couple separate? What are the property funds used to enhance a community property residence. grounds to make a financial claim?

2.10 Is the concept of “trusts” recognised in your Parties may enter into a nonmarital cohabitation agreement. The jurisdiction? only claim for a cohabitee would be a contractual claim (Tex. Fam. Code § 1.108). The court may not divest a person of his or her Yes, it is recognized. separate property. Texas recognizes informal marriages, also referred to as “common 2.11 Can financial claims be made following a foreign law marriage”. For an informal marriage to exist the parties must divorce in your jurisdiction? If so, what are the 1) agree to be married, 2) live together in Texas as spouses and grounds? 3) represent to others in Texas that they are married (also called “holding out”) (Tex. Fam. Code § 2.401). In the event that a party In the event that a foreign court failed to dispose of property subject establishes an informal marriage, the court has the authority to make to division, a Texas court may apply the law of the foreign country any rulings allowed for legally married couples. regarding the undivided property (Tex. Fam. Code § 9.203). In the event that a foreign court failed to dispose of property because it 4.2 What financial orders can a cohabitee obtain? lacked jurisdiction, a Texas court may apply Texas law regarding division of the undivided property (Tex. Fam. Code § 9.204 (b)). There are none.

2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, 4.3 Is there a formal partnership status for cohabitants mediation, arbitration? (for example, civil partnerships, PACS)?

A financial dispute may be resolved through trial, informal No, there is not. settlement agreements between attorneys, mediated settlement agreements, arbitration awards, and collaborative law agreements.

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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, since the U.S. Supreme Court decision in Obergefell v. Hodges, If there are accounts held in the name of a child or for the benefit of same-sex couples are permitted to marry (Obergefell v. Hodges 135 a child, the court may order a party to be the custodian or for both S. Ct. 2584 (2015)). parties to manage the asset.

5 Child Maintenance 5.5 Can a child make a financial claim directly against their parents?

USA – Texas 5.1 What financial claims are available to parents on A child has standing to file a proceeding to adjudicate parentage behalf of children within or outside of marriage? (Tex. Fam. Code § 160.602).

Despite the marital status, a custodial parent is entitled to receive from the non-custodial parent: child support; health insurance 6 Children – Parental Responsibility and coverage for the children; and usually 50% of the uninsured medical Custody expenses for the children. There is no duty to pay child support, health insurance coverage, or the uninsured medical expenses for any children outside of the marriage. 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? There is a presumption that both parents will be named “Joint Managing Conservators” (“JMCs”) (Tex. Fam. Code § 153.131(b)). Child support is based upon a percentage of the non-custodial When the court appoints the parties JMCs, the court will appoint parent’s net resources. There are child support guidelines to calculate one party to have the right to determine the residence of the child child support, which is based upon how many children the non- and the parties sharing decision-making rights. If the court finds custodial parent supports. When a non-custodial parent’s monthly that appointing the parent’s JMCs is not in the best interest of the net resources are $8,550 or less, the amount of child support is child, the court may appoint one parent as the “Sole Managing calculated per the child support guidelines as the percentage of the Conservator” with designated exclusive decisions making rights and non-custodial parent’s monthly net resources as follows: one child the other parent as a “Possessory Conservator” (Tex. Fam. Code §§ = 20%; two children = 25%; three children = 30%; four children = 153.071-153.076; 153.131; 153.132). 35%; five children = 40%; and six or more children = 45% (Tex. Marriage status does not affect a parent’s right of custody. When Fam. Code § 154.125). making a custodial decision, the court cannot consider a parent’s When a non-custodial parent has children who live in more than one marital status (Tex. Fam. Code § 153.003). household, the percentage will be adjusted (decreased) to account for the other children (Tex. Fam. Code § 154.128, § 154.129). 6.2 At what age are children considered adults by the When a non-custodial parent’s monthly net resources are over court? $8,550 per month, the child support calculation will be the guideline child support calculation and then adjusted based upon a child’s Children are considered adults at the age of 18. proven needs that exceed the presumptive amount of child support (Tex. Fam. Code § 154.126). 6.3 What is the duration of children orders (up to the age Texas has an administrative agency, called the Office of the Attorney of 16 or 18 or otherwise)? General, who records, receives, and distributes child support payments. Until the age of 18, with the exception that child support obligations will continue through graduation of high school. 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 6.4 What orders can the court make in relation to during university? children? Does the court automatically make orders in relation to child arrangements in the event of divorce?

The child support obligation continues until the child turns 18 years Yes, in a divorce case, the court will make orders related to the old or is no longer enrolled in high school, whichever is later (Tex. minor children including parental rights and duties, geographic Fam. Code § 154.006). In the event that the child is disabled, the restriction on the child’s residence, possession and access, child court may award child support to continue after the child turns 18 support, medical support, and injunctions. years of age (Tex. Fam. Code §§ 154.302; 154.306). The court has no authority to order a financial obligation to pay for university expenses. The parties may contractually agree to pay for 6.5 What factors does the court consider when making university expenses, but it is not required under Texas law. orders in relation to children?

The standard is the “best interest of the child”. The non-exclusive factors the court may consider when determining the best interest of the child include: 1) the physical, psychological, and emotional

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needs of the child; 2) the physical and emotional danger now and in the future; 3) the stability of the home; 4) the plans for the child; 5) 6.11 What methods of dispute resolution are available to parenting skills; 6) the primary caregiver of the child; 7) the child’s resolve disputes relating to children? preferences; 8) the geographic proximity of the parents; 9) whether the child has siblings, as there is a preference to keep siblings in the Cases involving children may be resolved through mediation, same home; 10) the extent to which the parents promote relationship arbitration, or the collaborative law process. between the child and the other parent; 11) false report of child abuse; 12) international child abduction; 13) parent fitness and 7 Children – International Aspects conduct; 14) drug or alcohol abuse; and 15) sexual conduct, if the child has exposure or access (Tex. Fam. Code §§153.013; 153.134; 153.251(c); 153.501-153.503). 7.1 Can the custodial parent move to another state/ country without the other parent’s consent? USA – Texas 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child To move with a child, the parent must have the right to determine abroad? residence that is not subject to a geographic restriction. It is typical for courts to order a geographical restriction on a child’s residence, When there is no court order, a parent may act unilaterally, including which would restrict a parent from living with the child outside of a traveling abroad with the child. Usually, the airlines require consent specific geographical area. In Texas, it is public policy to assure that to travel acknowledgments, however, this is not a legal requirement. children will have frequent and continuing contact with their parents (Tex. Fam. Code § 153.001 (a)(1)).

6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 7.2 If the court is making a decision on relocation of a child abroad, what factors are taken into account? No, there is no presumption of equal division of time with children. There is a presumption that the visiting parent will have possession In relocation cases, the court considers: 1) the distance between the per a Standard Possession Order, which is the 1st, 3rd, and 5th parties after the relocation; 2) the accessibility and safety of travel weekend, every Thursday night during the school year, extended arrangements; 3) the quality of the relationship between the non- summer possession (30–42 days), and special holiday possession custodial parent and the child; 4) the possibility of depriving the periods. There are different possession schedules for parents who non-custodial parent of regular and meaningful access to the child; reside less than 100 miles from each other and over 100 miles from 5) the impact of the relocation on future contact between the non- each other (Tex. Fam. Code §§ 153.312-153.317). custodial parent and the child; 6) the reason for the relocation; 7) the feasibility of preserving the relationship between the non- custodial parent and the child through suitable visitation; 8) the 6.8 Are unmarried parents treated in the same way as child’s relationship with the non-custodial parent’s family; and 9) married parents when the court makes orders on separation or divorce? the impact of the relocation on the child’s stability.

Yes, parents, whether married or not, have the same legal rights to 7.3 In practice, how rare is it for the custodial parent to be their children. The court is prohibited from considering marital allowed to relocate internationally/interstate? status when making decisions about parental rights and obligations for their children (Tex. Fam. Code § 153.003). It is rare for a court to allow a custodial parent to relocate internationally or to another state. There must be special circumstances to allow this and the non-custodial parent’s involvement with the 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge child will be taken into consideration. In Texas, it is public policy to alone? If so, does the child meet the Judge? assure that children will have frequent and continuing contact with their parents (Tex. Fam. Code § 153.001 (a)(1)). A court may order a social study or a custody evaluation by a mental health professional. A judge must confer with a child when the child 7.4 How does your jurisdiction deal with abduction is 12 years of age or older. When a child is under 12 years of age, cases? For example, is your jurisdiction a party to the this is at the court’s discretion (Tex. Fam. Code § 153.009). Hague Convention?

The United States of America is a signatory to the Hague 6.10 Is there separate representation for children in your jurisdiction? Convention on Civil Aspects of International Child Abduction, which is incorporated by statute in the International Child Abduction Remedies Act (“ICARA”). 22 U.S.C.S. § 9001-9011. A In some cases, courts may appoint an Amicus Attorney, Guardian Ad Hague Convention abduction case may be heard by either a state Litem, or Attorney Ad Litem to represent children. district court or a federal district court.

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8 Overview Lauren E. Waddell Fullenweider Wilhite 515 Post Oak Blvd 8.1 In your view, what are the significant developments in Suite 800 family law in your jurisdiction in the last two years? Houston, Texas, 77027 USA Federal tax legislation that has impacted alimony. Tel: +1 713 624 4100 Email: [email protected] URL: www.fullenweiderwilhite.com 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? Lauren Waddell’s practice focuses exclusively on family law cases USA – Texas including divorce litigation, custody issues, complex property division, Spousal maintenance and child support. marital agreements, modification actions, and enforcement of prior orders. Lauren has served in leadership positions including serving as the President for the Association of Women Attorneys, the President of the Houston Bar Association-Family Law Section, and the President of Texas Women Lawyers. She is a Fellow of the American Academy of Matrimonial Lawyers, the International Academy of Family Law, the Texas Bar Foundation, the Houston Bar Foundation, and the Houston Young Lawyers Foundation. Lauren is licensed to practice law in Texas and before the Southern District of Texas, the Fifth Circuit Court of Appeals, and the U.S. Supreme Court. She is board-certified in Family Law by the Texas Board of Legal Specialization.

See http://www.fullenweiderwilhite.com/.

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