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Family 2020 A practical cross-border insight into

Third Edition

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Arbáizar Abogados Corbett Le Quesne Millar McCall Wylie LLP, Solicitors Ariff Rozhan & Co Diane Sussman Miller du Toit Cloete Inc Asianajotoimisto Juhani Salmenkylä Ky, Fenech & Fenech Advocates Pearson Emerson Meyer Family Lawyers Attorneys at Law FSD Law Group Inc. Peskind Law Firm Attorney Zharov’s Team Fullenweider Wilhite Quinn Legal Borel & Barbey Haraguchi International Law Office Ruth Dayan Law Firm Boulby Weinberg LLP International Academy of Family Lawyers Satrio Law Firm Ceschini & Restignoli (IAFL) TWS Legal Consultants Chia Wong Chambers LLC Kingsley Napley LLP Villard Cornec & Partners Cohen Rabin Stine Schumann LLP Lloyd Platt & Co. Wakefield Quin Limited Concern Dialog Law Firm MEYER-KÖRING Withers ICLG.com International

ISBN 978-1-912509-96-6 ISSN 2398-5615 Comparative Legal Guides Published by glg global legal group 59 Tanner Street London SE1 3PL United Kingdom Family Law 2020 +44 207 367 0720 www.iclg.com Third Edition

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PEFC/16-33-254 www.pefc.org Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents

Expert Chapters

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

7 The Practice of International Family Law Rachael Kelsey & Mia Reich Sjögren, International Academy of Family Lawyers (IAFL)

13 Brexit and Family Law Charlotte Bradley & Stacey Nevin, Kingsley Napley LLP

17 Arbitration in Religious Communities Gary Conway, Lloyd Platt & Co.

Country Q&A Chapters

21 Armenia 121 Japan Concern Dialog Law Firm: Narine Beglaryan & Haraguchi International Law Office: Kaoru Haraguchi Seda Soghomonyan 128 Jersey 28 Australia Corbett Le Quesne: Barbara Corbett & Pearson Emerson Meyer Family Lawyers: Nicholas Le Quesne Sheridan Emerson & Louise Carter 135 Malaysia 38 Bermuda Ariff Rozhan & Co: Ezane Chong Wakefield Quin Limited: Cristen Suess 142 Malta 45 – Ontario Fenech & Fenech Advocates: Robert Thake Boulby Weinberg LLP: Sarah Boulby & Oren Weinberg 147 Millar McCall Wylie LLP, Solicitors: Clare Lenaghan 51 Canada – FSD Law Group Inc.: Pierre-Hugues Fortin & 154 Russia Marie-Hélène Saad Villard Cornec & Partners and Attorney Zharov’s Team: Julie Losson & Anton Zharov 58 & Wales Kingsley Napley LLP: Charlotte Bradley 162 Singapore Chia Wong Chambers LLC: Wong Kai Yun 66 Finland Asianajotoimisto Juhani Salmenkylä Ky, 170 Attorneys at Law: Hilkka Salmenkylä Miller du Toit Cloete Inc: Zenobia du Toit & Sandra Van Staden 73 Diane Sussman: Diane Sussman 178 Spain Arbáizar Abogados: Amparo Arbáizar 81 MEYER-KÖRING: Marie Baronin von Maydell & 186 Nikolaus J. Plitzko Borel & Barbey: Sonia Ryser Hong Kong 87 193 United Arab Emirates Withers: Sharon Ser & Philippa Hewitt TWS Legal Consultants: Nita Maru Indonesia 97 198 USA – Illinois Satrio Law Firm: Andrew I. Sriro Peskind Law Firm: Steven N. Peskind 103 Isle of Man USA – New York Quinn Legal: Louise Byrne & Claire Clampton 204 Cohen Rabin Stine Schumann LLP: 109 Israel Gretchen Beall Schumann Ruth Dayan Law Firm: Ruth Dayan Wolfner & USA – Texas Tali Sivan Lahav 210 Fullenweider Wilhite: Lauren E. Waddell 115 Ceschini & Restignoli: Roberta Ceschini WelcomeXX

From the Publisher

Dear Reader,

Welcome to the third edition of The International Comparative Legal Guide to: Family Law, published by Global Legal Group. This publication, which is also available at www.iclg.com, provides corporate counsel and international practitioners with comprehensive jurisdiction-by-jurisdiction guidance to family and matters around the world. This year, four general chapters cover international marital agreements and family law, the implications of Brexit on family law, as well as arbitration within religious communities. The question and answer chapters, which cover 28 jurisdictions in this edition, provide detailed answers to common questions raised by professionals dealing with family law. As always, this publication has been written by leading family lawyers and industry specialists, to whom the editors and publishers are extremely grateful for their invaluable contributions. Global Legal Group would also like to extend special thanks to contributing editor Charlotte Bradley of Kingsley Napley LLP for her leadership, support and expertise in bringing this project to fruition.

Rory Smith Group Publisher Global Legal Group Welcome

Preface

Dear Reader,

I am honoured to be the contributing editor to the 2020, third 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. With evolving family law around the world, family practitioners must continue to strive to improve their under- standing of international family law; this is essential if they are to properly meet the needs of their clients and their families and this publication will only assist in that endeavour.

Charlotte Bradley Kingsley Napley LLP ChapterXX 1 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 effective pre-nuptial agreement, the court must consider all the and Wales1 has been the rising demand for marital agreements. Section 25 factors). The extent to which the court allows the exclusion of these principles when considering the validity of a Introduction marital agreement will vary in each case. However, a consideration of the couple’s needs and, in particular, the needs of any children With increased globalisation and continued migration to the UK, and will always be at the forefront of a judge’s mind when the agreement following Supreme Court decisions in the early 21st century which is considered, as will the intentions behind the agreement have introduced the principle of equality into financial divorce cases, (particularly if it is a non-English agreement which does not seek to the request for pre-nuptial agreements has risen sharply. The address all the financial provision to be made in the event of a future greatest demand for pre- and post-nuptial agreements appears to still divorce). be from those individuals whereby one or both of the couple have substantial international connections. But what about those couples who already have a marital agreement, prepared in another Approach of the Court to Foreign Marital jurisdiction, but who are divorcing in England? How will an English Agreements Prior to Miller and McFarlane 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 marital case specifically dealing with the enforceability of agreements. The agreements and those limited reported cases tended to be forum case has cemented the English court’s already developing approach conveniens (stay of proceedings) cases, where one party relied on the to uphold domestic and foreign agreements, and has led many more existence of the foreign agreement to encourage the English court clients to seek agreements as well as encouraging the demand for to decline the English divorce petition in favour of the foreign statutory change (e.g. see the Law Commission’s 2014 report on divorce proceedings, rather than cases where the court was being Matrimonial Needs and Agreements at: https://www.gov.uk/ asked to uphold the terms of the agreement. government/publications/matrimonial-property-needs-and-agree- So, in S v S (Divorce: Staying proceedings) [1997] 2 FLR 100, a case ments). Since Radmacher, English case law in relation to the involving a New York pre-marital agreement, Wilson J concluded enforcement of foreign 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. 2 when considering the appropriate financial orders, 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 of the Brussels II regulation which replaced forum conveniens with lis as conduct (s 25 (2) (g)) and the extent to which any agreement will pendens for EU nationals), the judge placed great weight on the ‘separ- be given weight will depend on the facts of the case. The ation de biens’ pre-marriage contract entered into by the French jurisdiction of the English court to order financial provision on couple, when staying the wife’s English divorce petition in favour of divorce cannot be ousted by the parties’ agreement. And, as a the French divorce proceedings. country which practises family law on the basis of forum without Contrast the court’s approach in these cases with the judgment of applying foreign law (unlike many of its European neighbours), once F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, where jurisdiction has been secured, the court will apply jurisdiction in the English court was secured and it was being asked (although, as can be seen from the cases below, in the exercise of its to consider the weight of a German pre-nuptial contract in deter- discretion, the court may take into account the parties’ connections mining the wife’s financial claims. with another country when considering the appropriate financial Thorpe J refused to allow any expert evidence from Germany orders, particularly if there is a foreign marital agreement). declaring ‘in this jurisdiction they [pre-nuptial agreements] must be of very When considering the effects of the pre- or post-marital agree- limited significance. The rights and responsibilities of those whose financial ment, executed in England and Wales or elsewhere in the world, the affairs are regulated by statute cannot be much influenced by contractual terms court will not ignore the established principles set out in English case which were devised for the control and limitation of standards that are intended law, namely the needs of any children and the parties, and the to be of universal application throughout our society’ [page 66]. Compare concept of sharing equally the assets built up during the marriage. this approach to that of the Supreme Court in Radmacher 15 years (see the Court of Appeal decision of Brack v Brack [2018] EWCA later. Civ 2862 reminding practitioners that, even where there is an

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Miller and McFarlane and the Approach to The wife appealed to the Court of Appeal, where the sum was Radmacher reduced to a payment to cover the husband’s debts, a housing fund Marital Agreements Prior to of £2.5 million to be retained by the husband during the children’s The House of Lords’ decisions in Miller v Miller and McFarlane v minority only and capitalised maintenance to cover the husband’s McFarlane [2006] UKHL 24 opened the door to marital agreements needs until the younger child’s 22nd birthday. The Supreme Court becoming more enforceable. Neither of the cases involved the exist- upheld the decision of the Court of Appeal, agreeing that the pre- ence of a pre-marital agreement; however, the House of Lords nuptial agreement should be given considerable weight and the established the principles of equality and sharing and that husband’s claims should be limited. matrimonial property and non-matrimonial property (e.g. pre-marital The facts surrounding the pre-marital agreement were not typical property and inherited property) should be treated differently (some- insofar as: thing which many seeking a pre-nuptial agreement wish to achieve). ■ the case involved an Anglo Saxon ‘exclude everything’ pre- So, what Miller and McFarlane established was a loose and nuptial agreement but from a continental country where it was discretionary ‘community of acquests to assets built up during the prepared by a notary; marriage (with a starting point of a 50/50 division of these assets) ■ in the agreement the husband agreed to his maintenance claims and with the court still bringing in non-matrimonial assets if they being terminated on divorce; are required to meet the parties’ and (particularly) any children’s ■ the husband had received full advice from the notary, which needs. included that he should take independent legal advice, including And, while there is no specific reference to pre-marital agreements from English lawyers (but he declined); in Miller and McFarlane, there was indirect support, with Nicholls LJ ■ the agreement was signed four months before the marriage stating ‘to this non-exhaustive list should be added, as a relevant matter, the when the parties were already living in London; and way the parties organised their financial affairs’ [para 25] and Baroness Hale ■ the husband (rather than the wife) was the financially weaker held that ‘the nature and the source of the property and the way the couple have (with a wife worth multi-millions) but he was found to run their lives may be taken into account in deciding how it should be shared’ have known exactly what he was signing. [para 153]. And, with reference in the judgment to personal Radmacher has undoubtedly changed the advice English family autonomy, which should not be interfered with by the courts, the lawyers give in relation to the enforceability of agreements. While door was firmly left open to future developments in the enforce- previously it was unclear whether an agreement was likely to be ability of marital agreements. enforced, the case has firmly put the burden of challenging the So, in Ella [2007] EWCA Civ 99, the Court of Appeal confirmed agreement on the party who wishes to challenge the terms. In the the judge’s decision to stay the English proceedings, in favour of the frequently quoted words of the main judgment, the court should husband’s Israeli proceedings, with the pre-nuptial agreement (which give effect to a nuptial agreement that is ‘freely entered into by each party had provisions providing that Israeli law should apply) being the with a full appreciation of its implications unless, in the circumstances prevailing, main reason for the stay. it would not be fair to hold the parties to their agreement’ [para 75]. Two cases in the Court of Appeal, Crossley [2007] EWCA Civ 491 While the Supreme Court has made it clear that whether it is fair and Charman [2007] EWCA Civ 503, both referred to the recognition to hold the parties to their agreement ‘will necessarily depend on the facts of marital contracts in other jurisdictions, particularly their civil of the case’ [para 76], in the case of Radmacher, they were undoubtedly European neighbours in the call for reform to enforce marital influenced by the parties’ intentions at the time they signed the contracts. In his judgment in Charman, Sir Mark Potter commented agreement. At [para 68], Lord Phillips said: ‘… if an ante-nuptial agree- at paragraph 124: ‘The difficulty of harmonising our law concerning the ment, or indeed a post-nuptial agreement, is to carry full weight, both the husband property consequences of marriage and divorce and the law of the Civilian and wife must enter into it of their own free will, without undue influence or member states is exacerbated by the fact that our law has so far given little status pressure, and informed of its implications…’ and at [para 69]: ‘What is to pre-nuptial contracts. If, unlike the rest of Europe, the property consequences important is that each party should have all the information that is material to of divorce are to be regulated by the principles of needs, compensation and his or her decision, and that each party should intend that the agreement should sharing, should not the parties to the marriage, or the projected marriage, have govern the financial consequences of the marriage coming to an end.’ at least the opportunity to order their own affairs otherwise by a nuptial contract?’ So, it can be seen that a property regime marriage contract, typical Now, over 12 years later, as the UK approaches Brexit, further in the civil jurisdictions of continental Europe, which may have been harmonisation of family law in Europe is unlikely; however, with the executed with the intention to protect the other spouse from third- movement of people unlikely to be reversed and London still seen party creditors during the marriage, rather than necessarily as the ‘divorce capital of the world’, the demand for agreements is themselves upon divorce, does not conform easily with the type of here to stay. agreement that the Supreme Court intended should be upheld. However, an Anglo-Saxon type agreement, the type entered in the Radmacher and Granatino [2010] UKSC 42 English speaking jurisdictions, such as England or the US (where most states have legislation in relation to marital agree- Radmacher is the only occasion where the Supreme Court has ments), which specifically provides to set out the financial position specifically considered whether to hold the parties to the terms of a in the event of a separation, is much more likely to be enforced, pre-marital agreement. particularly if the needs of the parties and any children have been The facts of Radmacher are unusual and worth setting out. The met. case involved a wealthy German wife with a French husband with

two children born in England. At the wife’s request, the parties had Radmacher entered into a pre-marital contract in Germany, providing for a Case Law Since – the Importance separation of assets and that no party would make claims against the of the Parties’ Intentions other in the event of a divorce. The wife’s assets were all inherited Since the Supreme Court decision of Radmacher, there has been a and at the first hearing her wealth was accepted to be approximately flurry of English divorce (financial remedy) cases where one party £55 million with a substantial interest in family companies producing seeks to rely upon the terms of a foreign marriage contract to limit a significant income. At the first instance, Baron J awarded the the other spouse’s claims. These typically are not comprehensive husband £5.6 million together with child maintenance plus the right pre-nuptial agreements to protect a party’s assets and/or income in to reside in a German property, and in doing so held that the pre- the event of a divorce, but typically ‘off the shelf ’ continental nuptial agreement had the effect of limiting the husband’s award.

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

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jurisdiction other than that in which it is made will, or might, affect the scope the implications of what she was signing when she (immediately of any legal award or remedy which otherwise be available to one of the moving to England) was unaware of the approach on financial parties in the event of a divorce …’ provision upon divorce? The Court of Appeal reminds us that legal So, in considering the weight to be attached to the agreement in advice is ‘desirable’ but not essential – and in this case the trial judge Y v Y, the judge only gave recognition to the principle that the non- had concluded that the wife knew ‘full well’ the effect of the agree- matrimonial property should be excluded from any entitlement and ment. They concluded that it cannot be correct that couples have the wife received 50% of the matrimonial assets. to take the kind of legal advice anticipated by Mostyn J, ‘just in case’ The same weight to non-matrimonial property was given by they move countries and ‘it cannot be right to add a gloss to Mostyn J in the case of SA v PA [2014] EWHC 392 (Fam), a Dutch Radmacher to the effect that such a spouse will be regarded as having marriage contract. The couple had entered into a pre-nuptial agree- lacked the necessary appreciation of the consequence absent legal ment which stated how capital should be divided in the event of advice to the effect that some of the countries, in which they may divorce but like many European agreements (unlike Radmacher), there choose to live during their married life, may operate a discretionary was no reference to maintenance.4 system’ [para 65]. The Court of Appeal further reminds us that Mostyn J held that that the wife believed (or she should be taken Radmacher includes a safety net through the expectation of fairness to have believed) that she was agreeing that any capital which was and the provision of needs. acquired from an external source after the marriage would be kept 2018 saw a second Court of Appeal case, Brack v Brack [2018] by the recipient provided that it had been kept separate. The wife EWCA Civ, dealing with a Swedish couple and an international pre- had freely entered into the agreement with sufficient advice to under- nuptial (three agreements in fact, signed in 2000 in Niagara, Ohio stand its implications. In those circumstances, subject to the critical and Gothenburg where the couple lived). An issue for the Court of question of maintenance, which had not been addressed, it was fair Appeal was whether the maintenance prorogation clause (MPC) was to implement the capital division specified by the agreement (despite valid (under Article 4 of the Maintenance Regulation (EC) No the fact that the parties entered into it the day before the wedding 4/2009). The judge had held that it was but that he retained and the wife was pregnant). jurisdiction in relation to rights in property arising out of the In XW v XH [2017] EWFC 76, the court considered the parties’ marriage which included any sharing claims. However, following election of an Italian separation of goods regime but concluded that previous decisions (Z v Z above and Luckwell v Limata [2014] EWHC it would be unfair to uphold the election as the wife did not fully 502 where the courts had excluded sharing), the judge felt understand or appreciate the implications of entering into the agree- constrained to limit his jurisdiction to only deal with the wife’s needs ment. While the wife understood in basic terms the nature and (which he could not do due to the MPC). In allowing the wife’s effect of the separazione dei beni (separation of goods) regime, she did appeal, the Court of Appeal disagreed with the first instance judge not have any understanding of the circumstances in which its and held the MPC was not valid (so Sweden did not have jurisdiction implementation in a jurisdiction other than Italy might affect the for maintenance) and the judge had also erred in concluding that, if scope of any remedy which would otherwise be available to her in he held that the pre-nuptial agreement was valid, he was constrained the event of divorce. to make an order limited to providing for the needs not met by an In 2018, the Court of Appeal considered the weight of a foreign effective pre-nuptial agreement. pre-marital agreement in the case of Versteegh v Versteegh [2018] In line with the Supreme Court’s respect for autonomy as set out EWCA Civ 1050. This involved a Swedish pre-nuptial agreement in Radmacher v Granatino, the Court of Appeal in Brack v Brack [2018] which the judge, at first instance, had taken into account in awarding EWCA Civ acknowledged that since Radmacher the courts have inter- the wife 23.41% of the business assets but around half of the non- fered with valid pre-nuptial agreements only to the extent necessary business assets (£51.4 million, well in excess of her needs). The wife to ensure that needs which have not been provided for by the agree- appealed the decision seeking a greater share of the business assets ment are satisfied. King LJ recognised that for most cases where the (42.5%), acknowledging there should be a small departure from parties have contracted out of the sharing principle, any claims are equality by the introduction by the husband of non-matrimonial likely to be limited to needs, however ‘Even where there is an effective property. The day before the Swedish wedding in 1993, the parties prenuptial agreement, the court remains under an obligation to take into account had entered into a pre-marital agreement based on a separation of all the factors found in s25(2) MCA 1973, together with a proper consideration property regime. The husband was from a wealthy family and by the of all the circumstances, the first consideration being the welfare of any children. time of the marriage had already inherited shares in family Such an approach may, albeit unusually, lead the court in its search for a fair companies. Immediately after the marriage the parties moved to outcome, to make an order which, contrary to the terms of an agreement, provides London where they brought up their three children. a settlement for the wife in excess of her needs. It should also be recognised that, Following the parties’ separation in 2014, the husband’s position even in a case where the court considers a needs-based approach to be fair, the was that the wife’s financial claims should be limited to those court will as in KA v MA [a 2018 decision of Mostyn J dealing with a non governed by the terms of the pre-marital agreement. This would international prenuptial agreement] retain a degree of latitude when it comes to have meant she would have received assets of £27 million (above deciding on the level of generosity or frugality which should appropriately be her generously assessed needs of £22 million). However, by the time brought to the assessment of those needs.’ of the final hearing he had increased his proposal substantially which But what about the approach to wider, all-encompassing agree- would mean the wife would have £38 million liquid resources and ments more commonly seen in common law jurisdictions such as 23.41% of the business assets. This was largely accepted by the trial England, the US and Australia? Such cases since Radmacher have judge who concluded that the wife had had a full appreciation of the been more limited but, provided the Radmacher test has been met and implications of the agreement when she signed it. This was contrary the intention has been to provide for the parties’ claims in the event to what the wife claimed; that she thought that the agreement only of a divorce (without arguments in relation to duress, etc.), English covered non-marital assets, she had not had legal advice and she had case law supports the fact that those agreements will largely be not even read the agreement before the wedding and only read it for upheld (particularly if they meet the needs of any children and the the first time, following the breakdown of the marriage. The judge carer). In many US states, pre-nuptial agreements have statutory did not accept her evidence and indeed found the wife’s account authority (27 US states have now adopted the Uniform Premarital untruthful. On appeal, the wife’s main argument in terms of the Agreement Act (UPPA)), which is designed to provide that such effect of the pre-marital agreement was that the wife received no agreements are valid and enforceable contracts and to address the legal advice prior to signing, relying on Mostyn J’s judgment in B v S problems of conflicting laws, judgments and uncertainty about (see above). How could she be said to have a full appreciation of enforcement as couples move from state to state). With countries

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all around the world now recognising marital agreements, England For a summary of the best way to ensure that a marital agreement is behind the times in terms of legislative change. will be upheld by an English court, please see the England & Wales chapter also featured in this guide; however, any future children of Protecting Clients in Marital Agreement Cases the marriage remain an overriding consideration and the terms of the agreement (with particular attention on needs) should still result Given that the answer to whether it is fair to hold the parties to the in a ‘fair’ outcome. agreement ‘will necessarily depend on the facts of the case’ (Radmacher, [para As to the future, with the upheaval of Brexit and huge legislative 76]), in any case where a foreign marriage agreement exists, a full change on the horizon, it is unlikely that the Law Commission’s proof of evidence at an early stage can only assist your client. In proposals for ‘qualifying nuptial agreements’ will be high on the taking the background, full details should be taken about the client’s political agenda. And certainly, there will be no further ‘harmon- intentions at the outset, including the circumstances in which the isation’ of family law within Europe. To the contrary, there is agreement was signed, i.e. what did they think they were signing; was currently a huge uncertainty as to the extent to which the UK will it a simple property regime to protect each other against creditors remain within the current European family legislation following a during the marriage or a wider Radmacher-style pre-marital agreement full Brexit (see chapter 3). However, with the UK’s current popu- to protect the parties in the event of a divorce? Did they discuss the lation (for example, some 3.3 million European nationals now live agreement with anyone, either prior to or during the marriage? in the UK), it is clear that individuals, particularly those from other Evidence of others may be crucial (such as in the Court of Appeal countries where agreements are binding, will continue to seek marital case of Versteegh (see above)). When advising European clients agreements to determine the financial provision in the event of before their marriage, who seek to protect their assets in the future, divorce and the English court will continue to develop its under- it goes without saying that they should consider entering into a full standing and recognition of foreign agreements. English-style negotiated pre-nuptial agreement rather than a simple continental-style contract. England does not import foreign law but can export our law,5 so it is worth considering whether to enter into Endnotes the main agreement in England (while considering appropriate 1. References in this article to the law in England and English law clauses in that agreement or a similar agreement abroad). Even are shorthand for England and Wales. though a country may not allow a restriction of maintenance claims 2. See question 2.3 in the England and Wales chapter for a list of in its own country, it may accept a foreign agreement, e.g. from all the Section 25 factors. England, which does and such agreement could be enforceable 3. The House of Lords was the predecessor to the Supreme Court. under the EU Maintenance Regulation. For clients from all over the 4. When considering issues of maintenance, the English court are world, including common law jurisdictions, consider jurisdiction used to extending the meaning to the definition of maintenance clauses carefully (in this regard see the Court of Appeal’s comments as set out in the ECJ case of Van der Boogard v Laumen [1997] 2 at para 58 in Brack v Brack on the importance of clear drafting) as, FLR 399 where maintenance was interpreted as a needs-based currently, the stronger financial party is unlikely to wish to elect award and can be extended to capitalised periodical payments or England and Wales as the future forum for divorce. For those clients housing. who are already married when they come to England, it is worth 5. See the applicable law provisions under the Hague Protocol of considering the limitations of the foreign marriage contract and, the EC Maintenance Regulation No 4/2009, of which the UK where appropriate, suggest they enter into a post-nuptial agreement. has opted out but most of the EU has opted in so other To encourage the enforceability of the agreement in the future, jurisdictions will recognise the maintenance provisions of a UK you will need to show that the parties have entered into the agree- agreement. ment of their own free will. Whether the parties obtained independent legal advice and the level of financial disclosure will also be relevant. Duress or undue pressure could reduce the weight that is given to the agreement and could even negate it completely. As can be seen from the case law above, the Court will look at the parties’ circumstances at the time the agreement was entered into when considering whether the parties understood the implications of the agreement and whether they intended it to be effective.

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

Kingsley Napley LLP Tel: +44 207 814 1200 Knights Quarter Email: [email protected] 14 St John’s Lane URL: www.kingsleynapley.co.uk London EC1M 4AJ United Kingdom

Kingsley Napley is an internationally recognised law firm based in central London. Our wide range of expertise means that we are able to provide our clients with joined-up support in all areas of their business and private lives. The Family team, made of 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 “absolutely top-end”, “a team that has a great breadth of experience across the board and particularly in international cases”, from “a standout firm” and a team that “always fights hard to defend your interests”. Clients have described Kingsley Napley as “an exceptional law firm, with extremely high-quality professionals and a kind and welcoming environment”. www.kingsleynapley.co.uk

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The Practice of International Family Law Rachael Kelsey

International Academy of Family Lawyers (IAFL) Mia Reich Sjögren

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

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

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Enforcement of orders made abroad, whether falling under the of the Convention was interpreted in their jurisdiction. At the time heading of “maintenance” or “property division”, is often a crucial of writing, the judgment has not been released, but you can find out factor. Hague Conventions, European and other legislation have more about the submissions made on behalf of the IAFL at assisted in this as far as maintenance is concerned, but there are still www.IAFL.com. issues with the enforcement of capital orders. It is important to The law in this area is fast moving, and you should be sure to remember that sometimes capital orders which are made to provide review the case law on the relevant Article(s) of the Convention on for the needs of an individual may very well fall under the heading of the INCADAT website (https://www.incadat.com/en). The “maintenance”, even though they are not periodical payments and outcomes are often not as people would anticipate, as there is often can therefore benefit from some of the enforcement provisions that an erroneous assumption that the court will be concerned about the exist. welfare of the child when the issues should not generally have great regard to such matters – which should be for the court of the child’s Child Abduction and Relocation habitual residence to deal with. For example, in the case of Re L (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720, the court In an increasingly globalised world, disputes between parents over returned an 11-year-old child to a country, contrary to her wishes. their children’s country of residence are on the rise. At its most The case concerned an application to return an 11-year-old girl to extreme, this field can involve the unlawful removal of a child to Lithuania. The mother, who had brought the child to the UK, another jurisdiction by one parent. Although removing a child from resisted the application on the basis that the child objected and that the jurisdiction without permission of the other is generally against there was risk of grave physical/psychological harm if she were to the law, domestic courts are inherently unsuited to dealing with such be returned to Lithuania. The Court of Appeal in England and cross-border issues, lacking the ability to have their orders enforced Wales upheld the decision of the lower court that the child should without government involvement. As a result, various international be returned to Lithuania. Although the child in question wished to agreements exist to combat child abduction. It is worth noting that remain in England, the court noted that the issue of the mother’s whilst some countries are not signatories to the 1980 Hague influence weighed heavily on the trial judge’s mind. As such, Convention on Child Abduction (see below), there may be bilateral considering all the circumstances of the case, the child was returned agreements between individual states that deal with this issue (for to Lithuania. example, as between Pakistan and the UK). If the state is not one There are other relevant Hague Conventions, too; for example, of the 101 parties to the 1980 Hague Convention, the solution may the 1996 Hague Convention https://www.hcch.net/en/ have to be found through diplomatic routes as opposed to legal ones. instruments/conventions/full-text/?cid=70-, usually known as the The 1980 Hague Convention on the Civil Aspects of “Protection Convention”. This Convention bolsters the provision International Child Abduction is an international agreement that of the 1980 Convention in some respects and extends provision for seeks to protect children from the harmful effects of abduction and children who move internationally, beyond the child abduction retention across international boundaries by providing a procedure regime; for example, by including provision to allow orders made in to bring about their prompt return. There are procedures to ensure different jurisdictions to be enforced. For example, if a child has the swift return of any children unlawfully removed (or retained) been unlawfully removed and there is an order in favour of the left- from their country of habitual residence. There are various behind parent in their country of habitual residence, the order will conditions that must be met for the 1980 Hague Convention to be enforceable in other jurisdictions. In some cases, this can offer a apply. The Convention is a state-to-state treaty which means that second route to pursue for left-behind parents in a child abduction party states have an obligation to each other to ensure that the scenario. The 1996 Convention applies to children up to the age of Convention is upheld in their domestic law. 18. There are only 52 contracting parties to the 1996 Convention. The jurisprudence on the Convention comes from across the Brussels II also contains provisions relating to child abduction world, and there are significant complexities. In somewhat overly between EU Member States, and these build on and enhance the simplistic terms only, therefore, some of the critical elements are that 1980 and 1996 Hague Convention provision. Brussels II can there- the child in question must be under the age of 16 and must have fore be useful as it contains better provision in a number of respects. been (prior to the removal or retention) habitually resident in the state in respect of which the return application is being made. Moreover, the applicant parent (or in some cases, applicant Private Children Law institution) must have had rights of custody over the child in ques- As parents move from state to state, either with or without their tion. children, various legal issues arise. The most obvious relate to cross- Providing that the application is made within 12 months of the border relocation; the international context also touches upon wrongful removal, the courts of the country where the child has enforcement of orders and jurisdiction. been taken/is being retained are required to order their return forth- i) Leave to Remove (Relocation) with. These courts should in theory deal with the matter within six Many parents choose to pursue international relocation through the weeks. Various defences exist that can prevent a return, such as the courts by an application for leave to remove the children from other parent consenting to the removal or a risk of grave physical or another jurisdiction to “go home”, or to follow a job or to follow a psychological harm if the child is returned. Generally speaking, the new partner or for a lifestyle choice. Regrettably many parents (and 1980 Hague Convention is an effective method of swiftly returning lawyers!) do not realise that it is a criminal offence in many parts of children who have been unlawfully removed from their home the world to remove a child without the appropriate consent, jurisdiction, if an application is made within 12 months. However, generally of every party with parental responsibility, or without an once the child has been absent for over a year, the return process is order of the court. Generally, the need for written consent of all more difficult. In some jurisdictions, courts are able to use domestic those with parental responsibility (or from the court) being required law powers to return a child, even if a return under the Convention before a child can be removed exists in many countries. There are is not made out. In 2019, the IAFL intervened in a case before the significant differences across the world, however, especially in some United Kingdom Supreme Court – “In the matter of NY (A Child)” Sharia-based systems or when it comes to the role of the views of (https://www.supremecourt.uk/cases/uksc-2019-0145.html). the child or young person. Practitioners from 17 different jurisdictions gave information to the In most countries, the welfare of the child is the paramount UK courts about the extent to which their courts would use consideration. Different states determine this in different ways, and domestic, inherent jurisdiction, powers (or not) and how Article 18 there is also considerable variation in the extent to which the court

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will have regard, and give weight, to other factors. For example, Another exception applies where matrimonial proceedings are some states will give fairly significant weight to the desires and ongoing in another jurisdiction. Jurisdiction will be established in welfare of the parent making the application to move (framing that relation to parental responsibility connected with the application if often as impacting on the child). Many other states, however, adopt at least one spouse has parental responsibility for the child and a tougher approach to international location, whilst still char- jurisdiction has been unequivocally accepted by the spouses and all acterising this as coming from a “welfare” approach. For example, holders of parental responsibility, and it is in the best interests of in Germany, a parent can only lawfully remove a child from the the child to do so. This jurisdiction comes to an end when the jurisdiction if the other party consents or if they are granted sole proceedings for divorce/separation come to an end, and final judg- care of the child by the court. This is relatively rare and decided with ment is given in the relevant proceedings. reference to the best interests of the child. Case law in Germany iii) Enforcement has tended to focus on deficiencies in the care of the other parent In terms of enforcing existing orders, in the EU, Brussels II has when granting permission to relocate, resulting in a much stricter provision to ensure that access endures when the parties move approach. There can be significant subtleties from state to state that between Member States. This is by a mechanism called an “access need to be understood before a strategy is adopted. For example, order”. A certificate will be issued by the original judge, certifying within the UK, there have tended to be different outcomes – that all parties (and the child) have had the opportunity to be heard applications for relocation tend to be more successful in England and that the respondent party has had the chance to prepare a and Wales than Scotland, and in the United States you will find a defence. The access judgment will become automatically recognised variety of approaches to a motion for relocation; however, the trend and enforceable in all Member States. The enforcement process will is generally to prohibit. be determined by the Member State. However, it is worth bearing There is no parallel provision to the 1980 Hague Convention on in mind that in some states there will also, concurrently be International Child Abduction with regard to leave to remove jurisdiction to make a fresh application to the new state’s court. In applications. However, this area of law is showing some nascent this sense, access rights are far from guaranteed. There will soon be signs of harmonisation. At the International Judicial Conference on changes to the enforcement regime, which should make it easier still Cross-Border Family Relocation in Washington, D.C. in March 2010, to have recognised and enforced orders from another EU Member this issue was considered. Over 50 judges and experts signed a State – these come from the recast of Brussels II, which is likely to declaration that there should be no presumption either way when come into effect in 2021 or 2022. matters of international relocation come before a court. As above, Outside of the EU, the solution may be to seek a “mirror order” welfare should be the determinative principle. of a foreign judgment in the home jurisdiction, or vice versa. This is Overseas relocation can also engage Articles 6 and 8 of the essentially an order in the same terms as the foreign order. This can European Convention on Human Rights (ECHR) (the right to a fair be useful in international relocation cases, requiring the relocating trial and the right to respect for private and family life, respectively). party to undertake to secure an order relating to access in the new The ECHR requires that states scrutinise and evaluate the parents’ jurisdiction before leave to remove is granted. Again, this is not a plans with reference to the proportionality principle, especially in straightforward area of law, as some states will not make an order light of the links being severed between the child and one parent. before the child is within that court’s jurisdiction and there is no such ii) Jurisdiction thing as a mirror order. For example, in India, the courts will not As would be expected, the primary basis for jurisdiction in most consider mirror orders and will begin every examination afresh. This states is the habitual residence of the child. If habitual residence matter can become particularly complicated in Islamic countries cannot be established, then the state where the child is present will where the matter is complicated by Sharia compliance and the fact likely have jurisdiction. There are some exceptions to these general that many of these countries have not adopted the 1980 Hague rules, but they are rather limited. Most take the form of a lingering Convention. jurisdiction from a previous country of residence and require the iv) Child Support consent of all parties, but some Sharia-based systems do provide for Child support again is a matter of domestic law. The extent to which jurisdiction based upon parentage. child support can be claimed and/or enforced across jurisdictions In the United States, there is a uniform law known as the Uniform varies hugely. In some jurisdictions, a formula is applied, whereas in Jurisdiction and Enforcement Act (UCCJEA), others it is a matter for the courts to determine what amount should generally adopted in most states, which provides that jurisdiction is be paid. where the child has been a resident for six months, with some Should a court order child maintenance, or there be an entitlement exceptions. under the regime in any given state, in respect of the parent outside Beyond this, Brussels II governs jurisdiction between Member of the jurisdiction, it will need to be enforced. There are a number States of the EU, in relation to the allocation, exercise and of international arrangements that exist, including the 2007 Hague restriction/removal of parental responsibility. However, it does not Convention – known as the “Maintenance Convention” – and there cover all issues, with notable exclusions being the establishment of are also a number of reciprocal enforcement of maintenance orders parent-child relationships, , maintenance obligations, trusts (REMOs) arrangements between various countries. There is and succession and the determination of a child’s name. The main provision specific to EU Member States in the Maintenance areas of private children law, such as custody and rights of access, Regulation. These can ensure payment when the paying party lives are expressly included – again, this is because the EU law in the arena outside of the jurisdiction. of family law is directed not at the substantive law (which remains a matter for states themselves), but rather at the PIL provisions as The Hague Conventions between the Member States. These are conventions proceeding from The Hague Conference on As would be expected, in EU Member States, the primary basis Private International Law (HCCH) – a number have already been for jurisdiction is the habitual residence of the child. If habitual touched upon. The Hague Conventions are relevant to international residence cannot be established, then the state where the child is family law in terms of developing both substantive law and present will have jurisdiction. There are some exceptions to this procedure. Although the most well-known convention relates to general rule, but they are rather limited. One exception is when a child abduction – the 1980 Convention – the Conventions also cover child lawfully moves to another jurisdiction within the EU. The state a range of other important areas, many of them procedural. They the child has just left retains jurisdiction for three months for the include the Hague Service Convention 1965, The Hague Evidence purpose of modifying a judgment on access rights.

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Convention 1970, The Hague Trusts Convention 1995 and a number approaches exist across different jurisdictions. Common law of others, some of which have been used as the foundations of EU jurisdictions tend to have more robust disclosure procedures. In instruments that enhance the provision for EU Member States. California, for example, each spouse must fully disclose to the other all material information concerning the existence, characterisation Trusts and Other Financial Vehicles and valuation of all assets. This duty is ongoing, meaning that updating disclosure is required up until each asset has been dealt with The power of the court to interfere with trusts varies hugely. Trusts by the trial judge. Moreover, the onus is on the asset-holder to are essentially a common law concept and often misunderstood, or disclose information; it is not a defence to argue that the other party even mistrusted, by the courts in civil law jurisdictions. Many did not ask the appropriate questions. Monetary sanctions exist if jurisdictions will struggle to deal with assets held in a trust in the disclosure is inadequate. The law in England and Wales is similar, context of financial proceedings on divorce. requiring robust disclosure. Failure to disclose can result in two It is probably in the jurisdiction of England and Wales that the outcomes: if non-disclosure is suspected at the hearing, the court trust is most prevalent. The court there has the power to vary a can (and frequently will) make assumptions as to the withheld “nuptial settlement” as part of financial proceedings (including a information and adjust its order accordingly; or if non-disclosure structure that they define as a “nuptial settlement” drawn under the comes to light after an order has been made, then there is the law of another place). There is no precise definition of a nuptial possibility for the matter to be reheard depending on how material settlement, but case law has drawn a wide net when considering this the non-disclosure was. issue. It is some form of settlement which makes continuing In contrast, in some other jurisdictions disclosure is minimal. This provision between spouses and can be created before or after is particularly true in continental Europe. Many civil law countries marriage. The court should not interfere with the settlement further adopt the “hide and seek” approach. For example, in Austria and than is necessary and must be wary of the impact on third parties. Scotland, there is no obligation on a spouse to disclose their assets. There are many other financial structures that are used commonly They must only do so if the other party makes a specific demand. – for example, there are many partnerships drawn under the law of As such, there is no effective way to guarantee a full and accurate Delaware, to benefit from the legal regime there, where otherwise picture of the assets of both parties. There are “declarations of there is no other Delaware connection. You may well need to get honour” in some jurisdictions and not a lot more; in many civil law advice on the structure in the relevant jurisdiction, as well as jurisdictions the lawyer’s first duty is to the client and not to the considering how your own jurisdiction should deal with it – both in court, which leads to less openness in financial proceedings on the context of the financial provision application, and also when it divorce. Where one is dealing with proceedings, or possible comes to variation and enforcement against the trustees/officers. proceedings, in common law vs. civil law jurisdictions, these Whether or not variation is possible in your jurisdiction, as ever procedural differences may actually tip the balance in deciding where with assets based outside of the jurisdiction, enforcement will always to try to proceed. be an issue. A trust outside the jurisdiction may well also hold assets Accommodation must also be made for the differing court in England and Wales. It may therefore be possible for an English processes across the world. For example, common law jurisdictions court to have recourse to this property if it can be argued that it is tend to adopt an adversarial model, in which each party (or their “available” to one of the parties. advocates) will make representations and examine witnesses in front

of a judge who will then make a decision. In contrast, many civil Procedure law jurisdictions will involve a judge engaging in a fact-finding Even if the substantive differences in the law have been addressed, exercise and questioning the parties directly. the procedural idiosyncrasies of any jurisdiction must also be considered. It is crucial to look beyond the letter of the law to see Summary how family proceedings will actually play out in practice. On a As can be seen, “International Family Law” is not a discrete field of general level, the differences in the substantive law can impact on law, but rather a more nebulous body of knowledge and experience procedure. For example, in Brazil there is provision for “no-fault” that touches upon various aspects of a domestic family law practice. divorce and parties can attend court with their , Many areas of international family law still resemble a patchwork of ID documents and a fee in order to obtain a divorce. In contrast, different approaches, and whilst other areas are embracing harmon- the procedure in England and Wales can take much longer as divorce isation, that is perhaps less the case in family law; certainly in relation requires a justification and a sequence of paperwork to be lodged at to substantive law, if not recognition and enforcement. Therefore, court. Procedural differences also arise in some more discrete areas, it remains crucial, now more than ever, for lawyers to seek specialist such as disclosure, court process and timing. advice from a lawyer who knows the law in their own jurisdiction Disclosure is one element of procedure in financial disputes that and has experience of international family law work. can have a huge bearing on the final outcome. A range of

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Rachael Kelsey is a Scottish lawyer, who works in Edinburgh and London. She is one of only three ranked solicitors in Scotland in the current edition of The Legal 500 and has been recognised for many years as a first tier “Ranked Lawyer” in Chambers & Partners. She was Counsel to the IAFL before becoming Secretary in 2014. Chambers notes that Rachael “is renowned for her skills in complex litigation” whilst The Legal 500 reports that she is “An outstanding lawyer for complex financial issues”, and notes that: “She attracts praise for being ‘phenomenally strong on the law while looking at everything practically and with the client in mind’, and for her ‘boundless energy and superb judgement’.” Rachael provides expert opinions on for courts outwith Scotland and many of her cases have international or intra-UK jurisdictional issues, an area of specialism for which she is particularly well-known.

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

Mia Reich Sjögren was elected to be President of the IAFL in 2018 for a two-year term. She was previously President of the European Chapter of the IAFL from 2008–2010 and has been a Fellow since 1994. She has held multiple roles in the IAFL as well as being a longstanding member of the Swedish Bar Association (since 1984) and the IBA, Family Law Division. Mia has lectured extensively on Swedish Family Law and is hugely experienced in international matters where there is a Swedish element. She practises across a range of family law issues, including: property division/financial provision; divorce; child law (including child custody/ residence/contact, child support, parentage/paternity and relocation/removal from the jurisdiction); and same-sex partnerships. Mia speaks Swedish, English, German and French.

Advokaterna Sverker och Tel: +46 311 74260 / +46 708 114881 Mia Reich Sjögren AB Email: [email protected] Box 2040 URL: www.reichsjogren.com 403 11 Gothenburg Sweden

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 810 fellows, practising in more than 80 different jurisdictions. www.iafl.com

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Brexit and Family Law

Charlotte Bradley

Kingsley Napley LLP Stacey Nevin

Introduction reached with the EU that impacts family law, and updates may be necessary. More than three years have passed since the result of the Brexit referendum and the prospects of a deal remain uncertain. The Divorce United Kingdom now has a new Brexit deadline of 31 October 2019, after several unsuccessful attempts to reach a deal. The risk of a no-deal Brexit looms large and UK practitioners are well At present, all parts of the United Kingdom (England & Wales, advised to prepare for this eventuality. Scotland and Northern Ireland) are signatories to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction New Domestic Legislation and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa’’) The UK government has already taken steps to change its domestic by virtue of being Member States of the European Union. Article law, in readiness for Brexit. Article 288 of the Treaty on the 21 provides for there to be automatic recognition in all Member Functioning of the European Union (the TFEU) requires all States of divorce, or marriage orders, Member States to “adopt regulations, directives, decisions, recommendations with the limited grounds for non-recognition set out in Article 22. and opinions” made by the European Union. Various EU Regulations By virtue of Brussels IIa, we have a harmonised set of rules and Directives are binding on the UK, and directly applicable. The across the European Union on jurisdiction, with a procedure triggering of Article 50 on 29 March 2017 started the, now extended, stipulated in the event that there are competing jurisdictions. Whilst two-year countdown to Brexit. Once the United Kingdom leaves the lis pendens rule is controversial, there is at least a uniform criterion the European Union, it will cease to be a signatory to the TFEU, and for jurisdiction across all Member States, and we know what should will therefore no longer remain subject to Article 288. Without happen in the event two competing jurisdictions are seized by both proactive steps, all aspects of EU law would cease to have force in parties. the United Kingdom; they would simply fall away leaving a legal Post-Brexit, the United Kingdom will cease to be a signatory of vacuum. The UK government needs to fill that vacuum. Brussels IIa and the jurisdiction criterion will cease to apply. The In readiness for Brexit, the English government has released a Brexit SI seeks to adopt the jurisdiction criterion for jurisdiction draft Statutory Instrument (“The Jurisdiction and Judgments (save that joint applications are not currently possible in England and (Family) (Amendment etc.) (EU Exit) Regulations 2019”) (referred Wales), with an additional ground of “sole domicile”. In the event to as the “Brexit SI’’ throughout this chapter), which contains exten- of a no-deal Brexit, from a UK perspective, the lis pendens rule will sive transitional arrangements in the event of Brexit. One end and forum cases will be decided in the same manner as cases amendment has been made to that already (“The Jurisdiction and with non-EU forum disputes, namely on the basis of forum non Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations conveniens. The Brexit SI expressly provides for this. Whilst some 2019 No. 836”), which is discussed further below. As a result of the practitioners may rejoice at the end of the lis pendens rule for UK-EU Brexit SI, practitioners in England and Wales are starting to form a cases (a practice which can lead to arbitrary and unfair decisions), picture of what family law in a post no-deal Brexit world will look the strain that a removal may place on the already stretched UK like, at least in respect of outgoing decisions (i.e. decisions made by courts is a concern. Until test cases come through the courts in the the courts in England and Wales in cases involving one of the post-Brexit era (assuming no deal), it is difficult to say whether the remaining 27 EU Member States). In a similar fashion, the Scottish return to forum non conveniens will see increased court time and cost, parliament has released a draft Statutory Instrument dealing with the as parties examine every connecting factor with the competing position in Scotland following a no-deal Brexit (“The Jurisdiction Member States. Many practitioners fear that it will lead to lengthier and Judgments (Family, Civil Partnership and Marriage (Same Sex trials, as evidence of fact is examined, longer witness statements and Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations therefore, higher costs. In particular for courts dealing with litigants 2019”), although, save for touching upon Brexit issues for Anglo- in person, disputes could become very burdensome both of the Scot cases, the Scottish position is beyond the scope of this chapter. courts and the parties. Whilst nothing is final yet, what is clear from the Brexit SI is that, At present, UK divorces are recognised throughout the European in the event of a no-deal Brexit, there are a number of areas where Union automatically by virtue of Brussels IIa. On Exit Day, this will the position will be different post-Brexit compared to the position cease to apply, and reference will need to be made to the 1970 Hague pre-Brexit, and the need for parallel advice in other jurisdictions will Convention. Presently, however, only 12 of the remaining EU become ever more important. Some (non-exhaustive) examples are Member States are signatories to the 1970 Hague Convention. set out here, which are correct at least at the time of writing (July Whilst local advice should always be taken, it is considered that these 2019). By the time this chapter is published, further amendments 12 Member States are likely to recognise UK divorces. The 15 EU may have been made to the Brexit SI or a deal may have been Member States who are not signatories present more uncertainty,

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although politically, it is difficult to see why those Member States Member States who are contracted states, it will be necessary to check would cease to recognise civil UK divorces, as they have recognised if that Member State has made any reservations or declarations in them for so many years. At the risk of sounding repetitive, however, respect of the 2007 Hague Convention. early local advice, in parallel, will be crucial. A positive change for the United Kingdom in respect of mainten- ance post-Brexit is the amendment to the Brexit SI set out in “The Same-sex marriages Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 No. 836”. As a result of the hard work of Resolution, (in particular, Eleri Jones of the Resolution Brexit Only 14 of the remaining 27 Member States allow same-sex Working Group), England and Wales’ domestic Children Act 1989 will marriage, with seven countries actually banning same-sex marriage deal with jurisdiction for child maintenance claims under Schedule 1 in their constitutions. Only 13 of the 27 remaining Members States of the Children Act 1989 in the same manner as the Maintenance recognise civil partnerships. Currently, under EU law, same-sex Regulation. Unlike the Maintenance Regulation, the Children Act marriages are likely to be recognised. After Exit Day, it is not clear 1989 will apply to worldwide cases, not just intra-EU cases. if same-sex couples will benefit from this protection. From an outgoing perspective (i.e. cases going out of the UK), it is thought that divorce arising from same-sex marriages should be covered by Pensions the 2007 Hague Convention. Civil partnerships, however, do not Disappointingly for English and Welsh practitioners, the Brexit SI appear to be covered. makes no provision similar to Article 7 of the Maintenance Regulation ( forum necessitates), which will impact the ability to seek Maintenance English pension sharing orders after a foreign pension sharing order or agreement. These orders currently occur under Part III of the Matrimonial and Family Proceedings Act 1984, and, for those cases Currently, the United Kingdom applies the “Maintenance where there is no jurisdiction available (because the parties do not Regulation” (Council Regulation (EC) No 4/2009). On Exit Day, the have an ongoing connection to England and Wales, save for the Maintenance Regulation will cease to apply to the UK. As the United English pension), Article 7 provides a route to make that claim. As Kingdom loses the Maintenance Regulation, so too does it lose the there is no similar provision in the Brexit SI, any parties without a sole domicile restriction. Article 3 of the EU Maintenance connection to England (but for an English pension) will be unable Regulation states that EU Member States only have jurisdiction for to make a Part III claim for an English pension sharing order after a maintenance when either party is habitually resident in that country foreign order or agreement. Whilst this will only affect a small or when ancillary to divorce proceedings, provided jurisdiction for number of cases, it is nonetheless a disappointment. For the divorce proceedings is not based exclusively on sole domicile (or practitioners dealing with cases with that scenario, any application sole nationality). This means that for cases where sole domicile is under Part III relying on Article 7 will need to be made before Exit relied on (i.e. when other tests for jurisdiction cannot be satisfied in Day. the UK or any other Member State, or where there are connections with countries outside of the European Union), the United Kingdom Children Proceedings, Including Abduction (as with the other member states) cannot make needs-based mainten- ance awards. This is a deeply unsatisfying position, and an example After Exit Day, the UK will no longer apply the provisions of where it can be said that EU family law overreaches English law. Brussels IIa to children cases, falling back on the 1996 Hague Post-Brexit, this restriction will fall away. However, before UK Convention on Parental Responsibility and Protection of Children practitioners rejoice, this in itself will not be without problems. An (the “1996 Hague Convention”). A number of changes will arise as order based on sole domicile may not be recognised or enforceable a result of this, some examples of which are considered here. in some of the remaining EU Member States, and pleading multiple In losing Brussels IIa, the UK will lose the benefit of Articles grounds (if available) may be necessary. 11(6) to (8) for cases of child abduction, which are not replicated in Post-Brexit, the United Kingdom will apply the 2007 Hague the 1996 Hague Convention. These provisions enable applicants a Convention on the International Recovery of Child Support and second attempt at return proceedings after Hague proceedings have Other Forms of Family Maintenance (the “2007 Hague concluded and will no longer be available to UK-EU cases. The Convention”) to maintenance issues, having now independently logic behind these provisions was to act as a deterrent to would-be ratified it, and it will apply immediately on Exit Day. The 2007 Hague child abductors. Convention does not, however, contain a code of jurisdiction in the Brussels IIa expressly requires expedition of cases in child way the Maintenance Regulation does. Further, the Brexit SI does abduction, with cases to be determined within six weeks, save for in not contain express rules for jurisdiction in respect of maintenance exceptional circumstances. No such provision exists in the 1996 claims. Whilst it replaces the jurisdiction provisions for Brussels IIa, Hague Convention. That being said, it is hoped that there will still it does not do the same for the Maintenance Regulation. Prior to be a willingness amongst the judiciary to deal with such cases swiftly, Brussels IIa, the position was that maintenance jurisdiction would regardless of the jurisdictions in question, as in most cases this is follow divorce jurisdiction. Presumably, in the absence of jurisdiction clearly in the best interests of the child. provision in the Brexit SI, that is the intended position post-Brexit Legal aid is not available for recognition and enforcement of (as in the absence of replacement domestic law we will revert back orders under the 1996 Hague Convention, as it is under Brussels IIa to the pre-Brexit law). How that will be viewed by the remaining EU and, disappointingly, it is understood this disparity will continue after Member States remains to be seen. It will be important (in fact, Exit Day. essential) to consider the jurisdiction rules in any remaining Member The United Kingdom’s exit from the European Union means it State where enforcement might be necessary as early as possible. will not benefit from the enhanced provisions provided in the recast A concern amongst many UK practitioners was, and remains, the of Brussels IIa when they start to apply in 2021, such as: the loss of reciprocity and uniformity for UK-EU cases. Whilst use of complete abolition of exequatur for all decisions in matters of the 2007 Hague Convention deals with that to some extent, as parental responsibility (saving parties time and money whenever a considered above, only 12 of the 27 remaining EU Members States decision needs to circulate from one Member State to another); are signatories to the Convention. For those Member States that are clearer rules on the opportunity for the child to express his/her not, as with non-EU states, it will be necessary to consider that views with the introduction of an obligation to give the child a Member State’s domestic legislation or codes. Even for those genuine and effective opportunity to express his/her views; and the

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harmonisation of certain rules for the enforcement procedure likely to be of limited value; the world has changed dramatically since (Including enabling Article 20 urgent protective measures to be then and families are more international than ever before. Around capable of recognition and enforcement in other EU Member States. 900,000 UK citizens are long-term residents of other EU countries.i This will not assist any UK orders as the recast will not apply to the Likewise, there are estimated to be 3.7 million EU citizens living in United Kingdom.) There is a view that the recast will add real value, the United Kingdom.ii Many of these individuals make up families so it is disappointing that the United Kingdom will not benefit from who are not confined by borders. There is no official data setting these, although it could seek to unilaterally adopt these terms. out how many families in the United Kingdom comprise of couples Should that happen there is, again, a question of reciprocity, as the with different international origins, but most UK family law remaining EU Member States will be under no obligation to apply practitioners would confirm that family law cases here have become these terms to UK-EU cases. However, some aspects of the recast increasingly international, both in respect of the nationalities of the are not reliant on reciprocity, such as the time limit for dealing with individuals, and the location of assets and homes. cases, and such term has a clear benefit to parties and children. Post-Brexit reported cases are going to be very important for In respect of matters of parental responsibility, Article 9 of practitioners, particularly during the first few years after Exit Day, if Brussels IIa provides that, within the first three months following a not in the best interest of clients in terms of emotional and financial child’s move to another Member State, the child’s habitual residence cost. Regrettably, the United Kingdom will no longer have the will remain in the “left behind” state. Whilst this is a small window, benefit of the European Court of Justice, and the assistance offered it gives the “left behind” parent some reassurances that in the event there in interpreting law and practice. At present, there is no of an issue arising within that window, the court of the former proposal for a replacement body. Member State could deal with any issues and modify the order. This provision is not provided for in the 1996 Hague Convention, so as Conclusion matters stand, in the event of a no-deal Brexit, this small but helpful Having now had three years of unsuccessful negotiations, it could window will fall away for any UK-EU cases. be said that the United Kingdom seriously underestimated the scale Currently, English contact orders are automatically recognisable of the task at hand. The negotiations for Brexit are far more and enforceable in Member States, providing the appropriate difficult and wide-reaching than perhaps anybody had contemplated certificate is annexed to the Order. After Exit Day, English contact prior to the referendum. Calls for a revocation of Article 50 are orders will face a two-tier process with contracting states to the 1996 frequently made, but in the current political landscape, it seems Hague Convention; firstly, recognition and secondly, enforcement. unlikely to happen. So far as practitioners are concerned, Brexit is Whilst this is not an absolute bar, it poses the threat of higher costs happening and future-proofing cases to the extent possible, with for litigants and greater delays. Obtaining mirror orders, at the parallel advice, mirror orders and expectation management with earliest opportunity, could alleviate any enforcement concerns, clients is important. Ironically, at a time where we seek to leave the although at greater financial cost to clients. European Union, our relationships with practitioners in Member

States will become ever more important as we move into a new era The Approach of the Remaining EU Member of family law. States On 18 January 2019, the European Commission produced guidance References for Member States, dealing with jurisdiction, recognition and ■ https://www.ons.gov.uk/peoplepopulationandcommunity/ enforcement in civil justice and private children law. Whilst it is populationandmigration/internationalmigration/articles/whatin guidance only, it states that an EU Member State will not give effect formationisthereonbritishmigrantslivingineurope/jan2017. to a UK order made before Exit Day unless the required registration ■ https://www.ons.gov.uk/peoplepopulationandcommunity/ process has been concluded before Exit Day. More generally, unless populationandmigration/internationalmigration/datasets/popul there is overriding EU guidance or agreement in place, the position ationoftheunitedkingdombycountryofbirthandnationality. taken on UK orders and decisions will be down to each individual Member State, as per their national law. The position could differ Endnotes between different Member States and, again, parallel advice in the country in question will be crucial. i. Office of National Statistics report; What information is there on British migrants living in Europe?: January 2017. Anglo–English Issues Arising on Brexit ii. Office of National Statistics; Population of the UK by country of birth and nationality. England & Wales and Scotland, as two independent jurisdictions, do not have complete uniformity in their domestic laws. Whilst any differences post-Brexit are likely to apply in a limited number of cases, for the parties to those cases, the differences are very impor- tant as the two jurisdictions have very different rules on, for example, maintenance provisions to spouses on divorce.

Retraining and Test Cases As matters stand, post-Brexit the practice of UK-based practitioners could change dramatically in some aspects of family law and UK practitioners will need to take the responsibility of ensuring their knowledge and practices are up to date to best serve their clients. Brussels IIa, for example, came into force on 1 August 2004, and has applied from 1 March 2005; almost 15 years ago. That is almost 15 years of case law that has been based on a Regulation that will no longer apply. Reviewing the UK’s case law prior to Brussels IIa is

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

Kingsley Napley LLP Tel: +44 207 814 1200 Knights Quarter Email: [email protected] 14 St John’s Lane URL: www.kingsleynapley.co.uk London EC1M 4AJ United Kingdom

Stacey Nevin is a Senior Associate Solicitor in the Family team at Kingsley Napley. She specialises in all aspects of family law, with a particular focus on cross-border disputes involving jurisdiction races and proceedings in multiple countries, and complex financial issues including offshore trust arrangements. Stacey writes regular articles and has been quoted in the press, offering commentary on landmark cases. She is a member of the Brexit Working Party to the Resolution International Committee and Property, Tax and Pensions Committee, a group of lawyers formed to consider the impact Brexit will have on family legislation in England & Wales. In the legal directory, The Legal 500, Stacey has been described as a lawyer with “client care second to none” and “a detailed knowledge of the law and good judgement when it comes to tactics”.

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

Kingsley Napley is an internationally recognised law firm based in central London. Our wide range of expertise means that we are able to provide our clients with joined-up support in all areas of their business and private lives. The Family team, made of 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 “absolutely top-end”, “a team that has a great breadth of experience across the board and particularly in international cases”, from “a standout firm” and a team that “always fights hard to defend your interests”. Clients have described Kingsley Napley as “an exceptional law firm, with extremely high-quality professionals and a kind and welcoming environment”. www.kingsleynapley.co.uk

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Arbitration in Religious Communities

Lloyd Platt & Co. Gary Conway

Overview Meeting (MIAM) with a mediator who will not only consider medi- ation as a means to resolve their dispute but will also discuss all the Litigation in cases arising from the breakdown of a family relation- other alternative options available for dispute resolution. ship can get expensive quickly when instructing lawyers, particularly Mediation as a forum to resolve disputes may not be appropriate in the case of contested Court proceedings. There is a common in all cases to begin with nor will it resolve disputes in every case even perception that in the end “only the lawyers actually win”. Some when the parties engage in it with the best intentions. Even when parties would instead seek to preserve their family wealth reaching agreement is reached, the parties may still ultimately need legal advice an agreement between themselves or with the assistance of other on the terms of any agreement before the same is binding and it third parties rather than hand over what may be a large chunk of might break down at that point when their input is given. In any case, their marital savings to the lawyers during litigation, or ultimately the Court will have the final say in whether an agreement reached in hand power over to the Court to decide their financial future or the this way is capable of being converted into a legally binding Order arrangements for their children. Of course, resolving matters and the Court’s inherent jurisdiction can never be overridden. amongst the parties exclusively only works in a minority of cases for The approach of advocating alternative dispute resolution more a number of obvious reasons (lack of transparency in providing generally has also been given statutory, as well as judicial, force. The financial disclosure, one or both party(ies) has unrealistic financial Family Procedure Rules 2010 (FPR) incorporates an “overriding demands, lack of what a fair outcome might look like, to name but objective” to ensure the Courts deal with matters fairly, expeditiously a few). and proportionately taking into consideration the complexity of a However a quick, cheap fix can appear an attractive option, case and with the view to saving expense. Under Rule 1.4 the Court particularly in cases involving modest assets where the legal fees may is under an obligation to further the overriding objective which may, eclipse the value of the Matrimonial Pot or indeed when the likely inter alia, empower the Court to encourage the parties to consider outcome of a case is so glaringly obvious (or the range of outcomes ADR if that course appears appropriate. Powers conferred under incredibly narrow) there is precious mileage in debating. Part 3 of the rules enable the Court to adjourn proceedings as part Resolving matters without family lawyers, limiting their involve- of their case management powers if appropriate to enable that ment or limiting the Courts, be that in children or money cases, can, process to take place. if successful, result in an almost immediate resolution removing the uncertainty and emotional strain of litigation with all it entails whilst Arbitration and Religious Communities empowering the parties and allowing them to have control over their financial destiny or over the arrangements involving their children. There can often be an outcome decided which ultimately neither In religious communities, parties can be actively encouraged (or party is happy with if left to the discretion of a Judge who will only volunteer) to resolve matrimonial disputes through religious bodies be provided with a brief overview upon which to make what may be either informally through religious mediation or through a formal a far-reaching determination for the parties involved. process of religious arbitration in preference to invoking the jurisdiction of the UK Courts in the first instance or dealing with Mediation/ADR matters through family lawyers. These options might be appropriate where the parties would There are of course, many options available to the parties to rather their dispute be dealt with in a forum which has a depth of encourage them to reach agreement themselves, to curtail the Court understanding of the particular legal, religious or philosophical process and/or to prevent the parties incurring huge legal fees. principles specific to the parties’ way of life and their communities, Parties are judicially encouraged to resolve disputes themselves whether that be when determining arrangements for the children wherever possible as Thorpe LJ observed in Al-Khatib v Masry arising from separation or the resolution of financial affairs and [2004] EWCA Civ 1353, [2005] 1 FLR 381 “there is no case however related issues. Even when the parties do decide to defer to an alter- conflicted which is not potentially open to successful mediation, even if mediation native forum, the parties simply cannot lawfully oust the jurisdiction has not been attempted or has failed during the trial process”. of the Family Court to resolve disputes arising out of the marriage The most common method is the use of mediation – a process or to do with the welfare of their children Hyman v Hyman [1929] designed to assist the parties to resolve matters themselves with the AC 601 (1929) FLR 342. guidance and expertise of an impartial (and often legally qualified If both parties are content to defer to the religious bodies in an and Resolution approved solicitor/Barrister mediator) who will help advisory or quasi-judicial capacity, knowingly without undue facilitate negotiations and steer the parties towards resolution. For influence or duress, with full knowledge of what doing so may entail, most types of cases and unless exceptions or exemptions apply, this may prove one such suitable alternative to resolving matters parties are required before issuing Court proceedings in the Family through Solicitors and/or through the Family Courts. In a great Court to attend a Mediation Information and Assessment many cases where the parties have reached agreement through the

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use of religious communities informally, through quasi-mediation an (ii) the substance of any dispute is to be dealt with in accordance agreement can either be carried out without the assistance of the with the law of England and Wales only; Court (in the case of children under the no-order principle) or (iii) the Arbitrator must be selected by the parties jointly and must should the parties require a Court Order providing the Court are be a specialist family law practitioner and a member of satisfied that the terms are compatible with family law principles and Chartered Institute of Arbitrators (CIArb) subscribing to the not manifestly unfair, they will likely rubber stamp the agreement codes of conduct and disciplinary ruling that govern it. Their converting it into an order of the Court. That of course applies general duties are governed by Section 33 of the AA, which whether matters are dealt with informally by agreement or through effectively provides for the arbitrator to act fairly and impartially the process of arbitration (considered below). and to adopt procedures which are suitable to the particular case. Difficulties arise when the religious practices, procedures, laws or There are other specific rules that govern their duties to ensure principles are incompatible with those of the Family Court, the process is transparent, fair and consistent with the rendering either the agreement reached or the ultimate arbitration procedures adopted by the Family Courts – by way of example, award/decision manifestly unfair and not an outcome that the UK the requirement to deliver their reasoning in writing to show Courts would have ever decided at the time, nor can subsequently how and why a decision was reached (Art 13.2); and endorse. There can, in certain communities, be enormous pressure (iv) the parties may themselves agree on what aspects are to be placed on one party to defer to some form of religious intervention determined and the timescales amongst other things. such as threats of ex-communication which of itself means that one Challenges to an arbitrational award are limited indeed. Again, by or both of the parties’ consent has been vitiated when agreeing that way of short summary these are contained within Section 67–71 of the religious forum should be deferred to. In other cases, the parties the 1996 Act. A number of these are subject to qualifying may find the religious procedures/tribunals may not be transparent, conditions and time constraints. impartial or just produce an unfair and manifestly absurd outcome. ■ Section 67 allows for a party to challenge the award based on I have personally been involved in one such case where two parties an arbitrator lacking substantive jurisdiction. who were members of the Orthodox Jewish community and had only ■ Section 68 allows for a challenge based on “serious irregularity very modest assets deferred to arbitration through the London Beth affecting the tribunal proceedings or the award”, providing that Din in order to resolve their financial claims arising from divorce. The it caused or will cause substantial injustice and providing that results were disastrous and, in this author’s view, highlight the real risks challenge was made promptly. that may arise when deferring to religious communities to arbitrate in ■ Section 69 allows an appeal on a point of law unless the parties preference to more traditional forms of arbitration under the agree that the right of appeal should be expressly excluded. Institute of Family Law Arbitrators (IFLA) or through other forms Even here, the Court’s leave to appeal on a question of law is of ADR. This case study is considered below. only granted if stringent tests set out in Section 69 (3) (a)–(c) Before reviewing that case in this chapter, it is necessary to set out are passed. the general principles that govern arbitration in family law cases The difficulties in challenging an award have been confirmed in a under the IFLA scheme and historically how the Court would deal number of cases. In the case of S v S [2014] EWHC 7 (Fam), the with foreign arbitration awards outside of the scheme in relation to President Sir James Mumby made clear that where the arbitration both children and financial matters. was governed by English law, it will only be cases which “leapt off the page” where one party would successfully seek to resile from the Background: The IFLA Scheme award or in cases of serious irregularity. That approach was affirmed in DB v DLJ (2016) EWHC 324, which confirmed that arbitration awards would be given a “magnetic By way of general overview, a scheme for arbitration in family law factor” and it would be rare for the Courts to interfere with the cases was developed and finally launched in 2012 by the IFLA. The award save for in exceptional circumstances. basic purpose was to provide parties with an alternative means of resolving a dispute without the attendant cost/delays and uncertainties involved in the Court process whilst effectively Cases outside of the IFLA Arbitration Scheme providing for the parties to retain some degree of control over the process. It will not be duplicated here but a useful explanation of In the case of AI vs MT [2013] EWCH 100 (Fam), the Court the scheme together with the merits can be found in two articles considered the approach taken to the settlement of children and produced by Sir Peter Singer at [2012] Fam Law 1353 and 1496. financial issues after the breakdown of a marriage where the parties The scheme operates subject to and under the provisions of Part who were orthodox Jews deferred to rabbinical arbitration through 1 of the Arbitration Act 1996 (AA) and is governed by three basic the Beth Din tribunal based in New York to resolve disputes arising principles as set out in Section 1 of the AA namely to (a) obtain a from the breakdown of their marriage. By way of brief summary fair resolution of disputes by means of an impartial tribunal avoiding (the facts do not terribly matter), the father (Canadian) and the expense and delay, (b) allow the parties to have some autonomy to mother (British) in the first instance sought approval from the Family agree how the disputes are resolved providing it is in the public Court to refer the disputes to the Beth Din in the first place and interest, and (c) establish that the Court should not intervene except thereafter some two years later, to convert the arbitration outcome, as provided for within the Act. which by then related to children matters, largely into a binding Court The operation of the scheme will only be considered by way of Order. In that particular case, LJ Baker presiding over the case general application here. It is important to note that unlike most carefully considered the process that the Beth Din had undertaken forms of religious arbitration often conducted through religious concluding that the process was fair and principles underpinning the tribunals: same were consistent and compatible with the welfare and para- (i) the IFLA scheme does not regulate on disputes relating to mountcy principles upon which the Family Court would have children/parenting (although as of 1st July 2018 there is a otherwise been determining the case in addition to endorsing the separate Family Law Arbitration Children’s scheme); overriding objective encouraging parties to agree matters themselves providing it was just/fair to do so given all the circumstances. The

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arbitration decision was converted into a Mirror Order of the Family ■ The law of the UK was not applied during the arbitration Court once the Get (Jewish divorce) was provided. hearing (or even referenced once during the hearing). Whilst this may seem far-reaching (in the sense that, on the face ■ He had absolutely no say in how the process was to be dealt with of things, it demonstrates the Court may endorse other forms of or what issues would be determined. arbitration), the following must be bourn in mind that limit its ■ There was no process of mutual financial disclosure which general application to other cases: would have otherwise occurred. 1. Neither party sought to resile from the decision/award. ■ The award sought to oust the jurisdiction of the Family Court. 2. The decision was limited to child-related issues. ■ The arbitrator was known to the wife and had communicated 3. LJ Baker made clear this was facts-specific. with the husband throughout. 4. Noting that the Family Court would retain jurisdiction in relation These factors of themselves cause for extreme concern even to children matters which could never be revoked. before the outcome was reached and would constitute substantive grounds to challenge the award. Case Study Then came the hearing. During the course of the arbitration hearing, the wife sought that the husband pay £80,000 by way of a lump sum, representing some There have been absolutely no reported cases since which deal with 16× the husband’s total net worth of £5,000. As part of her case, foreign arbitration awards in circumstances: (a) that dealt she argued that all financial contributions she made towards the predominantly with the resolution of the finances; and (b) where family economy during the marriage, since they were not evidenced either party sought to challenge a decision made by a foreign as being gifted under religious law (specifically Radbaz 16th Century religious arbitrator. Posek no. 1041), were loans and needed to be repaid post-separ- And that is where my own experience ties in. ation. She also relied on a ruling whereby women who maintained I acted for a husband who was an observant Jew living in North themselves during the marriage could, as of right, require a husband London in connection with matters arising from his divorce. The to reimburse them for marital expenditure unless there was evidence parties had been married for some seven years and had one child that the wife intended to forgo those funds (Bseus Shmuel with whom care was shared. With respect to children matters, the (commentary on Even Hoezer), para 29). parties had already been through two final hearings before the The wife had prepared a spreadsheet of all such payments she Family Court (and have since had a third final hearing) in what was made during the marriage towards the family economy from her own and remains an intractable contact dispute. The parties had been savings which included grocery bills and the like. Astonishingly, the close to agreeing a financial settlement through solicitors prior to arbitrator ruled that the husband was to repay the wife £80,000 less Children Act proceedings taking place some years ago and before sums that the wife earnt during the marriage which belonged to the the parties’ relationship deteriorated somewhat, (they were circa husband in accordance with the religious principle of “Maaseh £2,000 apart). There remained virtually no assets – no family home Yodeho”. In any case, the husband was required to pay a lump sum and negligible savings on both sides of less than £5,000. The of some £45,000, an outcome which could never have been reached husband’s income was around £40,000 gross a year and the wife’s by the Family Court. slightly less. Both parties were being funded by wealthy parents. Armed with the arbitration award, the wife applied to the High Financial matters remained unresolved for some years whilst Court under the notice to show cause procedure to enforce the children matters became the focal point. Some years following award and the husband applied in Form A to invoke the family law’s separation and against legal advice, the husband entered a form of jurisdiction and defending the claims. The stakes were high. If the religious arbitration through the London Beth Din known as a Din award was enforced it would have the effect of bankrupting the Torah and agreed to arbitrate through a Rabbi chosen by his ex-wife husband who had absolutely no means to pay for the award from his to resolve the residual financial claims of both parties. Prior to own resources. signing the arbitration agreement, he received a series of emails from Eventually, the case was set to be heard at the High Court for the arbitrator over the course of 12 months informing him “if he directions. Both legal teams prepared for what could have been a did not agree to deal with this matter through the Rabbis there seminal case – setting out how the Courts were to approach religious would be serious consequences”. Later indirect threats were made arbitrational awards in finances cases in the UK beyond the scope by community members (allegedly on behalf of more senior Rabbis) of AI vs MT (see above), which was limited in scope. This did not that his membership of his synagogue would be terminated and he happen (and the author apologises for the anti-climax) since the may also lose burial rights if he did not consent to religious parties settled at the foot of the door; for both parties, they deeply arbitration. Fearful that he would be ousted from the community or regretted signing up to the process of religious arbitration. have certain “religious” sanctions imposed upon him if he did not Nonetheless, the facts of that case are a further warning to those submit to religious arbitration, he duly signed a “catch all” arbitration who seek to turn to religious communities to resolve disputes arising agreement which provided for “all disputes and differences from separation; to do so may have unintended and adverse between him and his ex-wife be determined by the Beth Din in consequences, the very opposite of the quick fix parties might be accordance with rules and customs of the Beth Din and according hoping for. Above all, in every case – whether the process of to the principles of halachah and/or general principles of arbitration has been conducted fairly in accordance with UK law and employed by the Beth Din” and he agreed to “accept and perform the parties are content to follow it, or whether the polar opposite the award which shall be final and binding”. Unlike arbitration applies – the Court will always retain jurisdiction and be the ultimate under the IFLA: watchdog to make appropriate rulings to ensure fairness is achieved. ■ He was given absolutely no choice over the arbitrator that presided. ■ The arbitration agreement did not confirm that he had taken legal advice over the contents.

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Gary Conway is an Associate Solicitor at Lloyd Platt & Co., a niche matrimonial firm. He was born in London and educated at Highgate School. He graduated from Liverpool University in 2003 with a B.A. in History and subsequently undertook the GDL and LPC course in London receiving a commendation in the former and distinction in the latter. Gary has banked 10 years of experience working for a City law firm in London, specialising in criminal defence work mainly involving complex frauds and regularly appearing as an advocate in Criminal Courts all over London. In 2013 he transferred to Lloyd Platt & Co. and has been exclusively practising all aspects of family law ever since. Gary deals with clients from all walks of life on a wide range of issues but regularly acts for high-net-worth clients in relation to their financial affairs arising from separation, many of whom are in the public eye. He is known and widely credited for his robust, no-nonsense style and his ability to really get to the heart of the case and formulate a “winning” strategy leaving no stone unturned. Clients find him to be compassionate, approachable and determined.

Lloyd Platt & Co. Tel: +44 208 343 2998 Third Floor, Elscot House Fax: +44 208 343 4950 Arcadia Avenue Email: [email protected] London URL: www.divorcesolicitors.com N3 2JU

Lloyd Platt & Co. is one of the UK’s leading niche family and divorce firms. several ground-breaking cases. The firm worked closely with the Blue Cross Established in 1992, the firm offers a wide range of services in the divorce and Animal Charity to create the world’s first Pet-Nuptial Agreement, a contractual matrimonial law practice areas. The firm regularly comments on high-profile deed that specifies how pets can be dealt with generally on the break-up of a divorce cases, as well as the latest industry developments for media around relationship and which is utilised worldwide. the world. www.divorcesolicitors.com 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 grand- parents. The firm specialises in children disputes, divorce, cohabitation and financial settlements, particularly in the high-net-worth arena, and has been involved in

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Armenia Armenia

Narine Beglaryan

Concern Dialog Law Firm Seda Soghomonyan

1 Divorce and confirmation from the foreign state that the marriage was made and is valid therein. The divorce may be realised by judicial procedure if: 1.1 What are the grounds of jurisdiction for divorce ■ there is no agreement to the divorce by one of the spouses; ■ despite the absence of reservations against divorce, one of the proceedings? For example, residence, nationality, domicile, spouses avoids the divorce’s realisation in the CSRD; or etc.? ■ the spouses wish to divorce by judicial procedure by mutual consent. According to the general rules, the citizens of Armenia (Armenian In practice, no court requires proof of the aforementioned nationals) are entitled to divorce proceedings in the Armenian conditions for acceptance of a claim on divorce to the hearings. If jurisdiction, including if the marriage is under foreign jurisdiction. the claim is accepted in the hearings, the court is entitled to provide Should at least one of the spouses be a citizen of the Republic of spouses a three-month period for reconciliation. Armenia, the divorce case may be initiated and resolved in an Disputes related to the divorce may be presented before the court Armenian court. together with the divorce claim and heard and resolved in the scope Cases on the divorce of citizens of Armenia and foreign citizens of one court case. or stateless persons, where the spouses reside in the Republic of No Armenian authorities are entitled to consider the grounds of Armenia, are exclusively under the jurisdiction of courts of the divorce. Republic of Armenia. Under Article 346 (6) of the Civil Procedural Code (the “Code”), 1.3 In the case of an uncontested divorce, do the parties the foreign judicial act about divorce is recognised in Armenia based need to attend court and is it possible to have a “private” on an Armenian court decision without international or bilateral treaties or reciprocity. Based on the treaties, the foreign court divorce, i.e. without any court involvement? decision about divorce may be recognised in Armenia without special proceedings as well. As mentioned in question 1.2, the divorce can be done via out-of- judicial procedures; it should be added that information from the 1.2 What are the grounds for a divorce? For example, is CSRD is personal data which can be provided only based on the data subject’s explicit consent. Thus, out-of-judicial divorce is a “private” there a required period of separation, can the parties have an divorce without any court involvement. uncontested divorce? Should the court hear a case related to the participants’ privacy, the sessions may be closed-door if the parties request this of the court. There are two ways to divorce in the Republic of Armenia. According to the general procedural rules defined in the Code, the If there is mutual consent of the spouses, the divorce is realised parties’ presence in the court hearings is not mandatory and can be “out-of-judicially”, i.e. in the Civic Status Registration Departments provided through a representative. It is important to note that the of the Ministry of Justice of Armenia (hereinafter the “CSRD”) court shall leave the claim (including divorce claim) without (Article 15 of the Family Code of Republic of Armenia (hereinafter consideration at any stage if the notified claimant or representative the “Family Code”). The spouses should mutually apply for divorce fails to appear at two consecutive court sessions and has not filed a and after the expiration of the defined period (at least one month motion to postpone the examination of the case or on resolving the but no more than three months) and confirmation of their intention case in the claimant’s absence, provided that the respondent has not by handing over the second application for registration of divorce, filed a motion on proceeding with the examination of the case. In the divorce will be registered. cases other than those presented in this chapter, any case may be The CSRD shall register the divorce based on the application of heard in the absence of any party if the latter is notified properly. one spouse if the second spouse is recognised as missing or incapable by the court or is convicted to imprisonment for a period 1.4 What is the procedure and timescale for a divorce? of no less than three years. Disputes other than divorce itself may be subject to settlement by the court even if the divorce proceeding took place in the CSRD. The procedure and timescale for out-of-judicial divorce is presented It should be noted that the divorce can be made via the CSRD if in question 1.2. the marriage is registered in Armenia or, in case based on an inter- The procedure for judicial divorce is as follows: national or bilateral treaty of the CSRD, is entitled to official inquiry ■ presenting the claim on divorce before the first instance court; ■ accepting the claim to the hearings;

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■ the hearing sessions and decision-making; and ■ a foreign state court has accepted the divorce claim for examin- ■ appeal to the Appeal Civil Court and afterwards, the Cassation ation; and Court (at the discretion of the parties). ■ a foreign state court has delivered a judgment with respect to the If the claim presented is only about the divorce, the timescale for divorce case. divorce in court is from six to nine months; if there are other claims The mandatory condition for Armenian courts to leave the claim presented along with the divorce, the case may be completed in two without consideration is that a dispute should be between the same to three years. persons, on the same subject matter and on the same factual grounds. 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. 2 Finances on Divorce

Please see question 1.2. 2.1 What financial orders can the court make on divorce?

1.6 Are foreign divorces recognised in your jurisdiction? If Armenian law allows the following claims to be brought together so, what are the procedural requirements, if any? with the divorce claim before the court: ■ child(ren) custody claim (with which parent the child should According to Article 145 of the Family Code: live); ■ divorces between Armenian nationals and foreign nationals or ■ claim on for child(ren); stateless persons concluded out of the territory of Armenia are ■ common property distribution claim; and valid in Armenia in case of consular legalisation; and ■ spousal support (alimony from the ex-spouse) claim if the ■ divorces between foreign citizens concluded out of the territory spouse is entitled on this under the law. of Armenia are valid in Armenia in case of consular legalisation. In practice, the claims on the determination of a meeting schedule The following rules concern divorces concluded out-of-judicially. with the child(ren) can be presented and heard together with the Under Article 346(6) of the Code, the following are subject to divorce claim as well. recognition by Armenian courts: If there is only a claim, the court is entitled to make a decision on ■ foreign judicial acts on divorce between foreign citizens or on one of above subject matters. There can be two finance-related declaring the marriage as invalid; and claims presented in Armenia: alimony for child support; and alimony ■ foreign judicial acts on divorce between Armenian nationals or for spousal support. between Armenian nationals and foreign nationals or stateless persons or on declaring a marriage as invalid (see also, question 2.2 Do matrimonial regimes exist and do they need to be 1.1). addressed by the court on divorce? Is there a default matrimonial regime? 1.7 Does your jurisdiction allow separation or nullity proceedings? Matrimonial regimes exist under Armenian law. The matter is regulated under the Family Code and the Civil Code of Armenia. The concept of “separation” is not implemented in Armenian legis- According to a general rule, the property acquired during marriage lation. is common joint owned (the portions are considered equal and non- The marriage may be recognised as invalid by the court in case it is divided) between spouses, except for the following cases: concluded with the breach of one of the following barrier conditions: ■ personal use property (clothing, footwear, etc.), except for jewel- ■ the age of spouses should be no less than 18. Seventeen-year- lery and luxury items, which is the ownership of the spouse who olds can marry with parental consent. Sixteen-year-olds are has of use that property; entitled to marry someone no older than 18 years and with ■ donated or inherited property; and parental consent; ■ the property received by one of the spouses as a gift or ■ neither spouse should be in another marriage, registered by the succession in the course of marriage shall be in his or her procedure established by the law; ownership. ■ the spouses should not be immediate relatives (parents and It is allowed to conclude a marital contract and define a matrimonial children, grandparents and grandchildren, as well as siblings and regime other than that presented in the law. It should be noted that siblings with common mother or common father, aunts, uncles the spouses may conclude a marital contract and define the regime and cousins); regarding property during the marriage and in case of divorce. ■ the spouses should not be adopters or adopted; The court needs to address matrimonial regimes if only there is a ■ none of the spouses should be recognised as incapable by court; claim on distribution of the common property of the spouses. and ■ none of spouses should conceal a sexual virus including 2.3 How does the court decide what financial orders to HIV/AIDS, as well as drug addiction and toxic addiction from make? What factors are taken into account? the other while registering a marriage in the CSRD. The marriage can be recognised as null and void if the spouses, or one of them, register the marriage without an intention to make Please see question 2.1. a family (false marriage). Alimony: The court should decide based on Articles 68–74 of the Family Code; in particular, the court may take into consideration the minimum amount defined in the law, the financial capacities of 1.8 Can divorce proceedings be stayed if there are parents, including their income and assets, family status of the proceedings in another country? parent(s), the best interests of the child and other interests which the court finds deserving of attention. Based on the rule defined in the Code, the Armenian court shall Distribution of common property: The court should decide based leave the claim for divorce without consideration when: on the marital contract (if there is one). If there is no marital

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contract, the court should decide based on Article 201 of the Civil 2.8 Do the courts treat foreign nationals differently on Code of Armenia and define the property which is jointly owned divorce, if so, what are the rules on applicable law? Can the and distribute it equally between the ex-spouses. Spousal maintenance (alimony from the ex-spouse): The court court make orders applying foreign law rather than the law of makes a decision based on Articles 78–80 of the Family Code the jurisdiction? (including the grounds which give the right to demand spousal main- tenance) and takes into consideration the financial and family status The Constitution of Armenia prohibits any kind of discrimination; of the spouse and other matters of interest which the court deems therefore, the scope of rights and obligations are the same for both deserving of attention. nationals and foreigners, including in divorce proceedings. The court may make a decision by applying foreign law based on 2.4 Is the position different between capital and the conflict of law rules, in particular on Articles 146, 151 and 152 maintenance orders? If so, how? of the Family Code. However, the norms of foreign family law shall not be applied if such application contradicts the law and order (public order) of the Republic of Armenia. In accordance with the Family Code, alimony for the child(ren) may be defined based on income or on fixed amounts. However, in both cases, the amount is defined on a monthly basis. 2.9 How is the matrimonial home treated on divorce? Former spouses are entitled to demand alimony from ex-spouses if they meet conditions defined in law, i.e. the following persons may Armenian law does not use the term “matrimonial home” and thus require alimony from the spouse with enough material means by there are no special rules as regards that particular asset. judicial procedure: ■ an ex-wife during the pregnancy, as well as the spouse taking care 2.10 Is the concept of “trusts” recognised in your of a common child until the latter turns three years old; jurisdiction? If so, how? ■ a vulnerable ex-spouse, who takes care of their common disabled child or an offspring of first group disability; ■ a vulnerable, incapable ex-spouse, who became disabled before This is not applicable in this jurisdiction. the divorce or within a year after the divorce; and ■ a vulnerable spouse, who reached pension age within five years 2.11 Can financial claims be made following a foreign after the divorce, if the spouses were married for 15 years or divorce in your jurisdiction? If so, what are the grounds? more. The alimony from an ex-spouse should be defined in a fixed amount and as a monthly payment. Financial claims can be made in Armenia following a foreign divorce in case Armenian courts have jurisdiction over the dispute, i.e. the respondent is an Armenian national or the respondent is a foreign 2.5 If a couple agrees on financial matters, do they need to national who resides in the territory of Armenia at the time of filing have a court order and attend court? a claim or has a property in Armenia.

The agreement concluded in the form defined under the law will be 2.12 What methods of dispute resolution are available to valid and enforceable even if there is no court order or the parties’ resolve financial settlement on divorce? E.g. court, absence in the court. However, it should be noted that to be mediation, arbitration? compulsorily enforced, the agreement should be approved and become a court order. The dispute resolution methods available in Armenia as are follows: 2.6 How long can spousal maintenance orders last and are ■ the courts of general jurisdiction; ■ mediation in and out of judicial proceedings. It should be noted such orders commonplace? that mediation for divorce or divorce-related cases are not mandatory in Armenia; and Spousal maintenance orders last either as long as the grounds on ■ arbitration, but only for the cases on distribution of common which the maintenance is given continue to exist (see question 2.4) matrimonial property. or until the court releases (permanently or temporarily) the spouse from the obligation to pay maintenance if the spouse in need of 3 Marital Agreements assistance becomes incapable: ■ because of excessive alcohol, drug and toxic addiction or committing an intended crime; 3.1 Are marital agreements (pre and post marriage) ■ within a marriage term less than one year; or enforceable? Is the position the same if the agreement is a ■ because of immoral behaviour of the spouse requiring alimony foreign agreement? (unfaithfulness, gambling, etc.). There are a very small number of cases regarding alimony from ex-spouses in Armenia. Marital agreements are regulated under Articles 27–31 and 146 of the Family Code. A marital agreement can be concluded prior to marriage or at any 2.7 Is the concept of matrimonial property recognised in period during the marriage. The marital agreement regulates your jurisdiction? property rights and obligations of the spouses during the marriage and/or in the event of divorce and should be notarised to be valid The concept of matrimonial property is recognised in this and enforceable. jurisdiction (see question 2.2). A foreign agreement will be valid and enforceable if it complies with the conflict of law rules defined in Armenian law.

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3.2 What are the procedural requirements for a marital 5.2 How is child maintenance calculated and is it agreement to be enforceable on divorce? administered by the court or an agency?

The marital agreement should be notarised and may cover only Parents can decide the amount of child support by notarised agree- property rights and obligations of spouses. ment. In case of the absence of an alimony-paying agreement between parents, it is determined by the court at the rate of: 3.3 Can marital agreements cover a spouse’s financial ■ 1/4 of the parent’s income for one child; ■ 1/3 of the parent’s income for two children; and claims on divorce, e.g. for maintenance or compensation, or ■ 1/2 of the parent’s income for three or more children. are they limited to the election of the matrimonial property The amount of alimony is determined by the court based on the regime? greatest possibility of keeping the previous standard of living for the child, taking into consideration property and family status of the The marital agreement may cover all kinds of property rights and parties and interests deserving attention. obligations, which means spousal alimony or compensation can be The level of child support given may be decreased or increased defined together with the matrimonial property regime rules. by the court depending on the family and financial circumstances. However, it should be noted that alimony for a child(ren) is subject to regulation in agreements other than marital. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? 4 Cohabitation and the Unmarried Family For example, can a child seek maintenance during university?

4.1 Do cohabitants, which do not have children, have According to Armenian law, the parents are obligated to pay main- financial claims if the couple separate? What are the grounds tenance for the child. A child is entitled to alimony after turning 18 years old if he/she to make a financial claim? is incapable.

Under Armenian law, the rights and obligations of the spouses 5.4 Can capital or property orders be made to or for the emerge after the state registration of marriage in the CSRD. There benefit of a child? is no separate regulation for cohabitation. Thus, cohabitants are not entitled to any financial claims deriving from the fact of being in cohabitation. Under Armenian law, capital or property orders cannot be made by court; this can be only agreed between the parents. 4.2 What financial orders can a cohabitant obtain? 5.5 Can a child or adult make a financial claim directly This is not applicable in this jurisdiction. against their parents?

4.3 Is there a formal partnership status for cohabitants (for The claim on payment alimony for a child (as defined by Armenian example, civil partnerships, PACS)? law – please see question 6.2) is presented on behalf of the parent/guardian with whom the child lives permanently. If the child is 18 years old, he/she may present the claim on Marriage is the only type of formal partnership existing in Armenia. his/her name except for cases where their incapacity is connected Under Armenian law, marriage refers to those registered with the with mental disability and the claim should be presented on the name CSRD in accordance with the procedure established by the RA of assigned guardian (can be the second parent). Legislation with the obligatory presence of the persons who conclude the marriage (a man and a woman). 6 Children – Parental Responsibility and

Custody 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? 6.1 Explain what rights of custody both parents have in your Under the Armenian Constitution, only marriage between a man and jurisdiction whether (a) married, or (b) unmarried? a woman is allowed. Under Armenian law and practice, both parents have equal rights of 5 Child Maintenance custody, i.e. rights and obligation, over their child(ren). Thus, the disputes are about/courts decide upon the permanent living place of the child(ren) and not about custody itself. 5.1 What financial claims are available to parents on behalf No matter whether the child was born in or out of marriage, the of children within or outside of marriage? rights and obligations of parents over him/her are completely the same. Where custody is based on court decisions or registration with Each parent has a duty to participate in the needs of their children the CSRD, it is confirmed officially who the parents are. proportionally to their resources. Regardless of the parents’ marriage, the parent with whom the 6.2 At what age are children considered adults by the court? child lives has the right to request alimony from the other parent. The child is a natural person until the age of 18 except in cases of gaining full legal capacity earlier under the law. Minors aged 16 or

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older are entitled to ask the court to declare him/her as having full 6.9 Is a welfare report prepared by an independent legal capacity (being emancipated). professional or is the decision taken by the Judge alone? If

so, does the child meet the Judge? 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)? The report of independent profession shall be considered as evidence equal to others presented to the court. Under the law it is The duration of a children order is until the child turns 18 years old mandatory to have a report of the Commission of custody and or is emancipated based on a court order. guardianship. The Commission and the court should hear children who are 10 6.4 What orders can the court make in relation to children? years old and older. Children under the age of 10 should be heard Does the court automatically make orders in relation to child as regards the issues related to him/her, considering his/her age and maturity level. arrangements in the event of divorce? Decisions about the children older than 10 should be made based on his/her consent. To make an order about the child, the court should have a relevant claim on it. 6.10 Is there separate representation for children in your The claims may be presented and therefore examined and ordered in relation to the child(ren) as follows (the most common): jurisdiction and, if so, who would represent them, e.g. a ■ with which parent the child(ren) should live permanently; lawyer? ■ how much alimony should be paid for the child(ren); ■ how much child support should be paid in addition to the There is no separate representation for children in Armenia. alimony; If the case is about protection from abuse of a child against ■ the meeting schedule with the parent who lives separately from his/her parents (lawful representatives), the Commission of Custody the child(ren); and guardianship should undertake necessary means for protection ■ the meeting schedule with other immediate relatives, e.g. grand- of a child’s rights and interests. parents; ■ the restriction of parental rights; and 6.11 Do any other adults have a say in relation to the ■ the deprivation of parental rights. arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution 6.5 What factors does the court consider when making are available to resolve disputes relating to children? orders in relation to children?

The basic factor taking into consideration while deciding about the In relation to the arrangements for the child(ren), only parents have child(ren) is the best interest of the child(ren). The content of the a right to say. Should there be a dispute, the legally available and child(ren)’s best interest is based on the criteria defined in the law mandatory means of dispute resolution is settlement in court. and court practice as well as ECHR’s decisions. Mediation is not mandatory for family cases.

6.6 Without court orders, what can parents do unilaterally? 7 Children – International Aspects For example, can they take a child abroad? 7.1 Can the custodial parent move to another state/country Theoretically and due to law, the parents should decide on issues without the other parent’s consent? related to the common child(ren) jointly. In practice, most decisions are made by the parent with whom the child(ren) permanently live. The parent with whom the child permanently lives is entitled to Armenian law allows them to cross the border with one parent move to another state/country without the other parent’s consent. without the consent of the second. The consent of the second The issue is with the legislation of the other state/country, which parent is required in cases when and if it is required under the law may ban the entry of the child without the consent of the second of the foreign country. parent.

6.7 Is there a presumption of an equal division of time 7.2 Can the custodial parent move to another part of the between separating or divorcing parents? state/country without the other parent’s consent?

There is no presumption of an equal division of time between separ- The parent with whom the child permanently lives is entitled to ating and divorcing parents under the Armenian law, except for move to another part of the country without the other parent’s weekends, which shall be equally shared between parents, based on consent. court practice.

7.3 If the court is making a decision on relocation of a child 6.8 Are unmarried parents treated in the same way as abroad, what factors are taken into account? married parents when the court makes orders on separation or divorce? As far as Armenian courts have jurisdiction over the territory of Armenia, they do not decide on the determination of a child’s place Please see question 6.1. of living outside of Armenia. The Armenian court may decide with which parent the child should live permanently and may oblige the second parent to give consent to the child’s travelling abroad or

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consent on living abroad. The court decides based on the child’s The Code adopted in April 2018 defines several new rules as regards best interest. family case proceedings with the aim to develop the protection of minors’ interests which are as follows: 7.4 If the court is making a decision on a child moving to a ■ the court is now entitled to hear cases related to the minor and the best interest of the minor ex officio, which means the court is different part of the state/country, what factors are taken into not limited by the activities of arguing parents but may take account? measures deemed necessary for the protection of minors; and ■ the court is now entitled to secure claims related to the minor This is not applicable in this jurisdiction. and the best interest of the minor by its own initiative, and the security measure chosen may be similar to the subject matter of 7.5 In practice, how rare is it for the custodial parent to be the claim. In 2018, Armenia adopted the law on prevention of violence allowed to relocate internationally/interstate? within the family, protection of victims of violence within the family and restoration of peace in the family, which is a significant step on Please see question 7.3. The court does not allow the child to be the way to protection against violence in families. permanently relocated outside of Armenia permanently. There are Amendments to the Family Code were adopted in 2017 and are cases when the court allows temporary relocation, e.g. for medical mostly about the rights of minors and the criteria of the best inter- reasons, or when the court approves the reconciliation agreement ests of minors. between the parties on relocation of the child abroad. 8.2 What are some of the areas of family law which you think 7.6 How does your jurisdiction deal with abduction cases? should be looked into in your jurisdiction? For example, is your jurisdiction a party to the Hague Convention? The priority is the improvement of the Commissions of custody and guardianship, especially the professional level of specialists directly Armenia has been a Member State of the Hague Convention on the engaging in work with minors. Civil Aspects of International Child Abduction since 1 June 2007 Afterwards, it should be considered a necessity to have judges or (accession accepted by more than 60 countries) and has all necessary court specialists on family cases. The lack of specific knowledge in internal procedures required under the Convention. family issues is an obstacle to the complete protection of minors’ interests. 8 Overview

8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years?

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Narine Beglaryan is a partner with Concern Dialog Law Firm. She joined the firm in September 2013. She specialises in Banking Law, Contract Law, Corporate Law, Family Law as well as in court representation of administrative and civil cases. At present, she specialises in the spheres of Combat against Money Laundering and Financing of Terrorism. Currently, Narine Beglaryan provides legal clients of Concern Dialog Law Firm with legal consultancy and support related to inner processes, legal dealings, and litigation. Prior to joining Concern Dialog Law Firm, she worked at Armentel CJSC as legal representative of the department of legal support to the business and at BTA Bank CJSC as the chief lawyer of the legal office of the bank. Narine Beglaryan graduated from the Moscow New Juridical Institute and is qualified as a Certified Specialist in Civil Law. Narine has been qualified to practise law in the Republic of Armenia since 2007 and has been the Attorney of the Chamber of Advocates of RA since 2012.

Concern Dialog Law Firm Tel: +374 60 27 88 88 Office 207, Charents str. 1 Email: [email protected] Yerevan URL: www.dialog.am Armenia

Seda Soghomonyan joined Concern Dialog Law Firm in 2018. She holds the position of an associate. She specialises in Family Law. Before joining the Concern Dialog team, she worked at “WRF” NGO as an associate, at HRD office as an associate and at the Ministry of Health as an attorney. She has been a member of the Chamber of Advocates of RA since 2016.

Concern Dialog Law Firm Tel: +374 60 27 88 88 Office 207, Charents str. 1 Email: [email protected] Yerevan URL: www.dialog.am Armenia

Concern Dialog Law Firm CJSC was established in 1998 as a company for provision of litigation and representation services mostly for individual clients. Starting from 2002–2003, the company developed services for corporate clients as well. Although it is a formal corporation, it is perhaps the first company in Armenia that has implemented partnership principles (non- formal) of decision-making. At present, the company provides services of litigation, representation and legal advice. As we work with different corporate clients, along with one-time/order-based services, we provide monthly subscription services up to complete outsourcing of legal support of the busi- ness. Parallel to general business (trade) legal advice, our specialists specialise in provision of services of Telecommunication, Mining and Energetics sector companies, Family Law, Corporate Law, Financial Institutions and Capital Markets, Labour Law, Tax Law, etc. We believe that constant training and active scientific/publishing involvement is crucial for the development of professionals, so we encourage our specialists to be active in the abovementioned fields. www.dialog.am

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Australia Australia

Sheridan Emerson

Pearson Emerson Meyer Family Lawyers Louise Carter

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

Either party, or both jointly, may file a divorce Application. An 1.1 What are the grounds of jurisdiction for divorce Application is usually listed within a few months of being filed, proceedings? For example, residence, nationality, domicile, although timeframes vary depending upon with which Court etc.? Registry the Application is filed. Service is not required for joint applications, though is a requirement for sole applications. Service A party can initiate divorce proceedings if, at the date on which the of the Application must be personal (and can occur by post if the Application for Divorce is filed, either party to the marriage is Respondent completes an Acknowledgment of Service) unless the (s 39(3), 1975 (FLA)): Court gives leave. If a Respondent lives in Australia they must be ■ an Australian citizen; served no later than 28 days prior to the hearing. If a Respondent ■ domiciled in Australia; or lives overseas, they must be served no later than 42 days prior to the ■ ordinarily resident in Australia and has been resident for one year hearing. This is to allow time for the Respondent to file a Response, immediately preceding that date. should they wish to do so. When determining whether a person is domiciled in Australia, the The Court may deal with an Application for Divorce in open Court will look at the person’s domicile of origin or domicile of Court, or in Chambers. Once the Divorce Order is made, it comes choice (domicile of dependence applies now only to minors). into effect after one month and one day. When determining whether a party is “ordinarily resident” in Australia, the Court will look at a party’s voluntary place of abode 1.5 Can a divorce be finalised without resolving other which is a question of fact and includes where a party is “habitually associated matters? For example, children and finances. resident”. Yes. Once a Divorce Order has been made, however, parties have 1.2 What are the grounds for a divorce? For example, is one year from the date it comes into effect to apply for property there a required period of separation, can the parties have an settlement or spouse maintenance orders. There is no such time uncontested divorce? limit in relation to parenting matters.

There is only one ground of divorce in Australia, and that is that the 1.6 Are foreign divorces recognised in your jurisdiction? If marriage has broken down “irretrievably” (s 48(1) of the FLA), so, what are the procedural requirements, if any? meaning living separately and apart for at least 12 months. It is poss- ible for parties to live separately and apart under one roof. A Australia recognises a foreign divorce or annulment of marriage if, Divorce Order will not be made if the Court is satisfied that there at the date the Divorce Order is made in a foreign country, either or is a reasonable likelihood of cohabitation being resumed. one of the parties had a sufficient connection with the foreign jurisdiction. This would include if either one or both parties were 1.3 In the case of an uncontested divorce, do the parties resident of the foreign jurisdiction for at least one year prior to the need to attend court and is it possible to have a “private” date of the divorce, or if they were a national of the overseas jurisdiction (s 104(3) of the FLA). divorce, i.e. without any court involvement? Recognition is denied if it is contrary to public policy or if, under the common law rules of private international law, a party to the A party may file a sole Application for Divorce or a joint Application marriage had been denied natural justice. for Divorce (in circumstances where both parties are seeking a When a foreign Divorce Order or annulment of marriage has divorce). Where an Application for Divorce is filed jointly, neither been made, a party can make an Application to the Court for a party needs to attend Court. When a party has filed a sole decree of dissolution of marriage. Application for Divorce, the Applicant is required to attend Court where there is a child of the marriage under 18. Where one party 1.7 Does your jurisdiction allow separation or nullity contests the Application, both parties need to attend Court. For a divorce to be legally recognised, the Court is required to make an proceedings? order. As such, it is not possible to have “private” divorce, without any Court involvement.

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Australian Courts allow nullity proceedings, where it is established following the breakdown of a de facto relationship (see ss 90SM and that the marriage is “void”. A marriage is void if one of the 90SF(3)). The Courts are also heavily guided by case law. following applies: The Court will not make an order dividing property of the party, ■ It is bigamous. unless it is satisfied that, in all of the circumstances, it is just and ■ The parties are too closely related (ancestor/descendant or equitable to make the order (s 79(2)). siblings). If the Court is satisfied it is just and equitable, the Court will then ■ It was not a proper marriage ceremony in accordance with the take into account the following factors (s 79(4)): Marriage Act. ■ financial contributions made by or on behalf of a party to the ■ The consent of either party was not a real consent by reason of: marriage, towards the acquisition, conservation or improvement ■ fraud; of any of the property of the parties. These contributions can ■ mistake as to the identity of the other party or the nature be direct or indirect; of the ceremony; or ■ non-financial contributions made by or on behalf of the party ■ mental incapacity. to a marriage, towards the acquisition, conservation or ■ A party was under the age of 18 (except in exceptional circum- improvement of property of the parties. These contributions stances). can be direct or indirect; ■ the Court will also look at contributions made by a party to the 1.8 Can divorce proceedings be stayed if there are marriage, towards the welfare of the family (including the parties to the marriage and any children to the marriage). These proceedings in another country? contributions include any contribution made as “homemaker” or parent; and Yes. Australian Courts may stay proceedings in favour of foreign ■ the effect of any proposed order on the earning capacity of proceedings in circumstances where the Australian Court is a “clearly either party. inappropriate forum” and to continue the Australian proceedings Once the Court has considered the points above, the Court will would be vexatious or oppressive. This is a particularly difficult then look at the factors contained at s 75(2) whether there any threshold to meet. The focus of the Court when determining the prospective factors which need to be taken into account. The factors appropriate forum, is to focus attention upon the “inappropriateness” outlined in s 75(2), include, but are not limited to the following: of the Australian Court, and not the comparative appropriateness of ■ each party’s future earning capacity; the suggested foreign Court. ■ each party’s financial commitments; ■ the duration of the marriage and the extent to which it impacted 2 Finances on Divorce on the earning capacity of either party; ■ the parenting responsibilities of either party; and ■ whether either party has entered into a new relationship, and the 2.1 What financial orders can the court make on divorce? financial circumstances of that relationship.

Following divorce or separation, the Court can make a variety of 2.4 Is the position different between capital and financial orders. The general powers of the Court are set out in s maintenance orders? If so, how? 80 of the FLA. These powers include: ■ ordering a party to make interim property settlement (prior to a final hearing); Yes. A capital order specifically requires the Court to take into ■ an order that a party provide a lump sum for the other party’s account contributions (both financial and non-financial) as well as legal costs; future needs when making a decision. A maintenance order requires ■ an order that a necessary Deed or instrument be executed; the Court to consider need, in the context of the other party’s ■ spouse maintenance orders (including but not limited to ongoing capacity to pay. cash payments, lump sum payments, non-ongoing payments for S 72 of the FLA provides that a party to a marriage is liable to expenses such as mortgage repayments); maintain the other party if, and only if, the other party is unable to ■ injunctions for the personal protection of a party to the support him/herself adequately, and then only if the other party is marriage; reasonably able to do so. ■ injunctions restraining a party to the marriage from entering or When deciding whether to make an order for maintenance a remaining in the matrimonial home; and Court will consider a number of factors, including: ■ injunctions in relation to the property of a party to a marriage ■ age; where it appears to the Court to be just or convenient. ■ state of health; ■ income, property and financial resources; ■ physical and mental capacity for appropriate gainful employment; 2.2 Do matrimonial regimes exist and do they need to be ■ caring responsibilities for children; addressed by the court on divorce? Is there a default ■ responsibility to support any other person; matrimonial regime? ■ eligibility for a pension, allowance or benefits (including super- annuation); Matrimonial regimes do not exist in Australia, and there is no ■ a reasonable standard of living; “default” matrimonial regime in Australia. ■ support for a party whilst studying in order to increase their income earning capacity; ■ extent to which a party to a marriage has contributed to the 2.3 How does the court decide what financial orders to other’s income, earning capacity, property and financial make? What factors are taken into account? resources; ■ duration of the marriage and the extent to which it has affected The Court considers a variety of factors when deciding how to the earning capacity of a party; divide assets. The key sections of the FLA are ss 79 and 75(2) in the ■ financial circumstances of any other person a party is cohabiting case of the breakdown of a marriage. Analogous provisions exist with;

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■ the terms of any final property order; and 2.10 Is the concept of “trusts” recognised in your ■ the terms of any Binding Financial Agreement. jurisdiction? If so, how? The Court can make orders for periodic payments or for a lump sum. Spouse maintenance can be ordered on an interim or final basis; however, Courts in Australia are less likely to make long term, Trusts are recognised under Australian law and by the Family Court. final maintenance orders than other jurisdictions. If it can be demonstrated that one or either of the parties is in control of a trust and has the ability to benefit from the trust, noting that it need not be the same party (for example, a party may be both 2.5 If a couple agrees on financial matters, do they need to appointor and a beneficiary, or one party may be the appointor and have a court order and attend court? their former spouse a beneficiary) then the property owned by a trust will be treated as property available for division between the No. However, if they do not record their agreement in one of the parties. In considering the question of control, a party may be two methods outlined below, not only are there obvious problems regarded by the Court as controlling a trust either de facto or de jure. of enforceability but they cannot avail themselves of the revenue The Court has also determined that the property of a trust can be exemptions that are a consequence of recording an agreement by treated as the property of a party if the trust is a sham structure. court order or Binding Financial Agreement. Obtaining a court order may be by agreement and agreed orders 2.11 Can financial claims be made following a foreign and an Application for their approval are lodged with the Family divorce in your jurisdiction? If so, what are the grounds? Court and dealt with in chambers. A Binding Financial Agreement is purely between the parties but attended by formalities discussed later, without recourse to the Court It is important to distinguish what is meant by “a foreign divorce” for any purpose. because, as above, divorce is a proceeding distinct from financial claims in Australia. If final orders are made for alteration of property interests in a foreign jurisdiction, and an Application is brought before 2.6 How long can spousal maintenance orders last and are an Australian Court upon the same subject matter, the Applicant may such orders commonplace? be prohibited from continuing the Australian Application. If there are proceedings concluded in a foreign Court and the It is common for the Court to order interim maintenance, until the issues are not identical, the Australian Court has accepted that it will time of final hearing. It is less common for maintenance orders to have jurisdiction to deal with aspects of the property proceedings be made on a final basis. not dealt with by the foreign Court. Australian Courts must make such orders as will finally determine If a Divorce Order simpliciter has been made in a foreign Court, the financial relationship between the parties, so far as practicable (s Australian Courts can entertain an Application for financial claims. 81 of the FLA). See question 2.4. 2.12 What methods of dispute resolution are available to 2.7 Is the concept of matrimonial property recognised in resolve financial settlement on divorce? E.g. court, your jurisdiction? mediation, arbitration?

Under Australian family law, there is no distinction between property There are a range of dispute resolution methods available to parties which was acquired during the marriage (matrimonial property) or to resolve financial issues on divorce or breakdown of a relationship. property which may have been acquired prior to the marriage, or Mediation, collaborative law and arbitration are all available in following separation; however, the time at which property was Australia. Agreements reached by these methods, however, are not acquired and by whom can impact on the Court’s assessment of legally binding unless subsequently made into or registered as court contributions made by each party to the relationship. orders or financial agreements. If agreements are reached in the form of a Binding Financial Agreement, then their status will be 2.8 Do the courts treat foreign nationals differently on governed by the legislation concerning those agreements. divorce, if so, what are the rules on applicable law? Can the The Family Court refers most cases to court-sponsored mediation during the course of property proceedings. Recently, however, the court make orders applying foreign law rather than the law of Court has referred parties to attend private mediation or arbitration, the jurisdiction? as opposed to court-sponsored mediation, in an attempt to ease the burden on its financial resources. No. Australian Courts do not treat foreign nationals differently on divorce. Australian Courts will apply only Australian law. 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 It is simplistic to say that the home is simply part of the property the ownership of which is to be determined by the Court in any foreign agreement? Application for property settlement. While that is true, particular issues may arise in the context of the Court’s obligation to make an Pre- and post-nuptial agreements are called “financial agreements”. order that is just and equitable. A spouse with the care of children Parties may enter into Binding Financial Agreements made before may seek strenuously to retain the home while sacrificing other marriage, during marriage, or after a Divorce Order is made. entitlements such as pension or superannuation entitlements. It is The effect of financial agreements is to exclude the jurisdiction not uncommon for one party to seek interim relief to remain in sole of the Family Court as to those financial matters and resources occupation of the home pending final orders. which are covered in the agreement (s 71A FLA). These agreements are binding only if all statutory requirements are complied with. The relevant statutory provisions are set out in the FLA:

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■ Ss 90B to 90D, which set out the basic requirements for a financial claim against the other even if there are no children of the binding agreement, together with further requirements, set out relationship. in ss 90DA, DB, and E to G. A person is in a de facto relationship with another person if: ■ S 90G, which sets out the requirement that each party receive ■ The persons are not legally married to each other. independent legal advice in relation to certain issues if the agree- ■ The persons are not related by family. ment is to be binding. ■ Having regard to all the circumstances of their relationship, the ■ S 90K, which sets out the circumstances in which the Court can persons have a relationship as a couple living together on a set aside a financial agreement. genuine domestic basis. ■ S 90KA, which sets out the criteria for the validity, enforceability The Court will take into account the following factors when deter- and effect of financial agreements. mining whether the persons have a relationship as a couple: Agreements made in a foreign country are enforceable only if they ■ The duration of the relationship. comply with the statutory requirements outlined in the FLA. It is ■ The degree of financial dependence or interdependence, and not uncommon, where parties own in multiple countries, any arrangements for financial support, between them. for Australian lawyers to work with foreign lawyers to prepare an ■ The degree of mutual commitment to a shared life. agreement that satisfies the statutory requirements under Australian ■ The nature and extent of their common residence. law, as well as the requirements in the foreign jurisdiction. ■ Whether a sexual relationship exists. ■ The ownership, use and acquisition of their property. 3.2 What are the procedural requirements for a marital ■ Whether the relationship is or was registered under the prescribed law of a state or territory of Australia as a prescribed agreement to be enforceable on divorce? kind of relationship. ■ The care and support of children. There are various procedural requirements which must be met ■ The reputation and public aspects of the relationship. before a financial agreement is enforceable. These requirements are A financial Application may be brought provided any of the set out in s 90G of the FLA, and are summarised below: following are applicable: ■ The agreement must be in writing. ■ the period of the de facto relationship is at least two years; ■ The agreement must be signed by all parties. ■ there is a child of the relationship; or ■ Before signing the agreement, each spouse party was provided ■ the applicant has made substantial contributions and a failure to with independent legal advice by an Australian lawyer about the: make an order would result in serious injustice. ■ effect of the agreement on the rights of that party; and However, if the relationship is registered, the above qualifications ■ advantages and disadvantages of that party in making the do not need to be fulfilled. agreement. ■ Each party’s legal practitioner provides a signed statement of 4.2 What financial orders can a cohabitant obtain? advice. ■ Each spouse party receives a copy of the statement (but not the advice) given to the other. If the Court is satisfied that a de facto relationship exists, a party may In some circumstances where there are difficulties regarding the apply for any of the financial orders available to a married couple provision of independent legal advice or with the Statement of (or formerly married couple). Independent Legal Advice, an agreement may still be binding if the Court is satisfied it would be unjust and unequitable if the agreement 4.3 Is there a formal partnership status for cohabitants (for was not binding on a party. example, civil partnerships, PACS)?

3.3 Can marital agreements cover a spouse’s financial Most Australian states have in place legislation recognising the status claims on divorce, e.g. for maintenance or compensation, or of de facto relationships, for example: are they limited to the election of the matrimonial property ■ Tasmania, by means of the Relationships Act 2003, instituted a regime? registry system intending that partners sign a certificate witnessed by a state official. The certificate is then sent to the Registrar of Births, Deaths & Marriages and is known as a Deed Yes, financial agreements can deal with: of Relationship. ■ property interests; ■ In the Australian Capital Territory, the Civil Partnership Act ■ spouse maintenance; 2008 permits the registration by couples, of whatever gender, of ■ superannuation or pensions; and their civil partnership. This confers automatic legal recognition ■ matters incidental or ancillary to the preceding three matters. of being in a under the law of the Financial agreements can be entered into by parties prior to Australian Capital Territory. Couples must, however, live in the marriage, during marriage, or after separation. Equally, financial Territory. agreements can be entered into between de facto partners, or those ■ In Victoria, the Relationships Act 2008 also had, as its main intending to commence a de facto relationship. See question 4.1. purpose, overcoming of the need to prove the existence of the relationship. 4 Cohabitation and the Unmarried Family ■ In New South Wales, the Relationships Register Act 2010 (NSW) permits couples to register their relationship and grants formal recognition to couples who are unwilling to marry. 4.1 Do cohabitants, which do not have children, have ■ In South Australia, the Relationships Register Act 2017 (SA) financial claims if the couple separate? What are the grounds permits adults who are in a relationship as a couple, irrespective to make a financial claim? of their sex or gender identity, to register their relationship. ■ In Queensland, the Civil Partnerships Act 2011 (QLD) provides The FLA defines the relationship of cohabitation, referred to as a for couples to register their relationship. Couples can obtain “de facto relationship”. Parties in a de facto relationship may have a registration by having a civil partnership declaration ceremony, though this is not mandatory.

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In order for couples to bring themselves within the ambit of the Parties can object to decisions made by the DHS pursuant to the FLA as de facto partners, they must prove the existence of the de facto Child Support (Assessment) Act. Avenues of review are both relationship. Registration of a relationship is not determinative of administrative and judicial. the existence of the relationship but it is a very significant factor. 5.3 For how long is a parent required to pay child 4.4 Are same-sex couples permitted to marry or enter other maintenance or provide financial support for their children? formal relationships in your jurisdiction? For example, can a child seek maintenance during university?

Australian legislation was amended in 2017 to allow same-sex The duration of a child maintenance order or child support couples to marry. Same-sex couples are also permitted to enter into arrangement depends upon the type of order, agreement or assess- de facto relationships, which are recognised by the Family Court. In ment which is in place. the majority of Australian States, same-sex couples can register their A child maintenance order from the Court can extend beyond the de facto relationship. See question 4.3. age of 18 years in certain circumstances, as discussed at question 5.5. Most child support arrangements are assessments of the DHS. 5 Child Maintenance In addition, the Child Support (Assessment) Act provides that a child support assessment from the DHS, and a child support agree- ment entered into pursuant to the Child Support (Assessment) Act, 5.1 What financial claims are available to parents on behalf ceases to have effect upon the happening of a “terminating event”. of children within or outside of marriage? A terminating event occurs if: ■ The child dies. Applications for child support can be brought by a child’s parent or ■ The child ceases to be an eligible child under the regulations. non-parent carer (such as a grandparent or ). These ■ The child reaches 18 years of age. claims are not brought on behalf of the child, but are brought on ■ The child is adopted. behalf of the parent or non-parent carer to cover the child’s ■ The child becomes a member of a couple. expenses. ■ The child is not present in Australia, nor is the child an In the vast majority of cases, child support is determined by an Australian citizen, nor is the child ordinarily resident in Australia. administrative assessment upon Application to the Department of ■ Where there are two registrable child support liabilities in Human Services (DHS) (previously the Child Support Agency). relation to the same child and payer. This is discussed in more detail at question 5.2. There are, however, Parties who have entered into their own private agreement in alternative methods in which child support can be dealt with in relation to child support may also specify further “terminating Australia, for example: events” which may limit or extend the duration of the child main- ■ A party can make an Application in Court for an order for child tenance arrangement event further. For example, the agreement may support as part of the determination of other financial issues, stipulate that the child maintenance agreement ceases to have effect that order being made by way of “departure” from the adminis- if the child spends less than a certain amount of time with that trative assessment issued by the DHS. There are matters which parent. Legislation also requires that if a person who is to be paid must be established before the Court will exercise its jurisdiction child support pursuant to a private Agreement begins caring for a in this regard and it is not a matter of right. child for less than 35% of the time, the Agreement automatically ■ A party may enter into a formal agreement in relation to the suspends and ultimately terminates if the caring responsibility does financial support for his/her child. Such agreements can include not increase. child support to be paid by a lump sum, ongoing payments, by the transfer of assets, or by non-ongoing payments for expenses 5.4 Can capital or property orders be made to or for the such as school fees and health insurance. benefit of a child? ■ A Court may make orders for the payment of lump sum child support in circumstances where there may be difficulties in S 79(1)(d) of the FLA empowers the Court to make an order requi- enforcing periodic child support. ring either or both parties to the marriage or a bankruptcy trustee to ■ A Court may order maintenance for an adult child – see question make, for the benefit of either or both parties to the marriage or a 5.5. child of the marriage, a settlement or transfer of property as the

Court determines. It is very rarely used. 5.2 How is child maintenance calculated and is it administered by the court or an agency? 5.5 Can a child or adult make a financial claim directly against their parents? In most instances, provision of financial support for children is determined by a child support assessment rather than an order of a A child, either/both parents, or any other person concerned with the Court for child maintenance. Courts have become increasingly care welfare and development of the child, can apply to a Court reluctant to make orders departing from a child support assessment under s 66D(1) of the FLA for an “adult child maintenance order”. prepared by the DHS. The child must be unable to support him/herself due to The DHS was formed to assist parents to take responsibility for engagement in tertiary education or due to disability. The Court the financial support of their children. A formula is used by the takes into account the: DHS to calculate the amount of child support required on a case- ■ Needs of the child. by-case basis. The formula is calculated by looking at the parents’ ■ Financial circumstances of the child. incomes, the percentage of time the child is in their respective care ■ Capacities of the parent/parents to provide support. and the individual costs associated with the child. A child can make an Application for a child maintenance order The DHS has an online estimator on its website to assist parties pursuant to s 66F of the FLA in his/her own right. The Court has to calculate the support payable. the power to make a child maintenance order as it thinks proper,

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taking into account a number of factors including the proper needs primary and additional considerations the Court will take into of the child (in light of their age, education expectations and special account. needs) and the income, earning capacity, property and financial The primary considerations are: resources of a child. ■ the benefit to the child having a meaningful relationship with both parents; and 6 Children – Parental Responsibility and ■ the need to protect the child from harm (greater weight is placed Custody on this consideration). Additional considerations include: ■ any views expressed by the child (taking into account their level 6.1 Explain what rights of custody both parents have in your of maturity); jurisdiction whether (a) married, or (b) unmarried? ■ the nature of the child’s relationship with each parent and others; ■ the extent to which a parent has participated in decision-making Parents, regardless of whether they are married or unmarried, are and taken opportunities to spend time with and communicate not provided any “rights” in terms of custody under the FLA. with the child; Instead, the FLA focuses on the rights of the child, including the ■ levels of financial support provided; right to know and be cared for by both parents and to spend time ■ the likely impacts on the child of any change in circumstances, and communicate on a regular basis with each parent, provided it is particularly if the child is to be separated from a person with safe to do so, as well as the right to enjoy his/her culture and, in whom they have been living. The Court does not usually make particular, Aboriginal and Torres Strait Islander culture (where orders which separate siblings; applicable). The paramount consideration in protecting these rights ■ the capacity of each parent to provide for the needs of the child; is the best interests of a child. ■ the maturity, sex, lifestyle and background of the child; Until the Court orders to the contrary, both parents have parental ■ whether the child identifies with Aboriginal or Torres Strait responsibility for their children. There is a presumption that it is in Islander culture; the best interests of the children for parents to have equal shared ■ any family violence or family violence order; and parental responsibility. This presumption does not apply if there is ■ the need to make an order least likely to lead to further litigation. evidence of abuse or (or a risk of abuse or The above factors inform all parenting orders. In particular, the domestic violence). The presumption is rebuttable if it is found not Court will consider the above when making orders for parental to be in the best interests of the child. responsibility. If an order is made for equal shared (joint) parental responsibility, the Court must consider whether the child should live 6.2 At what age are children considered adults by the court? with each parent on an equal-time basis. If this is not reasonably practicable and/or in the child’s best interests, the Court must Children are considered adults once they reach the age of 18. consider whether the child should live with one parent but spend substantial and significant time with the other. “Substantial and significant time” is explained in the FLA to 6.3 What is the duration of children orders (up to the age of include: 16 or 18 or otherwise)? ■ time with the “non-live with” parent on weekends, holidays and weekdays; Parenting orders apply until a child turns 18 years of age. ■ time that allows each parent to be involved in the child’s daily routine; and 6.4 What orders can the court make in relation to children? ■ occasions and events of particular significance both to the children and to the parents. Does the court automatically make orders in relation to child There must be a consideration of whether an arrangement for arrangements in the event of divorce? substantial and significant time is both reasonably practicable and in the best interests of the children. As to what is reasonably prac- The Court does not automatically make any orders in relation to ticable, the Court looks at the distance between the parents’ homes, children. Until the Court orders to the contrary, both parents have the parents’ actual and future capacity to facilitate the orders, their parental responsibility for their children. The paramount consider- ability to communicate, the impact of the proposed arrangement on ation in any decision concerning children is their welfare or “best the children and other matters. interests”. The Court has the power to make any order that would be 6.6 Without court orders, what can parents do unilaterally? considered a parenting order. Examples of types of parenting For example, can they take a child abroad? orders include orders: providing for the child to live with one parent and spend time with the other; any change to the name of a child; orders providing for which parent has certain responsibilities for the Where there are no parenting orders in place, there is a presumption child; allowing for a passport application to be made; or nominating each parent has parental responsibility for a child. Parental where a child will go to school. Generally, the Court will not make responsibility can thus be exercised solely or jointly by either party. an order requiring that a child is or is not brought up in a particular In effect, this means that one party can make decisions about a child religious faith. without consulting the other. If there are neither current proceed- ings nor orders, a party is able to take a child abroad, without the consent of the other party. However, where one party continues to 6.5 What factors does the court consider when making make unilateral decisions in relation to the child’s care, without orders in relation to children? consulting the other party (for example, taking the child abroad, relocating the child, etc.), the other party would have recourse to the The paramount factor a Court will consider when making orders in Court preventing that party from doing so. relation to children is their best interests. There is also a number of

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6.7 Is there a presumption of an equal division of time 6.11 Do any other adults have a say in relation to the between separating or divorcing parents? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution There is no presumption that children will spend equal time with are available to resolve disputes relating to children? each parent upon their separation or divorce; however, there is a rebuttable presumption under the FLA that it is in the child’s best Any person concerned with the care, welfare and development of a interests that his/her parents have equal shared parental child can apply for parenting orders. This may include grandparents, responsibility for the children. Once a Court has made an order for adult siblings or step-parents. equal shared parental responsibility, the Court must then consider The nature of the relationship between a child and persons other whether it is reasonably practicable and in the children’s best interests than their parents (which includes siblings, grandparents and step- to make an order for the child to spend equal time with each parent. parents), as well as likely effect of any separation from such people The Court is not bound to make an order for equal time, simply to are considerations the Court takes into account when making a consider it. If the Court does not make an order for equal order. Siblings, grandparents and step-parents may also parental responsibility, the Court is not obliged to consider equal be interviewed as a part of the family report or expert report time. process. Accordingly, their views would be provided to the Court through the report writer. A sibling, grandparent or step-parent 6.8 Are unmarried parents treated in the same way as could also file an Affidavit in proceedings (if they are asked to by a married parents when the court makes orders on separation party to the matter). It would be a matter for a Judge to decide how or divorce? much weight to give to the views of other adults when making a decision regarding the arrangements for the children. There are a variety of ways in which parties can resolve disputes Unmarried parents are treated the same way as married parents when relating to parenting matters. A prerequisite before parties can file making parenting orders. an Application for parenting orders in the Family Court, is that they have attended “Family Dispute Resolution” with a registered Family 6.9 Is a welfare report prepared by an independent Dispute Resolution Practitioner. Specific exemptions apply to this professional or is the decision taken by the Judge alone? If requirement, for instance, where there are allegations of family viol- so, does the child meet the Judge? ence which would create difficulties for the parties attending the Family Dispute Resolution session together or urgency. In addition to the compulsory Family Dispute Resolution, a In the vast majority of parenting matters, the Court will order the preliminary step in parenting proceedings is to order parties to preparation of a “Family Report” (if it is prepared by a court- attend a “Child Dispute Conference” with a “Family Consultant”. sponsored “family consultant”) or “Single Expert Report” (if it is A Family Consultant is effectively a Court counsellor, whose role is prepared by a specialist psychologist or psychiatrist and paid for by to interview both parents, and sometimes the child/children, to the parties). These reports consider the framework set out under ascertain the main issues in dispute, and potentially help parties reach the FLA, as well as any other issues the writer is directed to and the agreement. The Family Consultant will provide a memorandum to writer will meet with the parents, children and any other relevant the Court to inform the Judge of the main issues in dispute, and any person. It is usual that the writers of these reports are cross- recommendations. examined at trial. Only in very rare cases will the child meet the In addition to the methods noted above, parties to disputes Judge. relating to children can utilise the dispute resolution methods noted at question 2.12 (save for arbitration). 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a 7 Children – International Aspects lawyer?

7.1 Can the custodial parent move to another state/country In some cases, the Court can appoint an Independent Children’s without the other parent’s consent? Lawyer (ICL) to represent a child. The ICL is a qualified lawyer who assists the Court when deciding what arrangements are in the best interests of the child. An ICL is usually appointed in the following The Court puts no restrictions on where a parent may reside; cases: however, if a parent causes the child to live interstate or overseas ■ Where the parties apply to the Court for an ICL. without the consent of the other parent or a court order permitting ■ Where there are allegations of abuse or neglect. this, the other parent can file an Application with the Court seeking ■ Where there is a high level of conflict. the child be returned. The Court will then consider the best interests ■ Where there are allegations of family violence. of the child in light of the primary and additional considerations set ■ Where there are serious mental health issues in relation to either out under the FLA when deciding whether to make such an order. of the parents or the child. The Court may make an order for the return of the child on an ■ Where there are difficult and complex issues involved in the urgent, interim basis. Resolution of such matters on a final basis can matter. take several years, given current delays in the Court system. Depending on the child’s age, the ICL may sometimes meet with It is a criminal offence punishable by up to three years’ imprison- the child. An ICL is obliged to consider the views of the child, but ment for a person to take a child outside of Australia if it is contrary ultimately the ICL must provide the Court with his/her own view to an order preventing or limiting overseas travel, or where there are about what arrangements would be in the child’s best interests. pending court proceedings for parenting orders. It is not, however, a criminal offence to take a child outside of Australia where the travelling parent has written permission from all parties to the relevant court proceedings.

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If one parent has concerns there is a risk the other may move to question of whether it is reasonably practicable that the child spend another country with the child, an Application can be made for that equal time with each of them”. However, the best interests of the child to be put on an airport watchlist which means they will not be children are not the sole consideration. able to leave Australia. 7.5 In practice, how rare is it for the custodial parent to be 7.2 Can the custodial parent move to another part of the allowed to relocate internationally/interstate? state/country without the other parent’s consent? Judges in family law matters have a wide discretion and whether a Parents with equal shared parental responsibility both have equal parent is permitted to relocate internationally or interstate with a decision-making responsibility in relation to long-term issues child is dependent upon the facts of a case. One of the primary concerning their child. A child moving to another part of the state considerations in terms of parenting orders is the benefit of a or country would constitute a “long-term issue” concerning the meaningful relationship between a child and his/her parents. It child, assuming that such a move would impact upon the other would be important for a parenting seeking to relocate to be able to parent’s ability to spend time with the child. If an agreement is not demonstrate they could facilitate a meaningful relationship between reached in relation to a child’s move to another part of the state or the child and the other parent should they be permitted to relocate. country and the custodial parent makes a unilateral decision to relocate regardless, the other party may apply to the Court for the 7.6 How does your jurisdiction deal with abduction cases? child’s return. For example, is your jurisdiction a party to the Hague If no order for parental responsibility has been made and there are no ongoing Court proceedings, the custodial parent could move Convention? to another part of the state/country without the other parent’s consent. The non-custodial parent could then make an Application Australia is a party to the Hague Convention. to the Court and an order may be made requiring the child’s return. Australia has also entered into bilateral treaties with Lebanon and See question 7.4. Egypt on international . These treaties provide a mechanism through which the Australian government can 7.3 If the court is making a decision on relocation of a child negotiate on behalf of the parent whose child has been abducted for the return of the child to Australia; however, this can be a lengthy abroad, what factors are taken into account? process. If a child is abducted overseas a parent would make an An important consideration in such cases is whether the child will Application to the Australian Central Authority for the return of an be able to maintain a meaningful relationship with the non-relocating abducted child to Australia. parent in the event relocation is permitted. As well as the primary Article 5(a) of the Convention refers to the term “rights of and additional considerations set out under the FLA, case law also custody”. Australia has abandoned the words “custody” and suggests that in relocation matters, the Court also looks at the “access” in family law matters but s 111B(4) of the Family Law Act following to determine whether relocation abroad is in the child’s 1975 was enacted to resolve doubts about the implications of those best interests: changes for Convention purposes. In short: ■ existence of family networks, or lack thereof, in the place of ■ Each parent is regarded as having a right of custody unless that relocation; parent has no parental responsibility for the child because of any ■ history of the residence of the parents and the child; court order. ■ ability of the relocating parent to obtain employment; ■ Subject to any court order, a person with whom a child is to live ■ financial considerations; and or who has parental responsibility for a child under any ■ the child’s wishes and whether or not the relocating parent’s parenting order has a right of custody. reasons for leaving are held in good faith or constitute an ■ A person who is responsible for the day-to day care, welfare and attempt to undermine the relationship between the child and the development of a child has a right of custody, subject to any other parent. court order. ■ A person with whom a child is to spend time or with whom a 7.4 If the court is making a decision on a child moving to a child is to communicate under any court order is regarded as different part of the state/country, what factors are taken into having a right of access. The applicant under a Hague Child Abduction Convention case account? must establish that the child was habitually resident in one Hague contracting state and then wrongfully removed to, or retained in, a Courts have repeatedly said that freedom of movement is different contracting state. Therefore, determination of habitual subordinate to the best interests of children (see, for example, U v residence is central. U [2002] HCA 36). The FLA also provides that a primary consider- The Family Court lags behind the Courts of some other ation when making parenting orders is the consideration of the signatories to the Hague Convention on International Child benefit to the child of a meaningful relationship with each parent. Abduction in being relatively slow to deal with applications for This is difficult to achieve where one party relocates. return, its tolerance for argument and protracted appeals process. The reasons for a parent wishing to relocate with a child are only one matter and should not be dealt with as a separate issue. The 8 Overview Judge must identify the competing proposals and evaluate their advantages and disadvantages, relative to the best interests of the child. 8.1 In your view, what are the significant developments in The leading case on this issue is MRR v GR (2010) 240 CLR 461. family law in your jurisdiction in the last two years? The Court in MRR v GR stated that the legislation “obliges the court 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 Family law matters are currently heard in Australia by the Family Court of Australia and the Federal Circuit Court of Australia

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(Western Australia is the only exception to this). The Federal ongoing concerns of practitioners practising in this complex area Government has recently announced these Courts may be (noting that many specialist family law practitioners still decline to amalgamated. The stated aim is to reduce delays in the family law provide advice in relation to pre or early relationship agreements, system. given the risks). In 2015, a Bill was proposed which dealt with some The Australian Law Reform Commission (ALRC) recently issued of the areas of concern, including such matters as the scope of the a report which consisted of a wide-ranging review into the family legal advice to be provided before such an agreement is binding and law system. The report makes 60 recommendations, including: other more procedural matters, though the Bill ultimately lapsed. In ■ Considering options for state and territory Courts to exercise the author’s view, the contents of this Bill ought to be revisited to jurisdiction under the FLA so that better protections relating to address some of the uncertainty about financial agreements in child protection and family violence laws are available, as these Australia. are areas in which states and territories have jurisdiction. A recommendation of the ALRC report (see question 8.1) is that ■ A streamlining of the factors to be considered when deter- relevant statutes be amended to require that a person’s knowledge, mining parenting arrangements that promote a child’s best experience skills and aptitude relevant to family law are considered interests. before they are appointed as a judicial officer exercising family law ■ Simplification of the approach to property division. jurisdiction. This is a highly specialised jurisdiction in which The Australian government is yet to confirm which decisions have a significant impact on the lives of litigants and their recommendations it will adopt. children. Judges who have the appropriate specialist skills should be appointed to the Court. 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? Note The contents of this chapter are not legal advice and should not be There is a consensus that the Family Court system is underfunded. used as such. Legal practitioners and parties should form their own As a consequence, delays are unacceptably long. views as to the matters contained in the Family Law Act 1975 (Cth). Legislative reform in relation to financial agreements is also an issue which, in the author’s view, needs to be addressed, given the

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Sheridan Emerson is a family law specialist accredited by the Law Society of New South Wales and a partner of Pearson Emerson Meyer. Sheridan is a Fellow of the International Academy of Family Lawyers (IAFL). Sheridan provides advice on all aspects of family law including property and financial matters, parenting issues, child support, spousal maintenance and de facto relationships, with a particular focus on those matters involving significant asset pools and issues of legal and commercial complexity. Sheridan presents regularly to members of the legal profession, both in NSW and nationally, on family law-related matters.

Pearson Emerson Meyer Family Lawyers Tel: +61 2 8202 9202 Level 15, 175 Liverpool Street Email: [email protected] Sydney NSW 2000 URL: www.pemfamilylaw.com Australia

Louise Carter is a Senior Associate at Pearson Emerson Meyer. Louise is responsible for a wide range of family law issues for our clients including separation and divorce, parenting disputes and arrangements, property settlements, financial agreements and de facto relationship breakdowns. Louise is the co-author of the chapter on Australian family law in “Family Law – a Global Guide” 4th edition published by Thomson Reuters, an industry internationally recognised and distributed book on international family law. Louise is currently working on the 5th edition. Louise has also contributed the chapter on Australian family law in “Family Law and Practice”, published by Sweet & Maxwell, and presents regularly to other members of the legal profession.

Pearson Emerson Meyer Family Lawyers Tel: +61 2 8202 9202 Level 15, 175 Liverpool Street Email: [email protected] Sydney NSW 2000 URL: www.pemfamilylaw.com Australia

Pearson Emerson Meyer Family Lawyers is a family law firm specialising in Pearson Emerson Meyer has consistently been recognised as a First Tier all financial matters dealing with marriage or other relationship breakdowns family law firm in New South Wales and Australia. We have 10 lawyers including de facto and same-sex relationships, and issues relating to children. accredited as family law specialists by the Law Society of New South Wales We also advise on and prepare prenuptial and financial agreements. Our at our firm. Their expertise enables us to focus on what we do best: resolve lawyers will use their experience, commitment, understanding and complex family law matters. communication skills to help you achieve your objectives. www.pemfamilylaw.com Pearson Emerson Meyer is based in Sydney, Australia but assist clients whose relationships and financial affairs transcend national boundaries, many with complex financial affairs. Two of our partners are Fellows of the International Academy of Family Lawyers (formerly International Academy of Matrimonial Lawyers). Pearson Emerson Meyer’s aim is to help clients resolve issues resulting from relationships quickly, and cost effectively.

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Bermuda Bermuda

Wakefield Quin Limited Cristen Suess

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

Once the Petition, together with the accompanying documents, is 1.1 What are the grounds of jurisdiction for divorce presented (filed) to the Court, the Petitioner is required to serve all proceedings? For example, residence, nationality, domicile, of the documents on Respondent (and/or Co-Respondents). Upon etc.? service, the Respondent has eight days (or 16 days if service is to occur outside of the jurisdiction) to indicate, by filing the Section 2 of the Matrimonial Causes Act 1974 provides that the Acknowledgment of Service, any intention to defend the divorce. Supreme Court of Bermuda shall only have jurisdiction to entertain If the Respondent does not intend to defend the divorce, or fails to proceedings for divorce or judicial separation if either of the parties file the Acknowledgment of Service, the Petitioner will file their to the marriage were ordinarily a resident in Bermuda for the period Request for Directions for Trial (undefended) to have the divorce of one year ending with the date that the proceedings were issued listed for a hearing, when the Court will grant the Decree Nisi. Six or alternatively that either party to the marriage is domiciled in weeks after the hearing of the undefended Petition, the Petitioner Bermuda. will be at liberty to obtain the Decree Absolute, completing the divorce and formally dissolving the marriage. The timeframe for undefended divorce typically takes approximately three to five 1.2 What are the grounds for a divorce? For example, is months to complete. there a required period of separation, can the parties have an Should the Respondent (and/or Co-Respondent) indicate on the uncontested divorce? Acknowledgment of Service that the divorce will be defended, they must file and serve their answer within 21 days after filing the Acknowledgment of Service. Thereafter the Petitioner may file any Section 5 of the Matrimonial Causes Act 1974 outlines the grounds reply within 14 days, in addition to a Request for Directions for Trial of divorce which a party to a marriage must prove. The Court, when (defended). The matter will then be listed for a hearing for making a finding that the marriage in question has broken down adjudication. The timeframe for a defended divorce can range from irretrievably, is only permitted to do so when one of the following six months to one year to complete. five facts are proven:

1. the Respondent’s adultery; 2. that the Respondent has behaved in such a way that the 1.5 Can a divorce be finalised without resolving other Petitioner cannot reasonably be expected to live with the associated matters? For example, children and finances. Respondent (commonly referred to as “unreasonable behav- iour”); A divorce can be finalised without resolving ancillary matters, which 3. the Respondent’s desertion for a period of two continuous years; are usually adjourned to a future date to be determined; however, if 4. the parties have lived apart for a period of at least two years and there are children of the marriage, the Court must be satisfied that the Respondent consents to the decree being granted in favour the arrangements for the welfare of child/children are at least “the of the Petitioner (commonly referred to as “two years’ separ- best that can be devised in the circumstances”, otherwise section 45 ation with consent”); or of the Matrimonial Causes Act 1974 precludes the Court from 5. the parties have lived apart for a continuous period of at least granting the Decree Absolute. five years immediately prior to the issuance of proceedings.

1.6 Are foreign divorces recognised in your jurisdiction? If 1.3 In the case of an uncontested divorce, do the parties so, what are the procedural requirements, if any? need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? Foreign Divorces are indeed recognised in accordance with the provisions of the Recognition of Divorces and Legal Separations If a divorce is uncontested, upon completion of the Acknowledgment Act 1977. of Service indicating that the divorce is not defended, the Respondent is not strictly required to attend Court, unless matters 1.7 Does your jurisdiction allow separation or nullity of ancillary relief are in dispute. There is no statutory mechanism in place for a “private” divorce as the Court has exclusive jurisdiction proceedings? to dissolve a marriage.

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The Matrimonial Causes Act 1974 does provide a mechanism for The Court’s objective, when considering the provisions of section parties to pursue proceedings for Judicial Separation (section 21) and 29, is to place the parties in the position that they would have been Nullity (sections 15 and 16). had the marriage not broken down, to the extent that it is practicable to do so. 1.8 Can divorce proceedings be stayed if there are proceedings in another country? 2.4 Is the position different between capital and maintenance orders? If so, how? The Court, in accordance with section 2(6) of the Matrimonial Causes Act 1974, has the discretion to stay proceedings for divorce As the Court considers and determines each case upon the facts if there is a concurrent action pending before a Court in another outlined in section 29 of the Matrimonial Causes Act 1974, and jurisdiction. Schedule 1 of the Matrimonial Causes Act outlines the circumstances of the parties, there is no material difference between criteria in which the Court may choose to exercise that discretion, a capital or maintenance order, save that the Court does not specifically when the validity or subsistence of the marriage is being currently possess the power to unilaterally order the sale of challenged before a foreign Court, or if on balance of fairness (and matrimonial property under the Matrimonial Causes Act 1974. convenience), the Court determines that it would be appropriate for the foreign proceedings to be disposed of before taking any further 2.5 If a couple agrees on financial matters, do they need to steps. have a court order and attend court?

2 Finances on Divorce If the parties have reached an agreement with respect to the disposal of all financial matters, it is common practice to draft and file a 2.1 What financial orders can the court make on divorce? consent order, detailing the agreement reached between the parties. Each party (or their attorneys) will execute and file the consent order for the Court to sign. Upon execution by the Court, the agreement The Court has the power to make one, or more, of the following becomes a formal order of the Court. orders within divorce proceedings:

■ periodical payments in favour of a party to a marriage; ■ secured periodical payments in favour of a party to a marriage; 2.6 How long can spousal maintenance orders last and are ■ a lump sum provision in favour of a party to a marriage; such orders commonplace? ■ periodical payments for the benefit of (and/or directly to) a child of the family; An order for periodical payments shall begin no earlier than the date ■ secured periodical payments for the benefit of (and/or directly of the application and shall extend for such term as the Court to) a child of the family; or considers appropriate but will come to an end on the death or ■ lump sum provision for the benefit of (and/or directly to) a remarriage of the party in whose favour the order is made. child of the family.

2.7 Is the concept of matrimonial property recognised in 2.2 Do matrimonial regimes exist and do they need to be your jurisdiction? addressed by the court on divorce? Is there a default matrimonial regime? The principle of Matrimonial Property is recognised by the Courts in Bermuda. Where the Court deems property to be “matrimonial Matrimonial regimes do not exist in Bermuda. property” it will become subject to the powers of the Court under the Matrimonial Causes Act 1974. 2.3 How does the court decide what financial 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? Can the Section 29 of the Matrimonial Causes Act 1974 outlines the criteria court make orders applying foreign law rather than the law of the Court must consider before exercising its powers with respect to the jurisdiction? financial and/or property adjustment orders: (a) the income, earning capacity, property and other financial The Court does not treat foreign nationals any differently on divorce resources which each of the parties to the marriage has or is save for in circumstances wherein the parties to the marriage have likely to have in the foreseeable future; been divorced in a foreign Court for which the equivalent of their (b) the financial needs, obligations and responsibilities which each decree is not recognised by the laws of Bermuda. In such a case the of the parties to the marriage has or is likely to have in the fore- parties will have to divorce under the laws of Bermuda and/or the seeable future; laws of a jurisdiction recognised by the laws of Bermuda (section (c) the standard of living enjoyed by the family before the break- 2(8)). The Court will not apply or make orders applying foreign law, down of the marriage; save for in the case of a nullity. (d) the age of each party and duration of the marriage;

(e) any physical or mental disability of either party to the marriage; (f) the contributions made by each of the parties to the welfare of 2.9 How is the matrimonial home treated on divorce? the family, including contributions made by looking after the home or caring for the family; and Upon divorce the former matrimonial home, unless otherwise (g) the value to either party of the marriage of any benefit (i.e. agreed, is usually transferred to one of the parties to the marriage, pension), which by reason of the dissolution of the marriage as the Court does not have the power to order that it be sold. In that party will lose the chance of acquiring, and the financial proceedings for ancillary relief, it is standard practice for the Court resources of the parties, including their income and assets. to order an appraisal of the property, and subject to any legal

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mortgage (or registered charge) over the property, the party retaining weight the Court will attach to it will depend on the circumstances the property is at liberty to purchase their spouse’s interest as deter- of the parties and the children of the family. mined by the Court, pursuant to a property adjustment order or otherwise agreed between the parties. 3.2 What are the procedural requirements for a marital

agreement to be enforceable on divorce? 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? Although there is no specific legislation governing martial agree- ments, to be enforceable a marital agreement should be in writing, Trusts are indeed recognised by the Bermuda Courts. The Court entered into freely and without undue influence and should disclose will often enquire as to the nature of the trust and the trust assets the financial position and all material facts with respect to both to determine if it is to be deemed to be a “nuptial settlement”. parties. Additionally, where it can be demonstrated that an asset of a trust is a financial resource of the “beneficiary spouse”, the Court can 3.3 Can marital agreements cover a spouse’s financial consider whether or not to make an order placing the onus on the claims on divorce, e.g. for maintenance or compensation, or trustees to make any benefits derived therein available to the “claiming spouse”. are they limited to the election of the matrimonial property regime? 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? A marital agreement can cover all matters of ancillary relief that are applicable to the parties to the marriage.

The Recognition of Divorces and Legal Separations Act 1977 provides a statutory mechanism for which an individual can apply to 4 Cohabitation and the Unmarried Family the Supreme Court of Bermuda for ancillary relief under the Matrimonial Causes Act 1974. Section 9 of the Recognition of 4.1 Do cohabitants, which do not have children, have Divorces and Legal Separations Act 1977 provides limited scope for financial claims if the couple separate? What are the grounds parties seeking relief, in that the Supreme Court can only exercise its powers in relation to land or any interest in land. to make a financial claim?

2.12 What methods of dispute resolution are available to There is no statutory framework providing a mechanism for resolve financial settlement on divorce? E.g. court, cohabitants who do not share children, therefore, unless the parties involved have a claim against (or involving) real property for which mediation, arbitration? they seek to establish some interest in, there are no grounds upon which they would be able to make a claim. In lieu of pursuing contentious litigation through the Court, parties may opt to participate in the collaborative law process, mediation or 4.2 What financial orders can a cohabitant obtain? arbitration to resolve financial matters of their divorce.

3 Marital Agreements This is not applicable.

4.3 Is there a formal partnership status for cohabitants (for 3.1 Are marital agreements (pre and post marriage) example, civil partnerships, PACS)? enforceable? Is the position the same if the agreement is a foreign agreement? In June 2018 the Domestic Partnership Act 2018 was enacted, in response to the landmark case of Godwin DeRoche et al [2017] SC The position with respect to pre- and post-nuptial agreements, has (Bda) 36 civ wherein the Supreme Court ruled that the common law not been fully considered by the Bermuda Court. However, in 2008, definition of marriage was incompatible with the provisions of the the Privy Council in the United Kingdom, Bermuda’s highest appel- Human Rights Act 1981, resulting in the legalisation of same-sex late Court, considered the enforceability of post-nuptial agreements marriage. Although applicable to all partnerships, provisions of the in the case of McLeod -v- McLeod, when it was held that post-nuptial Domestic Partnership Act 2018 were later determined to be uncon- agreements were to be treated as maintenance agreements, and are stitutional, contravening the rights of the individual to freedom of therefore binding and enforceable. conscience and from discrimination on the basis of creed. With respect to pre-nuptial agreements, although historically considered to be against public policy, the leading authorities in the 4.4 Are same-sex couples permitted to marry or enter other United Kingdom demonstrate a shift in how the Courts consider the formal relationships in your jurisdiction? enforceability of pre-nuptial agreements. As judgments of the United Kingdom Supreme Court, remain persuasive in Bermuda, it is likely that the Court will consider a pre- and/or post-nuptial agree- As a result of the decision in Godwin DeRoche et al, and the ment to be enforceable to some degree; however, the Supreme Court subsequent legal challenge of the provisions of the Domestic of Bermuda presently retains exclusive jurisdiction to make financial Partnership Act 2018 in the case of Ferguson Jackson et al, same-sex orders upon the breakdown of a marriage that it deems necessary, couples are permitted to lawfully marry. The case of Ferguson Jackson in the circumstances. et al has been appealed to the Court of Appeal and is presently As a matter of practice, martial agreements are highly persuasive before the Privy Council. Until such time as the Privy Council evidence to demonstrate the intentions of the parties. The Court renders its decision, same-sex couples are permitted to marry. will give due regard to a marital agreement; however, the amount of

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5 Child Maintenance The Court is empowered under the Matrimonial Causes Act 1974, the Children Act 1998 and the Minors Act 1950 to make capital and property orders for the benefit of a child. 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? 5.5 Can a child or adult make a financial claim directly against their parents? Sections 25 to 29 of the Matrimonial Causes Act govern the types of orders the Court can make on divorce, with respect to children Children (including adults) can make financial claims against their of the marriage, specifically: parents directly under the Children Act 1998 and the Minors Act ■ periodical payments for the benefit of (and/or directly to) a 1950; however, in the case of a child, such claims are subject to the child of the family; procedural requirements of the Rules of the Supreme Court 1985. ■ secured periodical payments for the benefit of (and/or directly In accordance with Order 80 of the Rules of the Supreme Court to) a child of the family; or 1985, any claims brought by a child must be made via their “next ■ lump sum provision for the benefit of (and/or directly to) a friend” who must, in turn, be represented by counsel. child of the family. Although section 18A of the Children Act 1998 abolishes the 6 Children – Parental Responsibility and distinction between “legitimate and illegitimate” children, sections Custody 36.1A–M outline the obligations for, and applicable to, the support of all children irrespective of the marital status of their parents. Applications under the Children Act 1998, unless otherwise stated 6.1 Explain what rights of custody both parents have in your therein, are dealt with by the Special Court of the Magistrates’ Court jurisdiction whether (a) married, or (b) unmarried? of Bermuda who have the power to make the following interim or final orders: ■ periodical payments for the benefit of the child; Applications to the Court to determine custody, inclusive of care ■ a lump sum payment to be paid or held on trust, for the benefit and control, are determined based on the welfare of the child. of the child; Section 36C of the Children Act 1998 expressly provides that ■ payment of expenses relating to the birth of the child; or persons entitled to custody of a child have “the rights and ■ securing payment (via attachment of earnings order, charge on responsibilities of a parent in respect of the person of the child, property or any other method the Court deems appropriate in including the right to care and control of the child and the right to the circumstances). direct the education and moral and religious training of the child”. The Minors Act 1950 also empowers the Court to make orders Therefore, as a matter of law, because both parents are deemed to with respect to maintenance for the benefit of a minor by/to a possess parental responsibility for a child, both parents are, in turn, parent and/or guardian of the child, in addition to the general equally entitled to custody of the child, irrespective of their marital management of a minor’s property. status.

5.2 How is child maintenance calculated and is it 6.2 At what age are children considered adults by the court? administered by the court or an agency? Children reach majority upon their eighteenth birthday.

Child maintenance is calculated based on a variety of factors to be considered by the Court. There is no prescribed or legislated 6.3 What is the duration of children orders (up to the age of formula that determines the level of maintenance a party is to 16 or 18 or otherwise)? receive for the benefit of a child, as applications will be considered on a case-by-case basis. The Court, in determining the level of Children will be considered by the Court to be children of the family maintenance payable for the benefit of a child must apportion the (section 45 of the Matrimonial Causes Act 1974) and/or dependants obligations between parents, to support that child, according to their (section 36.1A of the Children Act 1998) for the purposes of any abilities to contribute to the performance of their obligations. maintenance obligations as long as they remain in full-time Upon setting the level of maintenance payable for the benefit of education. the child, the enforcement of any order for the support of a child is exclusively dealt with by the Collecting Office of the Magistrates’ Court. 6.4 What orders can the court make in relation to children? Does the court automatically make orders in relation to child 5.3 For how long is a parent required to pay child arrangements in the event of divorce? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? The Matrimonial Causes Act 1974 does not contain specific provisions which detail what arrangements the Court can order with respect to a child of the family, and as such the Court will look to A parent’s obligation will continue until the child is 18 and will only the Children Act 1998 when considering an application relating to be extended if the child is enrolled in full-time education or if the the rights of custody of a child. Section 36F of the Children Act child is unable to withdraw from the charge of their parents by 1998 outlines the powers the Court has with respect to making reason of illness, disability or other cause. orders for custody of a child, specifically: ■ An order granting custody of or access to the child to one or 5.4 Can capital or property orders be made to or for the more persons. benefit of a child? ■ An order determining any aspect of the incidents of the rights of custody or access to the child.

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■ Any other additional order as the Court considers necessary and make whatever decision it deems necessary to promote the welfare proper in the circumstances. of the child, in the absence of any reports. It is of note, however, that, upon divorce, the Court will enquire On an application for custody and/or access to a child, section into the agreed arrangements for a child of the family with respect 36I of the Children Act 1998 provides that, where at all possible, the to custody, care and control, access and travel. Upon enquiry, the Court shall take into consideration the views and preferences of that Court can refuse to make absolute, a decree of divorce, if unsatisfied child to the extent in which the child is able to express them. that the arrangements are, at least, “the best that can be devised in Additionally, section 36I confers a discretion on the Court to inter- the circumstances”. view the child directly to determine their views and preferences. Applications relating to children that are heard in the Supreme 6.5 What factors does the court consider when making Court are decided by one judge, sitting alone. Applications that are heard in the Special Court in the Magistrates’ Court are determined orders in relation to children? by a panel within the Special Courts, comprised of two members of the public and chaired by a Magistrate. The Court will consider a variety of factors when making orders in relation to children, including the child’s age, the parents’ ability to 6.10 Is there separate representation for children in your provide the child with a long-term stable home environment (which includes all of the necessities of life such as food, safety, access to jurisdiction and, if so, who would represent them, e.g. a medical care and education); however, the welfare of the child is lawyer? always the paramount consideration. Children can be represented separately but can only issue or defend 6.6 Without court orders, what can parents do unilaterally? proceedings via their “next friend” or “guardian ad litem” respectively. For example, can they take a child abroad? In June 2019, the Court of Appeal held that children had the right to separate representation, where the Court determines that it is required to safeguard their rights and welfare. In such circumstances, In the absence of an order of the Court, the de facto position is that the Court will appoint a “litigation guardian” (who must be a private parents will have of the child. This will mean that social worker) who is required to instruct counsel to represent the neither parent can make any decisions, including travelling overseas, child’s interests in Court. with respect to the child, without leave of the Court or the express consent of the other parent. 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or 6.7 Is there a presumption of an equal division of time grandparents or siblings. What methods of dispute resolution between separating or divorcing parents? are available to resolve disputes relating to children? There is a presumption of joint custody of the child upon divorce; however, section 36C(4) of the Children Act 1998 specifies that Unless otherwise ordered or agreed, only those possessing parental when parents are living separate and apart and the child lives with responsibility and custody, by operation of law, court order or deed one parent with the consent of the other, that parent’s right to of legal guardianship, are permitted to have a say with respect to the exercise their entitlement to custody, is suspended until a separation arrangements for a child. agreement or order of the Court otherwise provides. It is of note Parties seeking to resolve disputes regarding children can opt to that the suspension of the right to exercise the entitlement to participate in private or court-ordered mediation, as an alternative to custody of a child, under section 36C(4) does not include the formal litigation. entitlement to access to the child. 7 Children – International Aspects 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation 7.1 Can the custodial parent move to another state/country or divorce? without the other parent’s consent?

There is no difference in the treatment of parents as a result of their Given that Bermuda is a small jurisdiction, if a custodial parent were marital status, as a result of the abolition of the distinction between to relocate to another part of Bermuda, consent would not be legitimate and illegitimate children, and the guiding principle that required. both fathers and mothers should have liberal access to their children, pursuant to sections 18A and 2(2) of the Children Act 1998, 7.2 Can the custodial parent move to another part of the respectively. state/country without the other parent’s consent? 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If Given that Bermuda is a small jurisdiction, if a custodial parent were to relocate to another part of Bermuda, consent would not be so, does the child meet the Judge? required.

The Court has the power, under section 36E of the Children Act 7.3 If the court is making a decision on relocation of a child 1998, to appoint a person with technical or professional skills to abroad, what factors are taken into account? assess and report to the Court on the needs of the child to whom an application for custody or access relates. The power to order such an assessment is discretionary, with the Court retaining the power to Applications to permanently remove a child from Bermuda are determined based on the welfare principle. As such, there are no statutory provisions detailing how the Court should exercise its

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discretion, with each case being determined based on the welfare Domestically, the Children Act 1998 provides the Court with the principle and the facts. power to enforce orders for custody, including care and control and When considering such an application, the Court takes the access, with respect to a child. Such orders are used as preventative following criteria into consideration: measures to prevent the unlawful removal of children from ■ If the “applying parent’s” application is genuine in nature. Bermuda. ■ The impact on both the “applying parent” and the child if the The Children Act 1998 details the Court’s powers to prevent the application were to be refused. unlawful removal of children from Bermuda; however, applications ■ Is the objection to the child’s removal from the “respondent under section 22 of the Minors Act 1950 are to expressly prohibit parent” motivated out of genuine concern for the welfare of the the removal of a child from Bermuda. Applications under the child or is there some other undisclosed motive? Minors Act 1950 are usually used in an emergency and/or time ■ What would be the impact or detriment to the relationship sensitive cases and are usually made ex parte. between the “respondent parent” and the child if the application were granted? 8 Overview

7.4 If the court is making a decision on a child moving to a 8.1 In your view, what are the significant developments in different part of the state/country, what factors are taken into family law in your jurisdiction in the last two years? account?

Within the past two years family and matrimonial law have experi- This is not applicable. enced significant development in Bermuda, particularly in the area

of the rights of children with regards to separate representation and 7.5 In practice, how rare is it for the custodial parent to be the duties of the government to secure funding for such allowed to relocate internationally/interstate? representation. Also, with the introduction, repeal and subsequent reintroduction As a matter of practice, it is extremely common that a custodial of same-sex marriage, the definition of “family” in Bermuda is parent, also referred to as the “primary carer” would seek to relocate rapidly changing/expanding. with the child/children, particularly for educational or employment Finally, in 2018, in an unreported judgment, the issue of adoption purposes. The Court rarely refuses such an application if genuinely via surrogacy came before the Court, for the very first time, resulting made and arrangements are made for the “respondent parent” to in consideration for policies and guidelines within the context of maintain liberal access to the child. adoption of children.

7.6 How does your jurisdiction deal with abduction cases? 8.2 What are some of the areas of family law which you think For example, is your jurisdiction a party to the Hague should be looked into in your jurisdiction? Convention? The manner in which , particularly step-parent adoptions, can be extremely complex and confusing for litigants in person, Bermuda became a party to the Hague Convention on the Civil especially as the adoption process is relatively expensive to begin Aspects of International Child Abduction in 1999. with. Legislative changes could be used to streamline the process, Bermuda adopted the Hague Child Abduction Convention by way so as to further promote access to justice, as the purpose and spirit of further legislation, namely the International Child Abduction Act of the legislation is to unite children with their new families. 1998, and thereafter the International Child Abduction (Parties to

Convention) Order 1999.

Applications under the Hague Convention are made to the

Supreme Court, with the Rules of the Supreme Court 1985 setting out the procedure for the application.

An applicant must satisfy the Supreme Court that they were exercising rights of custody, in addition to proving the abduction of the child. Upon satisfaction of both criteria, the Supreme Court will more than likely make an order for the return of child to the country where they are a habitual resident.

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

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

Wakefield Quin (WQ) is a leading Bermuda law firm that has earned an inter- The firm’s 20 lawyers are actively involved in professional organisations national reputation for providing high-calibre legal services. WQ is dedicated including the Bermuda Bar Association, Restructuring and Insolvency to providing clients with timely, sophisticated and solution-driven legal advice Specialist Association, the International Bar Association, and Alternative and is known for delivering personalised and efficient legal services. WQ Investment Management Association. achieves a high standard of professionalism by listening to client needs and www.wq.bm understanding client requirements. WQ’s practice areas include corporate, banking, structured finance, invest- ment funds, insurance and reinsurance, trust and private client, cross-border mergers and acquisitions, intellectual property, insolvency and restructuring, shipping and aviation, and property. WQ recognises the vital importance of establishing close and continuing business relationships with clients and has forged valuable networks with legal professionals in the US, UK, Europe, and Asia.

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Canada – Ontario Canada – Ontario

Sarah Boulby

Boulby Weinberg LLP Oren Weinberg

1 Divorce The timeline for obtaining a divorce depends entirely on whether the Divorce application is contested and whether other relief aside from a simple divorce is being requested. 1.1 What are the grounds of jurisdiction for divorce The first step to obtaining a divorce is to prepare a Divorce application. This document will be relatively straightforward where proceedings? For example, residence, nationality, domicile, the only claim is for a divorce. This application can be jointly etc.? prepared and submitted by the parties. If other relief is sought (such as property division, support, custody/access), a more detailed Divorces in Ontario are governed by the federal Divorce Act. An application will be required along with additional documents. Ontario court has jurisdiction where either spouse has been The application must then be issued by the court. The application ordinarily resident in the province for at least one year immediately will be served on the other party, who has 30 days to respond. The before commencing the proceeding. The residency requirement is other party may make claims for other relief in their answer. a question of fact. The court considers such factors as whether the The next steps will depend on whether the other party files spouse resided in the province as a customary mode of life as responding material and whether claims for additional relief have opposed to merely casually or occasionally, and whether the spouse been made. If they do not file any responding material, and the only had the intention of making a home in that province for an claim being made is for a divorce, a divorce may be granted within indefinite period. This is not dependent on citizenship, domicile or months. If other claims are made, the next step may be an uncon- immigration status. The other spouse may argue another jurisdiction tested trial without an oral hearing, which can occur relatively quickly. presents a more convenient forum. If the other party does file responding material, the next step is If neither spouse resides in Canada at the time of the application for the parties to schedule a case conference with the court, which and each of the spouses is residing in a foreign jurisdiction that does is a relatively informal court appearance designed to allow both not recognize the validity of their marriage, the federal Civil parties to appear before a judge and explore the issues, discuss poss- Marriages Act provides that a court in the province where the ible settlements and determine the next steps in the case. If the spouses were married may grant a divorce. matter does not resolve at the case conference, either party will be free to bring a motion on any issues in the case and the matter will 1.2 What are the grounds for a divorce? For example, is eventually proceed to trial, following further court conferences.

there a required period of separation, can the parties have an 1.5 Can a divorce be finalised without resolving other uncontested divorce? associated matters? For example, children and finances. A court may grant a divorce where there has been a breakdown in the marriage. A breakdown in the marriage can be established only Before a court will grant a divorce in Canada, it needs to be satisfied in the following circumstances: that reasonable arrangements have been made for the support of ■ the spouses have lived separately and apart for a period of not any children. less than one year immediately before the divorce is granted; ■ the other spouse has committed adultery; or 1.6 Are foreign divorces recognised in your jurisdiction? If ■ the other spouse has been physically or mentally cruel to render so, what are the procedural requirements, if any? a continuation of cohabitation intolerable.

Canada will recognize a foreign divorce so long as the divorce is valid 1.3 In the case of an uncontested divorce, do the parties in the other country and one or both of the spouses was ordinarily need to attend court and is it possible to have a “private” resident in the other country for at least a year immediately before divorce, i.e. without any court involvement? applying for a divorce. To remarry in Ontario, the couple must provide a legal opinion from an Ontario lawyer to confirm the Parties need not attend court to obtain a divorce. Once the 30 days foreign divorce should be recognized and they must jointly sign a for a response to the Divorce application has lapsed, the spouse statement of sole responsibility that their foreign divorce will be applying for the divorce can proceed to file written documentation recognized in the province. for a Divorce Order. It is not possible to have a private divorce. 1.7 Does your jurisdiction allow separation or nullity 1.4 What is the procedure and timescale for a divorce? proceedings?

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

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

2.1 What financial orders can the court make on divorce? In Ontario, there is no special category of matrimonial property. All forms of property are equalized under the Family Law Act. The court can make orders in respect of child support, spousal support and property division. 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Can the 2.2 Do matrimonial regimes exist and do they need to be court make orders applying foreign law rather than the law of addressed by the court on divorce? Is there a default the jurisdiction? matrimonial regime?

Foreign nationals are not treated differently assuming jurisdiction is In Ontario, the Family Law Act deems all marriages to be economic found. In very restricted circumstances, foreign law may apply with partnerships. At the end of the marriage, whether by separation or respect to property rights if the parties separated while living in death, a spouse may seek an equalization payment from the other. another jurisdiction. The equalization calculation provides for the parties to share an

increase in wealth during the marriage. All forms of property are valued at the date of marriage and the date of separation, with 2.9 How is the matrimonial home treated on divorce? certain assets unrelated to the partnership, such as during the marriage, being excluded. In rare cases, a court may order In Ontario, any home which the parties ordinarily occupied at the unequal division where equalization would be unconscionable. time of separation has special treatment in equalization. The owner of the home may not claim a deduction for the same property at the 2.3 How does the court decide what financial orders to date of marriage. Moreover, regardless of legal ownership, both make? What factors are taken into account? parties have a right of possession to the home until divorce or court order and neither party can sell or encumber the property without the other party’s consent. A court will consider factors related to the financial circumstances of the parties, including income, assets and liabilities both during the marriage and following separation. The circumstances and actions 2.10 Is the concept of “trusts” recognised in your of the parties around the time of separation may also be relevant jurisdiction? If so, how? depending on the claims being made. In spousal support claims, the length of the marriage, the impact of childcare responsibilities, and Trusts are recognized in Ontario. the financial consequences of marriage breakdown to the parties are considered. 2.11 Can financial claims be made following a foreign

divorce in your jurisdiction? If so, what are the grounds? 2.4 Is the position different between capital and maintenance orders? If so, how? Ontario courts do not have jurisdiction to hear and determine spousal support claims following a valid divorce in another jurisdiction. An Ontario court may have jurisdiction under the

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Family Law Act to determine child support and family property 4.3 Is there a formal partnership status for cohabitants (for claims. example, civil partnerships, PACS)?

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

3 Marital Agreements 5 Child Maintenance

3.1 Are marital agreements (pre and post marriage) 5.1 What financial claims are available to parents on behalf enforceable? Is the position the same if the agreement is a of children within or outside of marriage? foreign agreement?

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

4 Cohabitation and the Unmarried Family benefit of a child?

Family property rights are reserved for parents. 4.1 Do cohabitants, which do not have children, have financial claims if the couple separate? What are the grounds 5.5 Can a child or adult make a financial claim directly to make a financial claim? against their parents?

In Ontario, cohabitants have rights to support and may make equi- A dependent child, whether a minor or a legal adult, may apply for table claims for relief in relation to property but do not have the support from a parent but this is rare. right to equalization. Unmarried spouses have spousal support rights if they have 6 Children – Parental Responsibility and cohabited for at least three years. They may make common law property claims or equitable claims for unjust enrichment, other Custody restitutionary claims or resulting trust claims. 6.1 Explain what rights of custody both parents have in your 4.2 What financial orders can a cohabitant obtain? jurisdiction whether (a) married, or (b) unmarried?

Cohabitants may claim child support, spousal support or assert All parents, whether married or unmarried, may make a claim for common law or equitable property claims. custody or access to a child.

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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 separation child’s health, education and welfare. or divorce? 6.2 At what age are children considered adults by the court? Regardless of whether a claim is being made by a married or unmarried parent, the legal test and the considerations are the same; A child is considered an adult at 18 years old. the best interests of the child.

6.3 What is the duration of children orders (up to the age of 6.9 Is a welfare report prepared by an independent 16 or 18 or otherwise)? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? Custody and access orders do not operate once a child reaches the age of 18 years or marries. A court may order an assessment to report on the needs of the child and the ability and willingness of the parents to meet these needs by 6.4 What orders can the court make in relation to children? a qualified third party professional. The author of this report must Does the court automatically make orders in relation to child be appointed by the court prior to starting the assessment process arrangements in the event of divorce? and will typically be an independent mental health professional with experience in the area of family disputes. The court will consider the final assessment report prepared by this professional when A court can make custody and access orders (now called parenting making a decision about custody and access of a child. A court may orders under the Divorce Act). Access is the right to spend time also obtain the views and preferences of the child by way of a with a child and to make inquiries and be given information judicial interview or by appointing legal representation for the child. 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 joint custody 6.10 Is there separate representation for children in your to a child. A court can also make orders about the physical custody jurisdiction and, if so, who would represent them, e.g. a of a child. This physical custody can either be granted primarily to lawyer? one parent, or can involve a sharing of time between parents. Parents are free to reach their own agreement about the parenting arrangements following separation and this agreement will be An independent branch of the Ontario Government called the respected by the court so long as it accords with the best interests Office of the Children’s Lawyer provides legal representation to of the child. children and youth in child welfare and custody/access matters across the province. In custody/access cases, the court has the discretion to order legal 6.5 What factors does the court consider when making representation for the child under the Children’s Law Reform Act. orders in relation to children? 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 The primary consideration when making a decision in relation to child. This decision will be made based on the circumstances of the children is the best interests of the children in the circumstances. In case and available resources. Ontario, a court will consider the love, affection and emotional ties between the child and the parties, the child’s views and preferences, 6.11 Do any other adults have a say in relation to the and the ability and willingness of the parties to meet the needs of arrangements for the children? E.g. step-parents or the child. A court will also consider the willingness of a parent to grandparents or siblings. What methods of dispute resolution facilitate contact between the child and another parent. are available to resolve disputes relating to children? 6.6 Without court orders, what can parents do unilaterally? Any person including a grandparent or step-parent may apply for For example, can they take a child abroad? custody or access to a child. The parties may resolve parenting disputes by negotiation, mediation, arbitration or litigation. Without a court order or written agreement in place in respect of custody, parents may have difficulty unilaterally registering a child for 7 Children – International Aspects a school-related program, counselling or medical treatment absent proof of the consent of the other parent. A parent should not remove a child from the jurisdiction without the other parent’s 7.1 Can the custodial parent move to another state/country consent. without the other parent’s consent?

6.7 Is there a presumption of an equal division of time A custodial parent may move a child to another jurisdiction if the between separating or divorcing parents? other parent does not object despite notice or with a court order.

There is no set presumption in the law for an equal division of time 7.2 Can the custodial parent move to another part of the between separating or divorcing parents. state/country without the other parent’s consent?

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A custodial parent may move to another part of Ontario or another 7.6 How does your jurisdiction deal with abduction cases? Canadian jurisdiction if the other parent does not object despite For example, is your jurisdiction a party to the Hague notice or with a court order. Convention? 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 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 A court must consider the child’s best interests, considering: override any conflicting provincial legislation. ■ the reasons for the relocation; ■ the impact of the relocation on the child; 8 Overview ■ the amount of time spent by each parent with the child and level of involvement in the child’s life; ■ provision of notice of the relocation; 8.1 In your view, what are the significant developments in ■ existence of a court order, arbitral award or agreement with family law in your jurisdiction in the last two years? respect to the child’s place of residence; and ■ reasonableness of the proposal for parenting time following move and compliance with existing obligations under a court Ontario has introduced new parentage legislation in the Children’s order, arbitral award or agreement. Law Reform Act which conceives parenthood as derived from intention rather than biology. The statute now addresses assisted reproduction technology and diverse family forms with multiple 7.4 If the court is making a decision on a child moving to a parents. This year, the Divorce Act has been amended to modernize different part of the state/country, what factors are taken into parenting provisions and prescribe the relevant factors for relocation account? cases.

The factors are the same whether the proposed move is abroad or 8.2 What are some of the areas of family law which you think within Ontario or Canada. should be looked into in your jurisdiction?

7.5 In practice, how rare is it for the custodial parent to be Under Ontario’s current laws, unmarried spouses only have equitable allowed to relocate internationally/interstate? property claims and do not have access to the family property regime that applies to married spouses. This causes confusion and merits These cases are highly fact-driven. It is fairly common for relocation review. applications to be approved.

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Sarah Boulby advises clients located in Ontario and internationally on complex support, property and parenting issues. She negotiates agreements and represents clients in court at the trial and appellate level as well as in mediations and arbitrations. Sarah was named Best Lawyers Toronto Family Lawyer of the Year in 2019 and is recognized by Lexpert. Sarah is the President of the Canadian Chapter of the International Academy of Family Lawyers. Sarah is a member of the Law Alumni Association Council of the University of Toronto Faculty of Law and a director of the Toronto Lawyers’ Association. Sarah graduated from Queen’s University with an Honours Bachelor of Arts in 1986 and a Master of Arts in 1989. She graduated with an LL.B. from the University of Toronto in 1991. Sarah served as Law Clerk to Mr. Justice Peter Cory at the Supreme Court of Canada in 1991–1992. She was called to the Ontario Bar in 1993.

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

Oren Weinberg has practiced family law exclusively since 2005. He advocates for his clients when negotiating agreements, appearing before trial and appellate courts as well as in mediations and arbitrations. Oren handles all aspects of family law including property and support, custody and access. Oren acts for clients based in Ontario and internationally. Oren is a certified mediator. He was granted the FDRP mediation desig- nation by FDRIO. Oren is a Fellow of the International Academy of Family Lawyers and recognized by Best Lawyers. Oren graduated from York University with an Honours Bachelor of Arts 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 school. He graduated from the University of Western Ontario with an LL.B. in 2004. He was called to the Ontario Bar in 2005.

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

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

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Canada – Quebec Canada – Quebec

Pierre-Hugues Fortin

FSD Law Group Inc. Marie-Hélène Saad

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

An Application for Divorce must be instituted before the Superior 1.1 What are the grounds of jurisdiction for divorce Court of the province of Quebec. The Application may include proceedings? For example, residence, nationality, domicile, conclusions pertaining to corollary relief such as custody, child etc.? support, spousal support, partition of marital assets and property forming part of the matrimonial regime, compensatory allowance, etc. In the province of Quebec, the Superior Court has jurisdiction to hear The Application for Divorce, accompanied by a Summons, is served and determine a divorce proceeding if either spouse has been upon the Defendant. The Summons informs the Defendant of the ordinarily resident in said province for at least one year immediately options available to him, namely to negotiate a settlement, to preceding the commencement of the proceeding. participate in mediation sessions or a settlement conference presided by a judge, or to contest and cooperate in the establishment of a Case Protocol pertaining to the conduct of the proceeding. The Defendant 1.2 What are the grounds for a divorce? For example, is must provide an answer with respect to said options within the there a required period of separation, can the parties have an following 15 days of the service of the Application for Divorce, failing uncontested divorce? which a default judgment may be rendered against the latter. 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 a above-mentioned Summons. Within 20 days after said Protocol is breakdown of the marriage, which is established only if at least one filed, the court examines it to ensure that the guiding principles of of the following situations is proven: procedure are observed. It is presumed to be accepted by the court ■ one-year separation: the spouses have lived separate and apart for unless the parties are called, within that same 20-day period, to a case at least one year immediately preceding the determination of the management conference. divorce proceeding and were living separate and apart at the The Applicant is required to complete the case for trial within one commencement of the proceeding; year after the date on which the Case Protocol is accepted by the court ■ adultery: the spouse against whom the divorce proceeding is or is established in conjunction with or by the court. The Applicant brought has, since celebration of the marriage, committed must also, before that strict time limit expires, file a Request to have adultery; and the case set down for trial and judgment. It is to be noted that if the ■ physical or mental cruelty: the spouse against whom the divorce parties have not filed a Case Protocol, the above-mentioned one-year proceeding is brought has, since the celebration of the marriage, limit is counted from service of the Application of Divorce upon the treated the other spouse with physical or mental cruelty of such Defendant. kind as to render intolerable the continued cohabitation of the The Applicant who fails to file a Request to have the case set down spouses. for trial within the one-year strict time limit is presumed to have

discontinued his Application, unless the Defendant files such a 1.3 In the case of an uncontested divorce, do the parties need Request within 30 days after the expiry of the time limit. to attend court and is it possible to have a “private” divorce, i.e. Considering that it may take approximately two years from the without any court involvement? service of the Divorce Application before the accessory measures to the divorce are heard by the divorce trial judge, the Application for Divorce may include conclusions pertaining to provisional measures, No. The parties may settle all the consequences of their separation such as temporary orders pertaining to custody, child support, spousal and divorce in the form of a written agreement named “Consent to support and use of the family residence. Said measures are tried and Judgment”, which they sign and submit to the court, through their determined by preference. Moreover, the Application for Divorce attorneys or by filing the same in the court record, for approval and may include conclusions pertaining to safeguard of rights measures homologation. Proof is normally made by way of a Detailed for urgent matters, which may be heard very quickly, the evidence Affidavit. Exhibits and forms related to the divorce and to corollary being made by way of affidavits. relief must also accompany the Consent to Judgment in order for the If the case is uncontested or settled at any point during the instance, court to process the file. It is not possible to obtain a private divorce; assuming that the file is complete and that all required documents have the involvement of the court is necessary to pronounce the divorce been filed, due to the delays it normally takes at court to process a file, between the spouses. it may take approximately three months to obtain a divorce judgment.

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1.5 Can a divorce be finalised without resolving other matrimonial regime in the province of Quebec is the Partnership of Acquests (equal division of all property acquired during the marriage, associated matters? For example, children and finances. subject to certain exceptions and deductions).

When granting a divorce, the court rules on ancillary applications such 2.3 How does the court decide what financial orders to make? as applications relating to the custody, maintenance or education of the children or to child or spousal support. At the same time, or at a What factors are taken into account? later date, if warranted by the circumstances, the court rules on issues relating to the private regime of Family Patrimony and other The orders the court will make on patrimonial issues will mostly patrimonial rights arising from the marriage. depend on the requests presented by the parties. The court is bound to address issues of public order such as spousal/child support and 1.6 Are foreign divorces recognised in your jurisdiction? If so, the family patrimony. Where a court is considering an application for a child support order and an application for a spousal support order, what are the procedural requirements, if any? the court will give priority to child support in determining the applications. Child support is based on provincial/federal guidelines. For all purposes of determining the marital status of a person in The factors in the award of spousal support are the means, needs and Canada (married or divorced), a judgment of divorce rendered in a other circumstances of each spouse including the length of country other than Canada is generally recognised as of right in the cohabitation, the functions performed during cohabitation and any province of Quebec, without any process of exemplification, if either order, agreement or arrangement relating to support. Spousal support former spouse was ordinarily resident in that country for at least one orders should be awarded in order to meet four objectives of which year immediately preceding the commencement of proceedings for no one is predominant: recognise any economic advantages or the divorce. In the event of contestation pertaining to the judgment disadvantages to the spouses arising from the marriage or its break- of divorce rendered in a foreign country or in the event of a judgment down; apportion between the spouses any financial consequences of divorce which may include conclusions pertaining to the accessory arising from the care of any child of the marriage over and above any measures to a divorce (such as child custody, child support, obligation for the support of any child of the marriage; relieve any alimony/spousal support, division of assets, matrimonial regimes, gifts economic hardship of the spouses arising from the breakdown of the made in consideration of marriage, etc.), recognition and enforcement marriage; and, insofar as practicable, promote the economic self- may be granted by the Quebec authorities in conformity with articles sufficiency of each spouse within a reasonable period of time. 3155 et seq. of the or a specific law, upon Compensatory allowance orders are based on the contributions of one application to the court. spouse to the enrichment of the other spouse.

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

Yes. These two recourses are foreseen in our Civil Code of Quebec The court has much more discretion in rendering maintenance or at articles 493 et seq. and 380 et seq. compensatory orders, as opposed to orders pertaining to the primary regime of family patrimony and matrimonial regime, which are 1.8 Can divorce proceedings be stayed if there are governed by specific rules contained in the Civil Code of Quebec. proceedings in another country? 2.5 If a couple agrees on financial matters, do they need to Yes. Pursuant to section 3137 of the Civil Code of Quebec, a Quebec have a court order and attend court? authority may, on the application of a party, stay its ruling on divorce proceedings if another action, between the same parties, based on the It is possible for the spouses to submit to the court for approval, by same facts and having the same subject, is pending before a foreign filing a joint application, or separately a draft agreement that provides authority, provided that the latter action can result in a decision which a complete settlement of their joint/separate application for divorce. may be recognised in Quebec. Proof is normally made by way of detailed affidavits. However, when the court is asked to rule on an agreement, it makes sure that each 2 Finances on Divorce party has given its consent freely and that the agreement sufficiently protects the interests of the parties and the children. For that purpose, the court may convene and hear the parties. 2.1 What financial orders can the court make on divorce? 2.6 How long can spousal maintenance orders last and are Spousal/child support, provision for costs, partition of marital such orders commonplace? property (private regime of family patrimony), partition of property falling in matrimonial regime and entitlement to compensatory allow- ance. Spousal support can be ordered by way of periodic sums or lump sums. In the case of regular payments, the court may award spousal support for a fixed length of time, determine that no term needs to 2.2 Do matrimonial regimes exist and do they need to be be fixed, or until a specific event occurs and may impose terms, addressed by the court on divorce? Is there a default conditions or restrictions in connection with the order as it thinks fit matrimonial regime? and just. Spousal support awarded for an indefinite period is more common in a traditional, long-duration marriage. The established Yes. When granting a divorce, the court normally rules on issues jurisprudence requires that there be precise circumstances and real and relating to the patrimonial rights of the parties. However, if warranted concrete considerations to justify a court to impose a specific term to by the circumstances, this may be addressed at a later date. The default spousal support orders. It is not unusual for the Court of Appeal to annul spousal support orders rendered for a definite period.

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2.7 Is the concept of matrimonial property recognised in your 2.12 What methods of dispute resolution are available to jurisdiction? resolve financial settlement on divorce? E.g. court, mediation, arbitration? Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds Our new Civil Code of Procedure, which came into force on January a right of ownership of that property, subject to certain exceptions 1, 2016, provides that parties must consider private prevention and and deductions. The main components of the family patrimony are resolution processes before referring their dispute to the courts. The the residences of the family or the rights which confer use of them, main processes available for family law disputes are negotiation the moveable property furnishing or decorating the residences of the between the parties and mediation. The parties may also resort to any family and which serves for the use of the household, the motor other process that suits them and that they consider appropriate, vehicles used for family travel, the benefits accrued during the whether or not it borrows from negotiation or mediation (such as marriage under a retirement plan and the registered earnings, during collaborative law). Disputes over family matters may not be submitted the marriage, of each spouse pursuant to the Act respecting the to arbitration in the province of Quebec. Quebec Pension Plan or similar plans. Any assets which do not fall under the family patrimony will be treated in conformity with the 3 Marital Agreements matrimonial regime applicable to the parties.

2.8 Do the courts treat foreign nationals differently on 3.1 Are marital agreements (pre and post marriage) divorce, if so, what are the rules on applicable law? Can the enforceable? Is the position the same if the agreement is a court make orders applying foreign law rather than the law of foreign agreement? the jurisdiction? Yes, as long as the marital agreements respect the imperative No; however, section 3123 of the Civil Code of Quebec provides that provisions of law and public order, and that they are established by a in certain circumstances, the matrimonial regime of spouses who have notarial act en minute, on pain of absolute nullity. In the case of a not entered into matrimonial agreements may be governed by the law foreign agreement, it must respect the imperative provisions of the of the common nationality of the spouses: “Article 3123: The Quebec Law and public order to be enforceable. matrimonial or regime of spouses who have not entered into matrimonial or civil union agreements is governed by the law of 3.2 What are the procedural requirements for a marital the state in which they have their domicile at the time of the marriage agreement to be enforceable on divorce? or civil union. If the spouses are at that time domiciled in different states, the applicable law is the law of their first common residence or, Any claim based on the Marriage Contract must be included in the failing that, the law of their common nationality or, failing that, the conclusions sought in the Application for Divorce, and a certified true law of the place of solemnization of their marriage or civil union.” copy of the Marriage Contract must be filed in court in support of

the claims pertaining to said contract, the whole in conformity with 2.9 How is the matrimonial home treated on divorce? the formalities required to establish the validity of an exhibit. The other side may contest its origin or integrity. Moreover, the Marriage The court may award the right of use of the family residence to the Contract drafted in a language other than French or English must be spouse to whom it awards custody of a child. The award of the right accompanied by a translation certified in Quebec. Once the marital of use is effected, failing agreement between the parties, on the agreement is entered into evidence, the Court ensures that it does not conditions determined by the court and, in particular, on condition of go against the imperative provisions of law and public order. payment in cash or by instalment. Ultimately, the family residence is subject to the rules of the primary regime of family patrimony. 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or are they 2.10 Is the concept of “trusts” recognised in your limited to the election of the matrimonial property regime? jurisdiction? If so, how? In the province of Quebec, Marital Agreements are called “Marriage Yes. Sections 1260–1298 of the Civil Code of Quebec provide the Contracts” and are normally limited to the election of the matrimonial rules pertaining to trusts. property regime. Spouses can enter into a Marriage Contract to choose a matrimonial regime such as Separation as to Property or 2.11 Can financial claims be made following a foreign create a regime that meets their particular needs subject to the divorce in your jurisdiction? If so, what are the grounds? imperative provisions of law and public order. For example, in the Marriage Contract, one cannot renounce in advance to the application of the provisions pertaining to the primary regime of Family Yes. In Canada, a court in a province has jurisdiction to hear and Patrimony. Future spouses and spouses can also provide, in the determine a corollary relief proceeding if either former spouse is Marriage Contract, for gifts such as property or money, to the other ordinarily resident in the province at the commencement of the spouse or to the children. Provisions pertaining to future custody, proceedings; or both former spouses accept the jurisdiction of the child support, spousal support and maintenance are not included in a court. Marriage Contract and if so, would not be enforceable, although said provisions may be taken into consideration at time of the divorce.

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4 Cohabitation and the Unmarried Family income of both parents is considered as well as the custody time of both parents and the number of children. The second set of guidelines, the Federal Child Support Guidelines, is applicable in cases 4.1 Do cohabitants, which do not have children, have financial where spouses are married, living in different Canadian provinces or where one spouse lives in Canada and the other in a foreign country. claims if the couple separate? What are the grounds to make a According to these federal guidelines, only the income of the payer financial claim? spouse is taken into account for the determination of the basic amount of child support. Under the law of other Canadian provinces, de facto spouses may owe According to the Act to facilitate the payment of support, the each other support, after a certain number of years of cohabitation, Minister of Revenue of Quebec (government) collects child support generally after two years. This is not the case in the province of from the payor and remits same to the beneficiary, without charge to Quebec where only married or civil union spouses are entitled to the recipient. support. 5.3 For how long is a parent required to pay child 4.2 What financial orders can a cohabitant obtain? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? De facto spouses are not entitled to support unless stipulated otherwise in a cohabitation and separation contract, which is enforceable by the Child support is payable at least until the child turns 18. However, a courts. Such contracts can also address issues related to partition of child of full age who is not able to support himself, by reason of accumulated assets, debts and ownership of immoveables co-owned illness or disability, or because he is pursuing full-time studies, may be by the cohabitants. Moreover, a de facto spouse may have recourse for entitled to child support. Unjust Enrichment against his de facto spouse according to articles 1493 et seq. of the Civil Code of Quebec article 1493: “A person who is enriched at the expense of another shall, to the extent of his enrich- 5.4 Can capital or property orders be made to or for the ment, indemnify the other for the latter’s correlative impoverishment, benefit of a child? if there is no justification for the enrichment or the impoverishment.” Normally, support is payable as a pension; however, the court may, by 4.3 Is there a formal partnership status for cohabitants (for way of exception, replace or complete that support by a lump sum example, civil partnerships, PACS)? payable all at once or by instalments. The court may also require that the amount payable be paid or secured, or paid and secured, in the manner specified in the order. The court may also order the No. However, at the time of separation, de facto spouses may partition constitution of a trust to secure such payment. Under the Federal the earnings registered in their respective name according to the Guidelines, when the debtor’s income is over $150,000 and if the Quebec Pension Plan, provided that certain conditions are met. Also, amount provided for in the child support guidelines exceeds the daily in the case of a surviving de facto spouse, he or she may receive the needs of a child, the court may make a deduction from said mainten- surviving spouses’ pension upon the death of the latter. ance for future needs and order the constitution of a trust accordingly for the benefit of the child. Under the Provincial Guidelines, said 4.4 Are same-sex couples permitted to marry or enter other deduction may be made when the parents’ disposable income exceeds formal relationships in your jurisdiction? $200,000.

As of July 2005, same-sex partners can marry in Canada. 5.5 Can a child or adult make a financial claim directly against their parents? 5 Child Maintenance It is possible for the adult child to petition the court directly for the request of support payments. In divorce cases, the adult child must 5.1 What financial claims are available to parents on behalf of act within the divorce file already opened by his parents and not in a children within or outside of marriage? separate file. In cases of Separation as to Bed and Board or when the parents are de facto spouses, the adult child has a separate recourse as Whether children are born issue from a marriage or not, they are to legal proceedings in relation to that of his parents, and entitled to child support from their parents. For married couples, any consequently, he may introduce a demand for alimentary support child for whom they both stand in the place of parents as well as any under a separate court file number. As for minor children, the request child of whom one is the parent and for whom the other stands in the for support is normally made by the creditor parent. place of a parent (in loco parentis), is considered a child of the marriage and is entitled to child support. 6 Children – Parental Responsibility and Custody 5.2 How is child maintenance calculated and is it administered by the court or an agency? 6.1 Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried? In Quebec, child support is determined in virtue of mandatory guidelines based on the income of the parties. Two different guidelines are applicable in the province of Quebec: the Regulation Married or de facto spouses have the same rights regarding parental Respecting the Determination of Child Support Payments when the parents responsibility and custody. A child remains subject to the authority of are not married or when both parents (married or not) are living in the his father and mother until his majority. Both parents exercise parental province of Quebec. According to these provincial guidelines, the authority together, giving them the right to decide on all issues concerning the well-being of the child. In the event of a break-up,

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

Custodial orders end at 18 years old. 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a 6.4 What orders can the court make in relation to children? lawyer? Does the court automatically make orders in relation to child arrangements in the event of divorce? The court, even on its own initiative, may order representation for a child by a lawyer, if necessary, to safeguard the rights and the interest of the child. The court can award sole custody to a parent, with basic or extended visiting rights to the other parent. The court can also award shared custody to both parents. To be qualified as shared custody, one parent 6.11 Do any other adults have a say in relation to the needs to have at least 40% of the custodial time. In the event of a arrangements for the children? E.g. step-parents or divorce, the court must rule on applications relating to the custody, grandparents or siblings. What methods of dispute resolution maintenance or education of the children. are available to resolve disputes relating to children?

6.5 What factors does the court consider when making orders At this time, aside from the in loco parentis parents, and the parents (or in relation to children? the person having parental authority), no other adults have a say in relation to the arrangements for children. However, these other adults The main factor is the superior interest of the child. The court will and their relationship with the child may be considered when deter- give consideration to the moral, intellectual, emotional and physical mining and assessing what is in the best interest of a child. The Civil needs of the child as well as the child’s age, health, personality, family Code of Procedure of Quebec provides for mediation in course of environment and any other aspects of this situation. family law proceedings. The court may, at any time, stay the proceeding or adjourn the trial to enable the parties to enter into or 6.6 Without court orders, what can parents do unilaterally? continue mediation. Moreover, settlement conference presided by a judge is available to help the parties resolve their differences. For example, can they take a child abroad?

7 Children – International Aspects Both parents need to consult each other on all issues relating to their child, including the question of travelling or where the child should live. In the event of a disagreement, any of the parents may refer the 7.1 Can the custodial parent move to another state/country matter to the court. without the other parent’s consent?

6.7 Is there a presumption of an equal division of time The custodial parent requires the consent of the other parent to move between separating or divorcing parents? a child to another province or country if the visiting rights would be affected by relocation. In situations where the visiting rights of the There is no such presumption applied by the courts in the province non-custodial parent would be affected by the projected relocation, of Quebec. this would normally be considered a major change in circumstances allowing the court to revisit the initial custody order. 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? 7.2 Can the custodial parent move to another part of the state/country without the other parent’s consent? Yes, all issues relating to parental responsibility and custody are governed by the same principles, whether the child is born issue of The custodial parent requires the consent of the other parent to move married parents or not. However, child support may be governed by a child to another province or country if the visiting rights would be different guidelines in divorce cases in situations where parents are not affected by relocation. In situations where the visiting rights of the both living in the province of Quebec. non-custodial parent would be affected by the projected relocation, this would normally be considered a major change in circumstances allowing the court to revisit the initial custody order.

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7.3 If the court is making a decision on relocation of a child said violence on the best interests of the child and in making appropriate parenting arrangements; abroad, what factors are taken into account? ■ introducing guidelines with respect to relocation requests including specific factors to be considered in determining whether the child The judge must embark on a fresh inquiry into what are the best inter- should relocate with a parent and the burden of proof in various ests of the child, having regard to all the relevant circumstances related circumstances; and to the child’s ability of the respective parents to satisfy them. The ■ increasing the access to the family law system by encouraging the inquiry does not begin with a legal presumption in favour of the use of alternative dispute resolution services such as mediation, by custodial parent, although the custodial parent’s views are entitled to offering child support administration services and recalculation great respect. More particularly, the judge should consider, inter alia: services, etc. existing custody/access arrangements and the relationship with the However, these amendments would not be applicable to children other parent; desirability of maximising contact; view of the child; the who are not born issue from a marriage, which is more than unfor- custodial parent’s reasons for moving (only in the exceptional case tunate as, in Quebec, 60% of children are born issue from a de facto where it is relevant to that parent’s ability to meet the needs of the relationship. These amendments would thus create two different legal child); disruption to the child of a change in custody; and consequent systems for children, which seems unfair. disruption to the child on removal of family, schools and the Bill C-78 also amends the Family Orders and Agreements community he/she has come to know. Enforcement Assistance Act to, among other things: ■ allow the release of information to help obtain and vary a support 7.4 If the court is making a decision on a child moving to a provision; different part of the state/country, what factors are taken into ■ expand the release of information to other provincial family justice government entities; account? ■ permit the garnishment of federal moneys to recover certain expenses related to family law; and The answer is the same as question 7.3 above. ■ extend the binding period of a garnishee summons. It also amends those two above-mentioned Acts to implement the 7.5 In practice, how rare is it for the custodial parent to be Convention on Jurisdiction, Applicable Law, Recognition, Enforcement allowed to relocate internationally/interstate? and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996 as well as the Convention on the International Recovery of Each case turns on its own unique circumstances. The only issue that Child Support and Other Forms of Family Maintenance, concluded at will be taken in consideration by the court is the best interests of the The Hague on November 23, 2007. child in the particular circumstances of the case. Bill C-78 also amends the Garnishment, Attachment and Pension Diversion Act to, among other things, give priority to family support 7.6 How does your jurisdiction deal with abduction cases? For obligations and simplify the processes under said Act. example, is your jurisdiction a party to the Hague Convention? Finally, Bill C-78 also includes transitional provisions and makes consequential amendments to the Criminal Code.

Canada is a party to the 1980 Hague Convention. It has been applied to Quebec since January 1, 1985, the date that the Act respecting the 8.2 What are some of the areas of family law which you think civil aspects of international and interprovincial child abduction came should be looked into in your jurisdiction? into force. In the province of Quebec, maintenance obligations exist only 8 Overview between married or civil union spouses. De facto spouses are not covered by the obligation of support contained in our Civil Code. In 2013, a government-mandated committee was created in order 8.1 In your view, what are the significant developments in to determine how Quebec family law should be reformed. A report family law in your jurisdiction in the last two years? containing 82 recommendations was completed in 2015, including many recommendations to reform the current laws for unmarried On May 22, 2018, the Federal Minister of Justice introduced Bill C- couples. Among the recommendations is a mandatory parental regime 78, an act that proposes amendments to legislation relevant to Family that would apply to de facto spouses. This regime would set out Law, including to the Divorce Act. On June 21, 2019, said Bill was obligations towards children born during de facto unions as well as assented to. The amendments represent the first substantive update between parents following a separation. Support between de facto in nearly 25 years, namely since the latest reform of the Divorce Act spouses in the province of Quebec would remain impossible, but in 1985. financial compensation to the other de facto spouse would be possible The proposed amendments to the Divorce Act are aimed at if a child/children is born out of the relationship (child-centred ensuring that the best interests of children whose parents are divorcing approach). The report suggests that a parent at an economic are protected. The proposed amendments emphasise on the disadvantage due to the end of the relationship would have the right following: to claim compensation for time spent taking care of children instead ■ modernising the traditional language to be more neutral and less of pursuing a career. This compensation would be a fixed amount adversarial, for example replacing “custody” and “access” with and not alimony paid by the former de facto spouse. “parenting time” and “decision-making responsibility”; The rights between de facto spouses in the province of Quebec will ■ providing more guidance in determining the “best interests of the evolve according to political will. Unfortunately, the committee’s child” by enumerating non-exhaustive specific factors that a court report was shelved and the proposed family law reform has not must consider in determining the best interest of a child; progressed since. ■ introducing a definition of “family violence” and a list of factors Also, a public consultation took place during the months of May to be taken into account by the court in considering the impact of and June 2018 in order to determine if current family laws are relevant to modern Quebec couples and families. This public consultation was

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an initiative of the Chambre des notaires du Québec and the final The consultation was based, among other things, on the report was made public on September 11, 2018. recommendations proposed by the above-mentioned 2015 report. From March 15, 2019 to June 28, 2019, the Quebec government Following the consultation, the Minister of Justice intends to table launched a public consultation to seek the opinion of the population two bills in the National Assembly, one on filiation and one on with respect to modernising family law to adapt it to the new realities conjugal relationships, in order to carry out the reforms that will be of families. The consultation focused specifically on three areas of deemed appropriate. discussion, namely parenthood, conjugal relationships and relation- ships with step-parents. Matters pertaining to filiation will be discussed later.

Pierre-Hugues Fortin was admitted to the Bar of Quebec in 1999 and his areas of practice are Personal Rights Law, Divorce and Family Law, International Abduction Law and Estate Law. Me Fortin practices Divorce and Family Law on a provincial and international level. He is a member of the Montreal Bar, Quebec Bar, the Canadian Bar Association and the Association of Family Lawyers of the province of Quebec (AAADFQ). Me Fortin is a Fellow of the International Academy of Family Lawyers (IAFL – Vice-President). He has worked on a variety of cases involving clients ranging from the average person, to professional athletes and managers, international celebrities and other high-profile cases involving substantial assets and complex financial situations.

FSD Law Group Inc. Tel: +1 514 507 5272 204 Notre-Dame West, Suite 300 Email: [email protected] Montreal URL: www.fsdlawgroup.com Quebec H2Y 1T3 Canada

Marie-Hélène Saad was admitted to the Bar of Quebec in 2007 and primarily practices Family Law. She is a member of the Montreal Bar, the Young Bar Association of Montreal, the Quebec Bar, the Canadian Bar Association and the Association of Family Lawyers of the Province of Quebec. Me Saad’s areas of practice include divorce, separation, partition of patrimonial and matrimonial property, child custody, parental alienation, child support, alimentary support to adult children, spousal support, modification of orders and actions relating to the contestation or establishment of filiation. 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. Tel: +1 514 507 5272 204 Notre-Dame West, Suite 300 Email: [email protected] Montreal URL: www.fsdlawgroup.com Quebec H2Y 1T3 Canada

FSD Law Group Inc. is committed to resolving their clients’ legal disputes Solutions aiming at resolving family-related conflicts; Validity of inter using the highest ethical standards. Excellence, efficiency, commitment, vivos/mortis causa gifts; Revocation of gifts in account of ingratitude; Validity dedication and integrity are the main values adhered to by our Firm. FSD Law of wills and legacies; Disputes concerning the liquidation of the succession Group Inc. is offering services in the following areas: Child Custody/ and/or functions performed by the liquidator of the succession; and Residence/Visitation/Contact; Child Support; Divorce; Finance: Capital Unworthiness of . Provision; Finance: Property Issues; Hague Convention/Child Abduction; www.fsdlawgroup.com 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 person of full age; Tutorship/ Curatorship to person of full age; Administration of Tutors/Property of Others;

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England & Wales England & Wales

Kingsley Napley LLP Charlotte Bradley

1 Divorce 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, domicile, No. The first decree of divorce, decree nisi, is pronounced in open etc.? court but the parties do not need to attend. The second and final decree of divorce, decree absolute, is sent out to both parties on paper. Jurisdiction to commence divorce proceedings in England and Wales It is not possible to have a “private” divorce, all divorces need to be is established under European Council Regulation no. 2201/2003 processed through the Court. (Brussels II). The Courts of England and Wales will have jurisdiction for divorce proceedings where: 1.4 What is the procedure and timescale for a divorce? ■ the habitual residence of both spouses is in England and Wales; ■ the last habitual residence of both spouses was England and Wales and one spouse still resides there; A divorce petition/application is issued and served on the ■ the respondent’s habitual residence is in England and Wales; respondent. The respondent completes an acknowledgment of ■ the applicant’s habitual residence was in England and Wales for service which is returned to the Court. The applicant can then apply at least one year immediately before the application is made; for the first decree of divorce, decree nisi. Six weeks and one day after ■ the applicant’s habitual residence was in England and Wales for decree nisi, the applicant can apply for decree absolute. at least six months and he/she is domiciled in England and In an uncontested divorce, subject to court delays, the process Wales; takes 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 to acknowledgment of service, the timescale will be longer. Brussels II) has jurisdiction for divorce proceedings, jurisdiction can be based on the domicile* in England and Wales of one of 1.5 Can a divorce be finalised without resolving other the spouses. associated matters? For example, children and finances. *Note that domicile is a UK concept and does not mean residence. Yes. Children and financial issues are addressed separately to the divorce in England and Wales and there is no requirement for the 1.2 What are the grounds for a divorce? For example, is Court to be involved in either aspect before the decree absolute (the there a required period of separation, can the parties have an final step in the divorce) can be granted. uncontested divorce? 1.6 Are foreign divorces recognised in your jurisdiction? If There is one ground for divorce in England and Wales; the irretriev- so, what are the procedural requirements, if any? able breakdown of the marriage. This ground is then proven with reference to one of five facts: Yes, in certain circumstances. The rules are set out in the Family ■ the respondent’s adultery (with a person of the opposite sex); Law Act 1986 and, as between EU Member States (not Denmark), ■ the respondent’s unreasonable behaviour; in Brussels II. ■ the parties’ separation for two years or more, with the As between EU Member States, a judgment, i.e. divorce in a respondent’s consent; Member State is recognised by other Member States without a ■ the parties’ separation for five years or more (no consent special procedure. required); or As between non-EU countries, the Family Law Act 1986 distin- ■ the respondent’s desertion of the applicant for a period of at guishes between “proceedings” and “non proceedings” divorces. least two years. An overseas divorce obtained by proceedings is recognised if the Divorces can proceed uncontested and usually do, although we do divorce is effective under the law of the country where it was not yet have “no-fault” divorce unless the parties have been separ- obtained and either party to the marriage was habitually resident, ated for at least two years and both consent to a decree of divorce. domiciled or a national of the country of divorce.

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

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

It is not obligatory to have a court order but it is advisable to ensure 2.2 Do matrimonial regimes exist and do they need to be the parties’ agreement is recorded and that financial claims are addressed by the court on divorce? Is there a default dismissed to avoid either party applying for financial provision in the matrimonial regime? future (which they can do even though they are divorced). The parties do not usually need to attend court for their agreement to be There is no concept of matrimonial regimes under the law of approved by the Court. A “Consent Order” recording their agree- England and Wales and there is, therefore, no default regime. Other ment is lodged at court for approval by a Judge who will consider countries believe that we have a “separation of property” regime as the fairness of the order and the parties’ financial circumstances. spouses are treated separately during the marriage, i.e. they are not automatically responsible for the other’s debts, but we do not have 2.6 How long can spousal maintenance orders last and are property regimes. such orders commonplace?

2.3 How does the court decide what financial orders to Spousal maintenance orders are commonplace, particularly where make? What factors are taken into account? 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 capital.

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Spousal maintenance orders can be for any duration including for Yes. Following a foreign (proceedings) divorce, either party has a the parties’ joint lives (i.e. until the death of either party). A potential claim in England and Wales if he/she can come within the common term of spousal maintenance is until the children reach provisions under the Matrimonial and Family Proceedings Act 1984. maturity or cease full-time education. Spousal maintenance orders Remarriage prevents a claim by that party. Permission of the Court automatically come to an end when the recipient remarries. is required to make a claim. The Court has jurisdiction in the Cohabitation is a relevant factor but will not automatically bring an following circumstances: end to spousal maintenance orders. England and Wales are ■ if either party was domiciled in England and Wales on the date considered generous in terms of their approach on maintenance but of application or date of divorce; the Court’s approach to whether a term order or joint lives order ■ if either party was habitually resident in England and Wales for should be made can vary across the country. the period of one year before the application or the date of divorce; and 2.7 Is the concept of matrimonial property recognised in ■ if either or both parties had, at the date of application, a beneficial interest in possession in a property in England which your jurisdiction? was at some time during the marriage a matrimonial home. The Court will consider whether it is appropriate to make an order Yes, even though we do not have formal property regimes, the Court in England and Wales with regards to: deals with concepts of matrimonial and non-matrimonial property ■ the connection which the parties have to England and Wales; (property brought into the marriage or inherited from third parties) ■ the connection with the country of divorce and any other and can treat them differently when deciding what orders to make. country; Generally, non-matrimonial property is brought into account only if ■ any financial benefit already received/likely to be received as a it is required to meet both parties’ needs. consequence of the divorce; ■ the extent to which any foreign order has been complied with; 2.8 Do the courts treat foreign nationals differently on ■ any right which the applicant has to apply for financial relief divorce, if so, what are the rules on applicable law? Can the outside of England and Wales; ■ the availability of property in England and Wales and the extent court make orders applying foreign law rather than the law of to which any order is likely to be enforceable; and the jurisdiction? ■ the length of time which has elapsed since the divorce.

No. In family law, England and Wales operates on the basis of Lexi 2.12 What methods of dispute resolution are available to Fori (law of the forum) and will not apply foreign law. Only English resolve financial settlement on divorce? E.g. court, law will be applied by the English Court. mediation, arbitration? 2.9 How is the matrimonial home treated on divorce? The parties can agree a financial settlement themselves, engage in a court process, or use other dispute resolution methods of mediation, The English Court will consider all financial resources, whether they collaborative law, private judging or arbitration. are in joint or sole names. In English law we have concepts of “matrimonial” and “non-matrimonial” property. The matrimonial home is treated differently to other assets and will often be treated 3 Marital Agreements as matrimonial property whatever its origins (although that does not necessarily mean an equal division of the property). In the case of 3.1 Are marital agreements (pre and post marriage) Miller v McFarlane [2006] UKHL 24; [2006] 2 A.C. 618 Lord Nicholls enforceable? Is the position the same if the agreement is a said: “The parties’ matrimonial home, even if this was brought into the marriage foreign agreement? at the outset by one of the parties, usually has a central place in any marriage. So, it should normally be treated as matrimonial property for Marital agreements are not automatically enforceable in England and this purpose. As already noted, in principle the entitlement of each party Wales and there is no provision in our statute to provide for the to a share of the matrimonial property is the same however long or short enforceability of such agreement. The jurisdiction of the Court of the marriage may have been.” England and Wales to order financial provision on divorce cannot be ousted by the parties’ agreement. However, our case law has 2.10 Is the concept of “trusts” recognised in your developed rapidly over the last six years and as a result of the UK jurisdiction? If so, how? Supreme Court case of Radmacher v Granatino [2010] UKSC 42, the case law now says that the Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreci- Yes. English law recognises Trusts (where property is held by one ation of its implications unless, in the circumstances prevailing, it party for the benefit of another) and they regularly appear in divorce would not be fair to hold the parties to their agreement. proceedings. The English Court can take into account available When deciding whether it is fair to hold the parties to a pre- resources from a Trust (interest in a Trust and distributions/income nuptial agreement at the time of the divorce, the burden is now on from a Trust). The English Court has power to vary a Trust insofar the person seeking to set aside the agreement and a number of as it is a nuptial settlement capable of variation s24(c) Matrimonial factors have been identified as relevant. For example, the parties Causes Act 1973. The Court can also join Trustees to financial must enter into the agreement of their own free will. Duress or proceedings on divorce. undue pressure could reduce the weight that is given to the agree- ment and could even negate it completely. The Court will look at 2.11 Can financial claims be made following a foreign the parties’ circumstances at the time the agreement was entered into divorce in your jurisdiction? If so, what are the grounds? (age, maturity and emotional state) in considering whether the parties understood the implications of the agreement and whether they

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intended it to be effective. Whether the parties obtained independent claims in relation to an interest in property which they can make legal advice and the level of financial disclosure will also be relevant. under the Trusts of Land and Appointment of Trustees Act 1996. Any children of the marriage remain an overriding consideration and the terms of the agreement (with particular attention on needs) 4.2 What financial orders can a cohabitant obtain? should still result in a “fair” outcome. The closer the effect of an agreement to an outcome that the Court would find to be fair, with needs met, the more likely it is to be upheld in the future but the Under the Trusts of Land and Appointment of Trustees Act, a agreement does not need to mirror what the Court would award if cohabitee can apply for: there had been no agreement. ■ a declaration in relation to the extent of a person’s interest in The position in relation to a foreign agreement will depend on the property; and circumstances of the case but all of the above considerations will be ■ an order for sale in relation to the property. relevant and, in particular, the Court will look at the parties’ If there is a child, the cohabitant can make claims for the benefit intentions at the time of the agreement. For example, was the of the child under Schedule 1 of the Children Act 1989 (see section foreign agreement a full agreement dealing with future claims in the 5 below). event of a divorce or a simple contract to choose the couple’s property regime which does not mention a future separation? 4.3 Is there a formal partnership status for cohabitants (for For further details of the English Court’s approach to foreign example, civil partnerships, PACS)? agreements see Chapter 1 of this guide, International Marital Agreements – the Approach by the English Court on Divorce, by Charlotte In England and Wales, we allow civil partnerships for homosexual Bradley. couples but not for heterosexual couples. There is pressure on the

Government to change the law to allow civil partnerships for all 3.2 What are the procedural requirements for a marital couples and reform may well follow. Civil partners are entitled to agreement to be enforceable on divorce? the same financial protection as married spouses in divorce.

There are no procedural requirements because the agreement is not 4.4 Are same-sex couples permitted to marry or enter other automatically enforceable, but Law Commission and case law formal relationships in your jurisdiction? guidance confirms that certain safeguards should be in place to assist with the enforceability of such an agreement: Yes. The Marriage (Same Sex Couples) Act 2013 was passed on 17 ■ each party should have independent legal advice on the terms July 2013 and the first marriages of same-sex couples took place on and effect of the agreement; 29 March 2014. Same-sex couples can also enter into formal civil ■ the agreement should be entered into 28 days before the partnerships under the Civil Partnership Act 2004 which came into wedding; and force on 5 December 2005 (the Civil Partnership Act is now in the ■ each party should give material disclosure of their financial process of being extended to include opposite-sex couples following circumstances. the Supreme Court’s 2018 decision that limiting the provision of the As these guidelines are not yet in statute, an agreement can still be Civil Partnership Act 2004 to same-sex couples was incompatible upheld without those safeguards. with the European Convention on Human Rights). While there are currently no specific procedural requirements for an agreement to be enforceable, the agreement will be considered as part of the overall financial case on divorce and its enforceability will 5 Child Maintenance depend on the facts of the case (see question 3.1 above). 5.1 What financial claims are available to parents on behalf 3.3 Can marital agreements cover a spouse’s financial of children within or outside of marriage? claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property Parents can make income/maintenance and capital claims on behalf regime? of children under s15 and Schedule 1 to the Children Act 1989 (known as Schedule 1 claims). Capital claims are limited to Yes, marital agreements routinely deal with a spouse’s financial housing/settlement of property claims (returned to the payer when claims, for both capital and maintenance. As we do not have the child reaches majority) and lump sum claims to cover capital matrimonial property regimes in our jurisdiction, a pre or post agree- expenditure for the child. Claims for legal costs can also be made. ment would rarely elect a matrimonial property regime (only if it was required for example to assist in enforceability in another 5.2 How is child maintenance calculated and is it jurisdiction). administered by the court or an agency?

4 Cohabitation and the Unmarried Family Child maintenance will be determined either by the Child Maintenance Service (CMS) or by the Court. If the CMS has 4.1 Do cohabitants, which do not have children, have jurisdiction to deal with an application for child maintenance, the Court will not interfere unless the parties agree to an order of the financial claims if the couple separate? What are the grounds Court. The CMS will not have jurisdiction if one parent is abroad to make a financial claim? and the Court will also have jurisdiction if the payer earns in excess of the maximum assessment. Cohabitants, especially without children, have very limited financial The rates of child maintenance are determined under the 2012 claims in England and Wales. Their financial claims are limited to child maintenance scheme (nil rate, flat rate, reduced rate, basic rate and default rate) depending on gross income. Child maintenance is

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calculated on a percentage of gross salary basis. The calculations are 6.2 At what age are children considered adults by the court? complicated and depend on various scenarios but there is an online calculator at: http://www.cmoptions.org/en/calculator/. The maximum amount of gross weekly income that can be taken Children are considered adults by the Court at age 18. into account when the CMS calculates maintenance is £3,000. If the Court makes an award of child maintenance under 6.3 What is the duration of children orders (up to the age of Schedule 1 it will consider the CMS calculation but can make a 16 or 18 or otherwise)? top-up award over and above the CMS rates with regard to a number of factors far wider than the CMS formula. It can take into account Normally, until a child reaches age 16 but in exceptional cases until the carer’s own expenditure when making the child maintenance the age of 18. order. As such, in high-net-worth cases where the parties are not married, child maintenance awards can be significant. 6.4 What orders can the court make in relation to children? Does the court automatically make orders in relation to child 5.3 For how long is a parent required to pay child arrangements in the event of divorce? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? The Court can make Child Arrangements Orders in relation to the following: Normally, until the age of 18/end of secondary education but the ■ where the child is to live (previously called residence) including Court can specify a later date, usually when the child has completed shared residence; a first degree at university. ■ where and when the child will spend time with another parent A child can apply for child maintenance for him/herself in certain (previously called contact); circumstances (e.g. for university education). ■ specific issues, e.g. religion, schooling, change of name; and

■ prohibited steps, for example prohibiting travel. 5.4 Can capital or property orders be made to or for the The Court can also make parental responsibility orders and benefit of a child? declarations of parentage in relation to a child, as well as parental orders (in surrogacy cases) and adoption orders. Yes; as set out above, the Court can order capital and housing for The Court does not automatically make orders in relation to a the benefit of a child. Property orders will only last for the child’s child following divorce proceedings. We have a “no order principle” dependence and will then revert to the payer. The Court does not whereby the Court will only make an order in relation to a consider children are entitled to capital themselves unless there are child/children where necessary. Both parents retain parental exceptional circumstances (e.g. severe disability requiring long-life responsibility following a divorce. care). 6.5 What factors does the court consider when making 5.5 Can a child or adult make a financial claim directly orders in relation to children? against their parents? The child’s welfare is the Court’s paramount consideration. A court Yes, in limited circumstances; i.e. for children over the age of 16 and has regard, in particular, to: in education. ■ the ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding); ■ his/her physical, emotional and educational needs; 6 Children – Parental Responsibility and ■ the likely effect on him/her, of any change in his/her circum- Custody stances; ■ his/her age, sex, background and any characteristics of his/hers which the Court considers relevant; 6.1 Explain what rights of custody both parents have in your ■ any harm which he/she has suffered or is at risk of suffering; jurisdiction whether (a) married, or (b) unmarried? ■ how capable each of his/her parents, and any other person in relation to whom the Court considers the question to be The birth mother and a married father will always have parental relevant, is of meeting his/her needs; and responsibility for a child and retain it after divorce. Parental ■ the range of powers available to the Court under the Children responsibility means all the rights, duties, powers, responsibilities and Act 1989 in the proceedings in question. authority which, by law, a parent has in relation to the child and his/her property. This means that both parents need to agree on the 6.6 Without court orders, what can parents do unilaterally? important decisions in the child’s life (e.g. education) and one parent For example, can they take a child abroad? needs the other’s agreement to take them out of the jurisdiction, even if for a holiday. An unmarried father will have parental responsibility: Without a court order, a parent cannot take a child abroad without ■ if he is registered on the birth certificate (after 1 December the consent of the other parent with parental responsibility. Any 2003); significant decisions in relation to the child’s upbringing will need to ■ if he and the mother make a parental responsibility agreement; be taken by both parents together, or in default of agreement, by the ■ if the Court orders that he should have parental responsibility; Court. and ■ following fertility treatment under the provisions of the Human 6.7 Is there a presumption of an equal division of time Fertilisation and Embryology Act 2008. between separating or divorcing parents?

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There is no presumption of an equal division of time, but there is a remove the child from the jurisdiction for a period of less than one presumption that the child will spend time with both parents. month without the other parent’s consent (s13(2) Children Act 1989).

6.8 Are unmarried parents treated in the same way as 7.2 Can the custodial parent move to another part of the married parents when the court makes orders on separation state/country without the other parent’s consent? or divorce? Please see the answer to question 7.1. Yes, assuming the parents both have parental responsibility. 7.3 If the court is making a decision on relocation of a child 6.9 Is a welfare report prepared by an independent abroad, what factors are taken into account? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? Relocation applications (or “leave to remove” applications) are subject to the welfare principle (s1(1) Children Act 1989) which dictates that the child’s welfare is the Court’s paramount consideration. A welfare report is prepared, if ordered by the Court, by a court- Until recently, the leading authority on relocation was the case of appointed social worker (usually from the Children and Family Court Payne [2001] EWCA Civ 166. Under this precedent the Court Advisory and Support Service (CAFCASS)). The CAFCASS officer considered the following: (or independent social worker) will meet the child and report to the ■ the welfare of the child; Court. Many parents agree to appoint (and pay for) an Independent ■ whether the application was genuine; and Social Worker (ISW), instead of CAFCASS, routinely to avoid delay ■ the impact on the applicant of a refusal. and to choose an experienced professional their lawyers know. A The Court in Re TC and JC (Children: Relocation) [2013] EWHC child can meet a judge, but it is rare. 292 (Fam) took the opportunity to consolidate the guidance on the

Court’s approach to relocation applications: 6.10 Is there separate representation for children in your ■ the only principle to be applied when determining a relocation jurisdiction and, if so, who would represent them, e.g. a application is that the welfare of the child is paramount and lawyer? outweighs all other considerations; ■ the guidance given in previous case law is valuable and helps the judge to identify which factors are likely to be most important; Yes, it is available, but not in most cases. Children’s views are ■ the guidance is not confined to an application from the primary routinely reported by CAFCASS or an ISW but in some complex carer and can be applied in all relocation cases should the judge cases they can become a party to proceedings and they are deem it appropriate; and represented by a Guardian (who is likely to be from CAFCASS and ■ the following key questions should be asked: who is independent, to make sure the decisions made about the 1. Is the application genuine and not motivated by a desire to children are in their best interests) and they will instruct a lawyer who exclude the “left behind” parent from the child’s life? works with them. 2. Is the application realistically founded on practical

proposals that are both well-researched and investigated? 6.11 Do any other adults have a say in relation to the 3. What would be the impact on the applicant of a refusal of arrangements for the children? E.g. step-parents or their realistic proposal? grandparents or siblings. What methods of dispute resolution 4. Is the “left behind” parent’s opposition motivated by are available to resolve disputes relating to children? genuine concern for the child’s welfare or is it driven by an ulterior motive? 5. If the application is granted, what is the extent of the Other such adults can have a say in the children’s arrangements and detriment to the “left behind” parent and their future can make applications to the court if they can show a significant relationship with the child? connection to the child. For example, grandparents can apply but 6. To what extent would that detriment be offset by the (save in limited circumstances such as they have been living with the development of the child’s relationship with their extended child), they are not automatically entitled and are required to make family or homeland upon relocation? an application for permission to proceed with their application. Three recent Court of Appeal cases, Re K [2011] EWCA Civ 79, Step-parents (if they are married or in a civil partnership with the F [2012] EWCA Civ 1364 and Re F [2015] EWCA Civ 882, have biological parent) can apply for a parental responsibility order or a clarified the Court’s approach. The focus must be on the child’s best Child Arrangements Order. A judge will decide all applications interests having regard to court guidance (i.e. the guidance set by based on what is in the best interests of the child. Payne) but such guidance and the factors set out are not presumptions but part of the overall welfare analysis. The second 7 Children – International Aspects Re F [2012] held that there is a need for the Court to carry out (1) a holistic comparative balancing exercise of the realistic options before the Court including the plans of both parents, and (2) a propor- 7.1 Can the custodial parent move to another state/country tionality evaluation in respect of the interference with the established without the other parent’s consent? family life the children had with the other parent (so taking into account that the effect of an international relocation is such that the No, the custodial parent cannot remove a child from the jurisdiction Article 8 rights of a child are likely to be infringed). without either the prior written consent of each person with parental In England and Wales, particularly in cases where there is a shared responsibility or a court order granting permission (s13(1)(b) residence arrangement, the Courts are therefore increasingly looking Children Act 1989). closely at the impact on the child of the reduced time with the left- However, the custodial parent (i.e. the person named in a Child behind parent. As such, it is now more difficult than in previous Arrangements Order as the person with whom the child lives) can years for applicants to be successful in relocation applications.

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7.4 If the court is making a decision on a child moving to a The UK is a member of the EU and signatory to Brussels II and different part of the state/country, what factors are taken into in cases of child abduction between England and Wales and other European countries the provisions of Brussels II are used (they are account? similar to the provisions of the Hague Convention but with more limited defences). Please see the answer to question 7.3. 8 Overview 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? A study in 2012 by Dr. Rob George found that applications for inter- national relocation had a success rate of 66.7% (where 95% of the applications in the study were brought by mothers who, in the An increasing number of self-represented parties (following the majority of the cases, were fairly clearly the child’s primary carer). withdrawal of most legal aid) at a time when there have been The research also demonstrated the following: significant financial cuts in the Courts. This has had the effect of ■ the extent to which the child spends overnight time with both an increase of people (who can afford it) choosing “private judging” parents was important, with applications less likely to succeed and arbitration, and for those people who cannot afford legal advice, where the child spends frequent overnight time with both representing themselves at court. parents; Following the UK Referendum in June 2016 to come out of ■ where the applicant was in a new long-term relationship, they Europe, there has been significant focus on the UK’s relationship had a higher chance of succeeding; and with the rest of Europe in terms of family law in the future ■ the greater the proposed distance of the relocation, the less likely following Brexit (see chapter 3: Brexit and Family Law). There is it was that the application would succeed. also a concern that, as a result of the focus and resources utilised on However, as decisions on relocation are made on a case-by-case Brexit, other family law reform will be postponed. basis through analysis of the welfare checklist, the guidance (see As set out at question 4.4 above, the Civil Partnership Act 2004 is question 7.2) should not be applied rigidly and the likelihood of being extended to include opposite-sex couples but it has not yet success depends on the individual facts of each case. been implemented. The “no fault” divorce is currently being implemented with “The Divorce, Dissolution and Separation Bill” being introduced in 7.6 How does your jurisdiction deal with abduction cases? Parliament on 13 June 2019. The Bill aims to introduce a minimum For example, is your jurisdiction a party to the Hague overall timeframe of six months into the divorce process, to retain Convention? the irretrievable breakdown of a marriage as the sole ground for divorce but replacing the requirement to provide evidence of a England and Wales is a party to the Hague Convention on the Civil “fact” around behaviour or separation with a statement of irretriev- Aspects of International Child Abduction which is incorporated into able breakdown, to remove the possibility of one spouse preventing domestic law by the Child Abduction and Custody Act 1985. The a divorce and creating the option of a joint application for divorce. same act gives the Court the jurisdiction to: ■ order that a welfare report be prepared by CAFCASS or a local 8.2 What are some of the areas of family law which you think authority (s6); should be looked into in your jurisdiction? ■ declare that a child’s removal from the UK was wrongful (s8); ■ recognise and enforce the custody decisions of other countries The law for cohabitants should also be reformed, as cohabitees have (Part II); and very few rights when they separate from their partner – many ■ make wide-ranging interim orders against any person who the cohabitees believe incorrectly that they automatically obtain rights Court has reason to believe may have relevant information, to by living with someone for many years. disclose this information in an attempt to find out the where- Pre-nuptial agreements – there is nothing in our statute that means abouts of a child (s24A). that pre-nuptial agreements are automatically enforceable and the The Hague Convention is used between England and Wales and Courts retain a significant discretion as to whether the terms will be non-EU countries who have signed up to the Convention. enforced on divorce. Like other areas of finance on divorce, and, The Child Abduction Act 1984 created the criminal offence of with an increasing number of self-represented persons due to the child abduction where a person connected with a child removes or withdrawal of legal aid, there are increasing calls for a reform of the sends that child out of the jurisdiction without the appropriate approach to finances on divorce to make it simpler and less consent. If convicted, the offending party is liable for a fine and/or discretionary. 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 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 fellow of the International Academy of Family Lawyers. In the recent published legal directories, Chambers UK and The Legal 500, she has been described as “a complete delight”, “fantastic – she has all the attributes you want from an international family lawyer, and has warmth in abundance”, being “absolutely brilliant at jurisdictional elements of work”, “universally respected”, “an absolute star with a relaxed and authoritative style” and “a wonderful person with an excellent mind and exceptional client care skills”.

Kingsley Napley LLP Tel: +44 207 814 1200 Knights Quarter Email: [email protected] 14 St John’s Lane URL: www.kingsleynapley.co.uk London EC1M 4AJ United Kingdom

Kingsley Napley is an internationally recognised law firm based in central London. Our wide range of expertise means that we are able to provide our clients with joined-up support in all areas of their business and private lives. The Family team, made of 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 “absolutely top-end”, “a team that has a great breadth of experience across the board and particularly in international cases”, from “a standout firm” and a team that “always fights hard to defend your interests”. Clients have described Kingsley Napley as “an exceptional law firm, with extremely high-quality professionals and a kind and welcoming environment”. www.kingsleynapley.co.uk

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Finland Finland

Asianajotoimisto Juhani Salmenkylä Ky, Attorneys at Law Hilkka Salmenkylä

1 Divorce 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, domicile, No oral hearing is organised. The divorce is always granted by the etc.? local District Court.

In principle, grounds for jurisdiction are stipulated in the Council 1.4 What is the procedure and timescale for a divorce? Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. See above. If the spouses have lived separately for two years or Furthermore, in addition, if Brussels IIbis or any international more, the divorce is granted practically immediately. If they have agreement does not apply, the Finnish Marriage Act provides not, a reconsideration period of six months applies. In both following grounds for jurisdiction: situations, if one of the spouses applies for divorce alone, the other (1) either spouse is domiciled in Finland; or spouse must first be served. (2) the petitioner has been domiciled in Finland or otherwise has a close link to Finland and he or she cannot institute divorce 1.5 Can a divorce be finalised without resolving other proceedings in the foreign state where either spouse is associated matters? For example, children and finances. domiciled, or this would cause unreasonable inconvenience to the petitioner, and the admissibility of the matter in Finland is Yes, it can. The status relationship with the spouses dissolves on the justified in view of the circumstances. basis of the grounds explained above. It is not significant whether associated matters have been resolved or not. 1.2 What are the grounds for a divorce? For example, is In connection with proceedings relating to divorce, the following there a required period of separation, can the parties have an matters can also be decided or started: uncontested divorce? ■ maintenance to a child or the spouse; ■ custody and visiting rights of a child; ■ ordering one of the spouses to continue to live in the In accordance with the Finnish Marriage Act, the spouses shall have matrimonial home and the other spouse to vacate the home the right to a divorce after a reconsideration period. However, the (until division of property only); or spouses shall have the right to a divorce without a reconsideration ■ appointing an estate distributor. period if they have lived separated for the past two years without Alternatively, the spouses can agree on these matters or even leave interruption. them unresolved and have separate judicial proceedings at a later After a reconsideration period of at least six months, the spouses date if needed. are granted a divorce upon their joint request or upon the request of one of the spouses. The request must be made within one year of the beginning of the reconsideration period. The original 1.6 Are foreign divorces recognised in your jurisdiction? If applicant cannot withdraw the original application. so, what are the procedural requirements, if any? The granting of divorce does not depend on the acceptance of the other spouse. It cannot be contested. Foreign divorces are recognised directly on the basis of the Brussel A divorce case becomes pending in the District Court by a written IIbis regulation. If Brussels IIbis or any international agreement does application which can be made by the spouses together or by one not apply, the Marriage Act provides rules regarding recognition. spouse alone. The application can also be sent by mail, fax or e-mail. A decision on divorce, separation or nullification of marriage When handling a case of divorce, the court does not examine the given in a foreign state are, in principle, directly recognised in or the personal relationship between the Finland. However, a decision is not recognised if one or more of spouses. A spouse is always entitled to obtain a divorce. the grounds for non-recognition applies: Divorce is possible without alleging fault against the other party. (1) the jurisdiction of the state where the decision was given was not based on habitual residence, domicile or nationality of either spouse;

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(2) recognising the judgment is contrary to Finnish public policy 2.3 How does the court decide what financial orders to (ordre public); make? What factors are taken into account? (3) the other spouse had not been heard or served and has not after- wards clearly accepted the judgment; or (4) the judgment is in conflict with a judgment given in Finland Division of assets is not carried out by the court. The estate between same parties or in some other country and that judg- distributor carries out the distribution of all the assets according to ment is deemed valid in Finland. the provisions of the Code of Inheritance and the Marriage Act, The district court of Helsinki can confirm a judgment to be valid drafts its terms in writing and signs it. if it is not directly recognised. If the parties are not satisfied with the distributor’s decision, they can go to court. The court itself never makes the distribution and can only correct the estate distributor’s decision if it finds there has 1.7 Does your jurisdiction allow separation or nullity been a mistake. Even then, the court usually hands the distribution proceedings? back to the distributor to correct the mistake in accordance with its decision, if it involves more than an arithmetic correction. Both are nowadays unknown procedures in the Finnish jurisdiction. The Marriage Act no longer has regulations on “cancellation” or 2.4 Is the position different between capital and “nullification”, or “judicial separation”. Today, according to the maintenance orders? If so, how? Supreme Administrative Court, there is only one way of dissolving a marriage (besides death) and that is divorce. Even if one of the spouses was mentally ill and could not understand the ceremony or Yes, see above. Spousal maintenance is very exceptional in Finland. the marriage, a marriage cannot be cancelled. Also, it is not decided by the estate distributor in the proceedings related to division of assets, but by the court in separate proceed- ings. 1.8 Can divorce proceedings be stayed if there are

proceedings in another country? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? Yes, lis pendens applies on the basis of the Brussels IIbis.

2 Finances on Divorce No, see above. Most couples divide their assets by themselves or let their assets undivided. Only about 750 estate distributors are appointed. Only about 75 cases contesting distribution are handled 2.1 What financial orders can the court make on divorce? in the District Court. Perhaps 10% of these go to the higher courts.

The court does not make any financial orders about division of 2.6 How long can spousal maintenance orders last and are assets on divorce. The parties have full freedom of contract in such orders commonplace? relation to this. If they cannot reach a conclusion, an official estate distributor (e.g., an attorney) can be appointed by the court. A Spousal maintenance is normally only granted temporarily for a distributor has powers to decide on the distribution of the property short period of time (e.g., a few months) in cases where a party does of the parties. not have possessions, was not compensated via dissolution of When proceedings relating to divorce are pending, a distribution marital property (due to, e.g., a pre/post-nuptial agreement limiting of matrimonial property is carried out only if a spouse demands it. the marital right) and objectively is in need of maintenance. It is not obligatory and it can be left undistributed. If neither spouse Involuntary maintenance after divorce is, in practice, non-existent. has a marital right to the property of the other spouse, a separation As a rule, after divorce, spouses support themselves, earn their own of the property of the spouses is carried out instead of the living, or if they cannot, the social security system is expected to distribution. provide for their basic financial needs. If spousal maintenance is exceptionally asked for and the matter It is very rare that courts grant maintenance to an ex-spouse. In is not agreed by the spouses, a court can decide on the matter. In the case of KKO: 2010:3, the Supreme Court upheld its position Finnish legal practice, it is very rare for a spouse to be required to that the requirements for maintenance are very strict. The question pay maintenance to the other spouse. was whether the wife had a right to maintenance after divorce. She was of foreign origin, she did not speak Finnish, she had no 2.2 Do matrimonial regimes exist and do they need to be professional training and the marriage had lasted for about 10 years. addressed by the court on divorce? Is there a default According to the court, the primary question is whether the spouse matrimonial regime? is in need of maintenance. If there is no need, there is no obligation to pay. In addition, the other spouse must be capable of paying and it must be reasonable in the circumstances to order payment. The only matrimonial regime in accordance with the Finnish legal It was stated in KKO: 2004:104 that the principal rule is that the system is provided by the Marriage Act. financial bond created by the marriage ceases in divorce and the The property that a spouse has when entering into the marriage liability to provide maintenance ends. The obligation to pay main- remains theirs. The spouse also owns what they acquire during the tenance may be an issue only if the other spouse is left totally marriage. without the ability to support himself/herself because of the However, each spouse has a marital right to the property of the marriage. Divorce as such, does not give cause to claim mainten- other spouse. According to this right, each spouse acquires half of ance. the net property of the spouses at the distribution of matrimonial The Supreme Court ordered that the husband pay a small sum of property. A spouse does not have a marital right to property money monthly for three years starting from the date of the divorce. excluded from the scope of the marital right by a marriage settlement, a gift deed or a will, nor to property acquired in the place of such property.

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2.7 Is the concept of matrimonial property recognised in 3 Marital Agreements your jurisdiction?

3.1 Are marital agreements (pre and post marriage) The concept of marital right is used in the Finnish legal system. The property that a spouse has when entering into the marriage remains enforceable? Is the position the same if the agreement is a his or hers. The spouse also owns what he acquires during the foreign agreement? marriage. However, each spouse has a marital right to the property of the other spouse. According to this right, each spouse acquires Yes, they are. It is irrelevant if the marital agreement is domestic or half of the net property of the other spouse at the distribution of foreign. It is enforceable if it is valid in accordance with the legis- matrimonial property. A spouse does not have a marital right to lation according to which it was given/drafted and there was ample property excluded from the scope of the marital right by a marriage connection to that country/law. settlement, a gift deed or a will, nor to property acquired in the place of such property. 3.2 What are the procedural requirements for a marital

agreement to be enforceable on divorce? 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Can the The marital agreement must be valid. In Finland, the spouses can, court make orders applying foreign law rather than the law of either before the marriage or during the marriage, execute a marriage the jurisdiction? settlement. In a marriage settlement, they can exclude from the marital right any property owned or later acquired by a spouse. In Foreign nationals are not treated differently as regards divorce. it, the spouses can agree that, when the marriage is dissolved, the Habitual residence is the main factor. Foreign law can be applied to property of the spouses is not divided equally, but that each spouse division of property or to spousal maintenance claims, and also keeps their property. sometimes when a party is of Finnish nationality. The spouses can also agree to restore the marital right of a spouse to property previously excluded from the marital right in a marital agreement. 2.9 How is the matrimonial home treated on divorce? The marriage settlement is concluded in writing. It is dated and signed, and witnessed by two persons with no close connection to The matrimonial home is part of the property, like any other the spouses. property owned by one of the spouses or together. However, during The marriage settlement enters into force when it has been regis- the marriage a spouse cannot sell the matrimonial home, even if this tered by the local register office. A marriage settlement affects the spouse owns it alone and if it is separate property. The court can distribution of matrimonial assets when the marriage is dissolved order one of the spouses to continue to live in it after the divorce, either on the death of a spouse or on divorce. but only until the division of property. When dividing the property, A marriage settlement is not necessarily binding. Its terms can be the matrimonial home is handled like any other property. derogated from, or it can be set aside altogether in the distribution of matrimonial property in cases where compliance with the marriage 2.10 Is the concept of “trusts” recognised in your settlement would lead to an unreasonable result. jurisdiction? If so, how? 3.3 Can marital agreements cover a spouse’s financial Trust is an unknown concept in Finland. claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property 2.11 Can financial claims be made following a foreign regime? divorce in your jurisdiction? If so, what are the grounds? These agreements are limited to the election of the matrimonial Yes. Divorce, child custody, maintenance and division of assets are property regime. The agreement can, however, be written as a sort all separate issues. If any of these matters have not been decided in of compensation. Spouses who exclude the marital right can foreign divorce proceedings, a party can make an application in stipulate that the spouse with less property will “earn” so many euros Finland if Finland has jurisdiction according to the relevant per year, and part of the property of the other spouse will restore regulations or the Finnish law. If there is a foreign decision and the its marital right status. decision is recognised in Finland, it is possible to apply for a change if the reasons meet the normal requirements for change in an order. 4 Cohabitation and the Unmarried Family

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

A court always tries to make the parties agree on matters, likewise Maintenance is out of the question. the estate distributor. There is also a court mediation and some The Act on the Dissolution of the Household of Cohabiting mediation systems outside of court. Partners applies to the dissolution of the household of cohabiting

partners when the partnership ends. If a cohabiting partner so

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demands, a separation of the cohabiting partners’ property is carried ability to work, opportunity to obtain gainful employment and avail- out when the cohabiting partnership ends. able assets. A cohabiting partner is entitled to compensation if, through The maintenance is ordered by the court or agreed by the parents contributions for the benefit of the shared household, they have with the child welfare supervisor. assisted the other cohabiting partner in accumulating or retaining their property so that dissolution of the household, solely on the 5.3 For how long is a parent required to pay child basis of ownership, would result in unjust enrichment at the expense maintenance or provide financial support for their children? of the other. Otherwise, separation happens according to the normal civil law For example, can a child seek maintenance during university? rules. A child is entitled to maintenance from the parents until the age of 4.2 What financial orders can a cohabitant obtain? 18 years. The parents are responsible for expenses incurred in the education of the child even after the child has reached the age of 18 years, if See above. There are also some rules about how to win back the this is deemed reasonable. Special consideration is given to the unjustified benefit the other party – whichever – has achieved. aptitude of the child, the duration of the education, the amount of

expenses incurred and the opportunities that the child has of 4.3 Is there a formal partnership status for cohabitants (for covering the expenses of his or her education after completing example, civil partnerships, PACS)? education. The term “education” refers primarily to upper secondary education.

No, there is not. 5.4 Can capital or property orders be made to or for the 4.4 Are same-sex couples permitted to marry or enter other benefit of a child? formal relationships in your jurisdiction? It is possible that instead of running maintenance, the maintenance is paid as a lump sum or by transferring property to a child. There Finland has permitted same-sex marriage since March 2017. A are no limitations on what kind of property can be transferred to a Finnish earlier registered partnership can be changed to marriage by child in order to cover maintenance. It can, e.g., be a part of the filing a joint notice with the local Register Office. Otherwise, the family home. However, covering maintenance with property orders partners continue having a registered partnership. New registered is very rare as the property transferred to a child’s name cannot be partnerships cannot be registered. used to cover his or her running expenses.

5 Child Maintenance 5.5 Can a child or adult make a financial claim directly against their parents? 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? A minor child (under the age of 18 years) is technically the plaintiff against the paying parent, but is represented by his or her custodian Child maintenance is regulated by the Child Maintenance Act. A or a trustee. child is entitled to maintenance from his or her parents. If a parent The representative can also represent the child in relation to the neglects to maintain a child, or if the child does not live permanently right to receive maintenance even after the child has reached the age with a parent, the parent can be ordered to pay maintenance to the of 18 years if this demand is made while underage. A person aged child. 18 years old or over should ask for costs for education by themselves. As a rule, maintenance is payable in cash on a monthly basis and in advance, unless otherwise agreed or ordered. 6 Children – Parental Responsibility and Payment of maintenance can be made through the payment of a Custody lump sum or a transfer of property to the child. Such payment/ transfer must be sufficient to ensure the maintenance of the child in the future. 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? The provisions on custody of children are set out in the Child Custody and Right of Access Act. The law has recently been partly There is a fixed formula for calculating maintenance provided by the changed, and the new rules will come into force in December 2019. Ministry of Justice. It is not legally binding, but most courts use it. If the parents of the child are married to one another at the time Regardless of this instruction, final consideration of the amount of of the birth of the child, they both have custody of the child. If the maintenance is made on an individual basis. This was confirmed by mother of the child is not married, she has sole custody. In addition, the two Supreme Court decisions KKO: 2010:37 and KKO: 2010:38. after the establishment of paternity, the mother remains the sole A child has the right to adequate maintenance consisting of satis- custodian unless otherwise agreed. Most parents agree on joint factory fulfilment of the child’s needs, necessary care and education custody. Custody can be decided in a court order or an agreement and payment of the resulting costs. between the parents. Parents are responsible for the maintenance of the child based on Otherwise, in most respects, children born in marriage and outside their financial capacity. Consideration is given to the parents’ age, marriage are treated equally.

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According to the new rules, even the unmarried father will more the other parent. It is normally considered acceptable, though, to often automatically have custody. take the child abroad for a vacation trip during this parent’s (visiting) time. The other parent should be informed of this. 6.2 At what age are children considered adults by the court? The parent with sole custody can take the child abroad for a vacation trip without the other parent’s consent. However, taking the child abroad on the other parent’s visiting time might affect In accordance with the Finnish legislation, an adult is a person who future decisions. is 18 years old or older.

6.7 Is there a presumption of an equal division of time 6.3 What is the duration of children orders (up to the age of between separating or divorcing parents? 16 or 18 or otherwise)?

The normal schedule for access used to be every other weekend, In principle, up to the age of 18. Orders can be modified if the perhaps from Thursday from school until Monday morning to circumstances change. school, and one night on the other week and splitting holidays equally. Parents nowadays tend to divide the time equally. Even if 6.4 What orders can the court make in relation to children? the time is divided equally, the child resides with one parent and has Does the court automatically make orders in relation to child access to the other parent. arrangements in the event of divorce? According to the new rules, this equal division of time is going to be the main rule, keeping the child’s best interests in mind.

The court can decide about custody, with which of the parents the child is going to reside, visitation and maintenance. The parents can 6.8 Are unmarried parents treated in the same way as also agree on these matters officially with the child welfare married parents when the court makes orders on separation supervisors. The court does not automatically make orders in the or divorce? event of divorce. The spouses can agree on these matters or even leave them Yes, they are. unresolved, and have separate judicial proceedings at a later date if needed. If the parents are unable to reach an agreement on the question 6.9 Is a welfare report prepared by an independent of custody, the matter will be settled in court. The court will then professional or is the decision taken by the Judge alone? If decide not only on the custody, but also on with which of the so, does the child meet the Judge? parents the child is going to reside. Where necessary, a court can issue instructions on the duties, The court obtains a report from the municipal social welfare board. rights and obligations of custodians and, if the child has several The court then decides on the custody and residence arrangements. custodians, decide on the distribution of responsibilities between The child can sometimes be heard in person before the court, if them. there is a substantial reason that makes this necessary in view of the

decision in the case. He or she can only be heard if he or she 6.5 What factors does the court consider when making consents to the same, and if it is evident that the hearing cannot orders in relation to children? cause harm to the child. The child will be heard by the court more often in the future The overriding principle is the best interest of the child. For this according to the new rules. purpose, special attention is paid to the manner in which custody and right of access may be best realised in the future. Relevant 6.10 Is there separate representation for children in your factors are, e.g., the child’s relationship with his or her parents, jurisdiction and, if so, who would represent them, e.g. a arranging school and daycare, relationships of the child to his or her lawyer? next of kin and friends, arranging healthcare and possible special support/needs of the child. In a matter relating to child custody and right of access, the wishes There is no separate representation for children in relation to and views of the child himself must be ascertained insofar as this is custody/visitation. possible in view of the age and stage of development of the child, if the parents cannot reach an agreement on the matter. 6.11 Do any other adults have a say in relation to the This is usually done so that the court obtains a report from the arrangements for the children? E.g. step-parents or social welfare board of the municipality where the child and the grandparents or siblings. What methods of dispute resolution parents have a place of residence. are available to resolve disputes relating to children?

6.6 Without court orders, what can parents do unilaterally? In general, only persons with custodial rights (in principle, parents) For example, can they take a child abroad? have a say in relation to the arrangements of children. However, in the custody proceedings, other persons may also be heard. When the parents have joint custody, the consent of both custodians The new rules give the court the possibility to confirm visitation is, as a rule, necessary when significant matters relating to the child rights between a child and a person especially close to the child to are decided; for example, residence, education, the child’s surname whom the child has a relationship which corresponds to a child-parent and responsibility for the child’s passport. The parent, with whom relationship. The provision is meant to give the child a possibility to the child resides, decides on all day-to-day practical matters. Neither meet, e.g., grandparents or step-parents. parent has the right to take the child abroad without the consent of

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The Act on Mediation in Civil Matters and Confirmation of ■ What is the relation between the child and the moving parent? Settlements in General Courts applies to child issues too. The precon- Has the child spent most of his or her life with that parent? dition for court mediation is that the matter is amenable to mediation, ■ Is there a new partner abroad or a new family? and a settlement is appropriate in view of the claims of the parties. ■ Has the parent been offered a new job abroad? Is it really The so-called Follo-mediation in District Court involves medi- necessary to change jobs? Is it an important career opportunity? ation with the help of a specialist, usually a psychologist. The parties ■ How would the relocation affect the right of access? can choose to engage in this mediation directly or after starting court ■ What would be the financial consequences of the relocation? proceedings. The practical problem in relocation cases is usually money because of the travelling expenses needed for the child to meet 7 Children – International Aspects with the other parent.

7.4 If the court is making a decision on a child moving to a 7.1 Can the custodial parent move to another state/country different part of the state/country, what factors are taken into without the other parent’s consent? account?

The sole custodian is allowed to move to another state without the Basically the same factors as above. other parent’s consent. However, a parent is granted sole custodian- ship only in very rare occasions. If the parent has sole custody, there are no legal means to prevent 7.5 In practice, how rare is it for the custodial parent to be the custodian moving abroad and taking the child with them. If the allowed to relocate internationally/interstate? other parent receives this information early enough, they can apply to court, asking for a change of custody, or at least try to ensure a There are no published cases from the Supreme Court on relocation. right of access under the new circumstances to maintain contact Relocation cases are mainly dealt with in lower courts but, because with the child. they are classified as custody cases, it is very hard to tell how Most parents have joint custody. In this case, the other parent’s common relocation cases actually are in Finland. permission is necessary before the relocation. Neither of the parents can move to another country with the child 7.6 How does your jurisdiction deal with abduction cases? without the other parent’s consent. If a parent wants to move with the child and the other parent does not agree to this, the parent For example, is your jurisdiction a party to the Hague seeking to move must go to court. If they move without consent, Convention? it might be a question of a Hague Convention case. Finland is a party to the Hague Convention. Brussels IIbis applies 7.2 Can the custodial parent move to another part of the in Finland. Also, Finland is a member to the Luxembourg state/country without the other parent’s consent? Convention. The Ministry of Justice is the central authority. The state and municipal welfare authorities, on request, provide the Ministry of See above. It would not be a Hague Convention case, but behaving Justice with executive assistance for ascertaining the whereabouts like this might affect a future case in court. and circumstances of a child, for securing the return of a child and The new rules require a moving parent to inform the other parent for preventing the wrongful removal of a child. about the intention to change a place of residence if moving would The Ministry of Justice provides active advice and help relating to influence the child custody or visitation rights. A moving parent is the interpretation of the Convention and the practical measures in obliged to inform the other parent in sufficient time, and if possible applying for the return of a child. at least three months before he or she is about to move. Only When the Ministry receives a request for the return of a child, it exceptionally, e.g., in cases where there is a fear of domestic violence, assigns the case to a lawyer, whose first duty is to attempt to achieve is a moving parent not required to inform the other parent. the voluntary return of the child. Failing this, the lawyer brings an

action for the return of the child in the Helsinki Court of Appeal, 7.3 If the court is making a decision on relocation of a child where all cases of child abduction are heard. The petitioner is abroad, what factors are taken into account? granted legal aid. Appeals against decisions made by the Court of Appeal can be lodged with the Supreme Court. The Finnish legal vocabulary does not have a word for relocation. If a decision on the return of a child is not voluntarily complied Relocation cases are dealt with using the same rules as all custody with, it can be enforced through coercive measures. The Court of cases, and there is no special legislation on relocation. Appeal decision can be enforced in spite of appeal. All matters must be decided in accordance with the best interests If a child has been wrongfully removed to a state that is not a of the child and the wishes of the child. The court must pay special party to the Hague Convention, the parent must contact the Ministry attention to how the custody and right of access can be guaranteed for Foreign Affairs. in the best possible way in the future. Child abduction is also regarded as an offence and subject to The court first considers whether the plan to move is genuine or punishment under the Penal Code. An individual is guilty of child if it is motivated by some ultimate reasons. If the plan to move is abduction if he or she: genuine, the following questions will be considered: ■ Takes a child arbitrarily into custody and removes the child from ■ How old is the child and is the child mature enough to make the his or her country of residence to a foreign country. decision him or herself? Has the child expressed his or her will ■ Fails to return the child to his or her state of residence. independently and without pressure? In addition, the abductor may be guilty of a more serious offence ■ What is the relation between the child and the other parent? Has against personal liberty, for example, deprivation of liberty, the other parent exercised his or her right of access and to what aggravated deprivation of liberty or hostage-taking. extent?

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8 Overview maternity is confirmed before the child is born, the father or the second mother automatically becomes the joint custodian of the child. 8.1 In your view, what are the significant developments in The new law makes it possible for a child to have two addresses; although, until some other laws are changed, the child can only have family law in your jurisdiction in the last two years? one official home. This issue is now on the to-do list of our new government. The big project of changing the Child Custody and Right of Access Act (which enters into force on 1st December 2019) is the most 8.2 What are some of the areas of family law which you think significant development. The new rules mainly lay down the practice of today. A major change, though, will be the possibility of officially should be looked into in your jurisdiction? dividing the time equally between parents so that both have at least 40% of it. The changes needed in the future would be, following these new The aim of the renewal is to better take into consideration the rules, how to calculate maintenance and how to divide the social opinion of the child and the best interest of the child. Furthermore, benefits, if the division of time becomes the main rule, as it is meant the renewal has the goal of better supporting the child’s right to have to be. two parents. The law changes the position of unmarried fathers and mothers who are not giving birth (same-sex couples). If the paternity or

Hilkka Salmenkylä has been a member of the Finnish Bar since 1982. She is the chairman of the expert group of the Finnish Bar Association in family and inheritance law. Her main areas of work are international family law, family and inheritance law, sports law and civil litigation. She is specialised in handling international Hague Convention cases (since 1994) and is a Fellow of the IAFL.

Asianajotoimisto Juhani Salmenkylä Ky, Tel: +358 400 705 215 Attorneys at Law Email: [email protected] Pakilantie 40, 00630 URL: www.salmenkyla.fi Helsinki Finland

We provide legal services to private individuals and companies in all legal matters. We handle civil cases concerning family law (child support, custody and visitation rights) in particular. Our working languages are Finnish, Swedish, English and German. www.salmenkyla.fi

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France France

Diane Sussman Diane Sussman

1 Divorce and the recognition and enforcement of decisions in matters of matrimonial property sets that the court of a Member State seized to rule on divorce, legal separation or marriage annul- 1.1 What are the grounds of jurisdiction for divorce ment, has jurisdiction on matters of the matrimonial property proceedings? For example, residence, nationality, domicile, of the spouses.

etc.? 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an The French court first applies the rules of Regulation (EC) 2201/2003 (“Brussels II bis”) which determines the jurisdiction of uncontested divorce? an EU Member State in matters relating to divorce on the following alternative grounds: Divorce may be pronounced on the grounds of: ■ habitual residence of spouses; ■ mutual consent (uncontested divorce). This divorce needs an ■ last habitual residence of spouses, insofar as one of them still agreement of both parties on the principle of divorce and all its resides there; consequences; ■ habitual residence of the respondent; ■ acceptance of the principle of the breakdown of the marriage. ■ in the event of a joint application, habitual residence of one The spouses agree on the principle of the divorce but disagree spouse; on matters related to children and ancillary relief, which are dealt ■ habitual residence of the applicant who resided there for at least by the family judge; a year immediately preceding the application; ■ definitive alteration of the bond of marriage. This is auto- ■ habitual residence of the applicant who resided there for at least matically pronounced by the court if one spouse establishes two six months immediately preceding the application and is either years of separation without reconciliation at the time of lodging a national of the Member State in question; or the petition for divorce (the reform of justice, which comes into ■ nationality of both spouses or, in the case of the United force in 2020, has lowered the requirement to a one-year separ- Kingdom and Ireland, domicile of both spouses. ation: cf. question 1.4 below); and Case law defines habitual residence as the country where a party ■ fault. This is pronounced when a party establishes facts which has fixed his permanent or habitual centre of his interests. This is a constitute a serious or renewed violation of the duties of question of fact. marriage which render marital life unbearable. If no EU jurisdiction is designated by the Brussels II bis Regulation, the French court shall have jurisdiction according to 1.3 In the case of an uncontested divorce, do the parties French internal rules, which are mainly based on the French citizen- need to attend court and is it possible to have a “private” ship of petitioner or defendant (sections 14 and 15 of the Civil Code). These rules aiming to designate French jurisdiction based on divorce, i.e. without any court involvement? French international rules will only apply if the defendant has a habitual residence in a non-EU Member State or has a non-EU The law changed in November 2016 on the subject of uncontested citizenship. divorces. The mutual consent divorce filed post-January 1, 2017 is Even though the French court has jurisdiction to pronounce the not a judicial process anymore but a contractual process, except in divorce, its jurisdiction regarding ancillary matters is not automatic. cases where a child asks to be heard by the judge or a spouse is under In relation to: guardianship measures. ■ parental responsibility, the Brussels II bis Regulation is applied Parties no longer need to attend court as this private agreement is (articles 8 to 15); countersigned by the spouses’ lawyers and registered by the French ■ maintenance obligations, Regulation (EC) 4/2009 on notary who records the latter after a formal control. More precisely, jurisdiction, applicable law, recognition and enforcement of once the lawyers have drafted the project of convention, they send decisions and cooperation are applied; and it to each of their client by registered post. Then, parties are auth- ■ the division of assets, French jurisdiction is determined on the orised to sign the convention after a 15-day delay beginning at the ground of the residence of the family or defendant in France or reception of the registered post. The signed agreement is handed the French nationality of one spouse for marriage celebrated over to the notary who deposits the convention and its annexes at before January 29, 2019. For marriage celebrated after this date, the rank of his/her minutes. The notary plays an essential role as article 5-1 of Council Regulation 2016/1103 implementing he confers enforceability to the convention once he has controlled enhanced cooperation in the area of jurisdiction, applicable law the presence of every mandatory mention.

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Practitioners should be very careful if the situation presents any For contested divorces, the divorce cannot be finalised without international element. Indeed, as a consequence of its hybrid char- resolving other matters except in cases where the French court has acter, the Court of Justice of the European Union has recently no jurisdiction on these issues. excluded the judge-free divorce by mutual consent from the Council Regulation of 20 December, 2010 implementing enhanced cooper- 1.6 Are foreign divorces recognised in your jurisdiction? If ation in the area of the law applicable to divorce and legal separation so, what are the procedural requirements, if any? (called Rome III Regulation). As a consequence, it affects its ability to be recognised outside French borders and the possibility to elect the French law. Moreover, the convention is not analysed as an auth- If a divorce is ordered in an EU Member State (except Denmark): entic instrument even if the circular explains that by registering it, the EU decision is automatically recognised, with some exceptions the notary confers authenticity. As a result, the convention is subject (articles 21 and 22 of Brussels II bis Regulation). to be brought into question according to contract law. Therefore, If a divorce is ordered in a non-EU Member State: in the absence the international circulation of this extrajudicial divorce raises serious of a specific bilateral or multilateral international convention difficulties being neither a judgment nor an authentic instrument. regarding the recognition of foreign judgments, foreign divorces are This is the reason why practitioners use this new divorce very recognised in France through a specific proceeding, as long as the carefully in international situations. following conditions are satisfied: The new Council Regulation (EU) 2019/1111 of 25 June, 2019 ■ the jurisdiction of the foreign court: there shall be strong contains article 65 which states that “agreements on divorce have connection factors of the case with the foreign jurisdiction, and binding legal effect in the Member State of origin [and] shall be the French court will not have exclusive jurisdiction over the recognised in other Member States without any special procedure...”. case; As a consequence, under Regulation “Brussels II ter” which enters ■ the compatibility of the foreign judgment with French “public into force on August 1, 2022, the European circulation of the policy”: this provision includes the requirement of a fair process conventional French divorce will be ensured automatically between and also the control of the foreign order; and Member States. ■ the absence of fraud: the French court confirms that the petitioner did not fraudulently evade another law. 1.4 What is the procedure and timescale for a divorce? If a divorce is ordered in a country bound with France through a bilateral convention, requirements are described in the convention (as an example, a speedy procedure for some conventions with Except in the case of a divorce by mutual consent which is African countries). In other cases, the party seeking recognition of conventional, divorce is currently obtained in a two-stage process: a foreign judgment seizes the court of first instance of the residence ■ Interim measures step: the applicant lodges a divorce request of the defendant of an “exequatur” procedure. In any case, the first at the local family court; after a preliminary hearing where petitioner needs to communicate the original judgment, the proof the presence of the parties is required, an interim order is that it is final and any document being translated by an expert trans- delivered where the family affairs judge mainly authorises the lator. spouses to live separately, determines custody and visitation rights over the children during the procedure, sets temporary 1.7 Does your jurisdiction allow separation or nullity maintenance for the impoverished spouse and the children and authorises one spouse to stay in the matrimonial home. proceedings? ■ Divorce step: one spouse lodges the divorce petition up to 30 months after the temporary order; the judge pronounces the Both exist. divorce, states once more on custody and visitation rights over An application for a decree of judicial separation (“séparation de the children, and the maintenance for the children, determines corps”) can be lodged if one of the grounds for divorce exists; most the financial support to be paid for the “impoverished spouse” of its provisions are similar to the divorces’ provisions. This (compensatory allowance) and proceeds to the division of assets procedure authorises spouses to live separately. The other duties of in accordance with the matrimonial property regime of the the marriage remain. The reform of family procedure previously parties. mentioned (§1.4) allows parties to settle such a separation through a The legislature recently voted (March 25, 2019) new civil private agreement countersigned by the spouses’ lawyers and regis- procedure rules affecting divorce procedures, which will come into tered by the French notary, as for the divorce. force not later than September 1, 2020 (government decrees of The annulment of the marriage shall be obtained: if the essential application need to be signed in the meantime): requirements for the formation are not met (an error as to the ■ firstly, interim measures are no longer mandatory and parties can identity of the person or her/his substantial characteristics, duress); renounce to these. Moreover, the document beginning the in the case of absence of authorisation on the part of the legal proceedings includes now two chapters previously reserved for representative of one spouse (for example if they are a minor, etc.); the “divorce step” above described: grounds for divorce and in the case of non-respect of the minimum age to marry; in the case ancillary matters with a presentation of the spouses’ assets. of ; or in the case of . If the requirement of consent Therefore, the divorce demand includes all aspects of the is subject to a wide interpretation, as a consequence, the French divorce; and judge may pronounce nullity on the one hand, if the consent is ■ secondly, the preliminary hearing is now called “orientation vitiated, and on the other hand, if one spouse seeks only to get a visa hearing” aiming at an exchange between the parties, their lawyers through the marriage, this constitutes a matrimonial intention default. and the judge to decide the next steps of the procedure. The aim is to facilitate agreements. 1.8 Can divorce proceedings be stayed if there are

proceedings in another country? 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. The process of staying the French divorce procedure depends on the foreign jurisdiction in which proceedings were first started: ■ If the applicant first started proceedings in a European Union country: The French judge informed of this other petition is

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obliged to stay its proceedings until such time as the jurisdiction and article 26 determines the applicable law in the absence of of the first jurisdiction where proceedings were first started is choice by the parties between the spouses’ first common established, and once established, is obliged to decline habitual residence after the marriage or common nationality. jurisdiction in favour of that court (article 19, Brussels II bis Regulation). 2.3 How does the court decide what financial orders to ■ If the applicant first started proceedings in a non-European make? What factors are taken into account? 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 (inter- Interim maintenance: article 208 of the Civil Code contains a general national lis pendens). The French family judge has no obligation rule on maintenance obligations stating that these are granted in to stay proceedings or deny its jurisdiction and will scrutinise all proportion of the needs of the claimant and the income of the the connecting factors of the case with France and the other defendant. The idea is to achieve a balance between the budgetary country and will check that the foreign order can be recognised needs and the income available to the parties, knowing that two in France once it has been rendered. households have a greater cost than one. The court will take into account both spouses’ income and compulsory expenses (taxes, 2 Finances on Divorce mortgage, rent, etc.) and also the standard of living of the impov- erished spouse. Compensatory allowance: article 271 of the Civil Code sets out 2.1 What financial orders can the court make on divorce? the factors which are: ■ duration of the marriage; ■ ages and states of health of the spouses; The interim order sets interim monthly maintenance for the impov- ■ professional qualifications and occupations; erished spouse. ■ consequences of the professional choices made by one spouse The final decree of divorce: during their living together for educating the children and the ■ determines the compensatory allowance to be paid for the time which must still be devoted to this education, or for impoverished spouse (“prestation compensatoire”), if needed. This favouring his or her spouse’s career to the detriment of his or allowance aims to compensate, as far as possible, the disparity her own; that the breakdown of the marriage creates in the respective ■ estimated or foreseeable assets of the spouses, both in capital standards of living; and and income, after liquidation of the property matrimonial ■ orders the division of assets in accordance with the property regime; and regime of the parties and appoints a notary to divide the ■ respective situations as to retirement pensions. properties. The compensatory allowance is generally a capital (the idea is to

make a clean break). It can take the form of a lump sum, allocation 2.2 Do matrimonial regimes exist and do they need to be of an asset in ownership, usufruct or the right to use an asset or its addressed by the court on divorce? Is there a default usufruct. If the debtor cannot afford the payment of a capital, the matrimonial regime? judge shall allow him/her to pay this capital in instalments, which should not exceed eight years. Very exceptionally, it can take the form of a lifetime rent when the age or state of health of the As in many countries of continental Europe, France applies creditor does not allow him or her to attend to his or her own needs. matrimonial property regimes and these must to be addressed by the Article 270 of the Civil Code allows judges to deny a court upon divorce. compensatory allowance to the spouse in equity (especially in faulty The French default matrimonial regime is that of community divorces with particularly serious circumstances). property. Division of assets is ordered on the basis of the matrimonial To determine the matrimonial regime of spouses, three systems property regime of the spouse. coexist in France according to the date of marriage.

■ if the spouses married before September 1, 1992: French case law enunciates a presumption according which the matrimonial 2.4 Is the position different between capital and regime is, in absence of a choice, determined by the law of the maintenance orders? If so, how? residence after the marriage; ■ if the spouses married after September 1, 1992: the 1978 Hague Yes. The philosophy of these two mechanisms is different. Interim Convention concerning the law applicable to the matrimonial maintenance aims to maintain the standard of living of the impov- property regime applies. Therefore, the French court applies the erished spouse, whereas the compensatory allowance is a lump sum law designated under the Convention (French or other). In the meant to counterbalance the gap created by the divorce between case that the parties make no positive choice of marriage regime spouses’ respective ways of life. upon marriage contract and do not elect a marriage regime at a later date, there is a default rule which applies the law of first 2.5 If a couple agrees on financial matters, do they need to place of marriage (article 4), which can be superseded either by later positive election of regime, or through a substantial period have a court order and attend court? of time of residence (10 years) or shared residence in a new country (article 7); If the spouses agree on all issues of divorce, they no longer need to ■ if the spouses married after January 29, 2019 or signed/or attend court (cf. question 1.3 above). All the financial issues are modified a post-nuptial agreement after this date, the Council included in the agreement lodged at the rank of the minutes of a Regulation 2016/1103 implementing enhanced cooperation in notary. the area of jurisdiction, applicable law and the recognition and In cases where there are still pending issues to be dealt by the enforcement of decisions in matters of matrimonial property court (for example, children), they only need to exchange an affidavit regimes, shall apply. The applicable law shall be the same for on their point of agreement, and do not need to attend court. An both immoveable and moveable property: article 22 authorised order will be rendered by the court. spouses to designate or change the law applicable on this matter

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2.6 How long can spousal maintenance orders last and are ■ division of assets: one of the three systems described (cf. ques- such orders commonplace? tion 2.2 above).

2.9 How is the matrimonial home treated on divorce? 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. The interim order authorises one spouse to stay in the matrimonial A compensatory allowance is generally a capital, but if the debtor home. Mostly, it is awarded to the spouse with custodial rights in is unable to afford this, it is commonplace that the judge allows this order to maintain the children there. In the case the matrimonial capital to be paid in monthly instalments, the duration of which home is a jointly-owned property or the property of the other should not exceed eight years. This amount cannot be increased or parent, the interim order specifies whether this occupation is decreased, even in the case of a substantial change of the financial gratuitous or not. situation of the debtor. In this case, the debtor shall nevertheless In the divorce decree, in cases where the spouse did not settle obtain judicial permission to vary the mode of payment (beyond the ahead the treatment of the matrimonial home, the court may grant standard eight years). It is due even after the debtor’s death and paid compensatory allowance by the allocation of the matrimonial home with the succession of the deceased. in ownership or of a right of use, dwelling or usufruct, temporary It is more exceptional that the judge grants a lifetime maintenance. or for life. If it is the personal property of one spouse only, the It may be decreased (never increased), suspended or suppressed in judge shall also give the matrimonial home on lease to the custodial the case of an important change in the resources or needs of either. parent. These solutions are limited to the case where the debtor owns sufficient assets. 2.7 Is the concept of matrimonial property recognised in 2.10 Is the concept of “trusts” recognised in your your jurisdiction? jurisdiction? If so, how? The matrimonial property regime determines the rules regarding the powers and ownership of each spouse on assets, acquired before or Even though France did not ratify the 1985 Hague Trust after the marriage. Convention, the concept is recognised in France and foreign trusts When the marriage breaks down, the treatment of property shall be recognised by French courts providing that its provisions: acquired before or built up during the marriage depends on the comply with the law of the country of its creation; are in agreement matrimonial property regime of the couple: with French public policy; and do not violate the reserve portion of ■ in separation of property regime, each spouse remains the an estate. exclusive owner of his property and income, whether acquired Moreover, on the one hand, the French law has acknowledged “la before or during the marriage; fiducie”, an institution that is similar to the trust and on the other ■ in community of property regime (the default regime), assets hand also allows French lawyers to act as trust protectors for foreign acquired during the marriage (“acquêts”) are shared 50/50 and trusts. assets acquired by one spouse through inheritance or legacy during the marriage or any assets acquired before the marriage 2.11 Can financial claims be made following a foreign (“biens propres”) belong exclusively to this spouse; and divorce in your jurisdiction? If so, what are the grounds? ■ in universal community regime, all assets acquired before or during the marriage are common assets, whatever their origin. Post-interim order or separation assets are excluded of the If a French judge has jurisdiction as per Regulation (EC) 4/2009 on division of assets. maintenance issues, he/she could state on financial claims in the following circumstances: ■ a foreign court has jurisdiction on divorce case but not on main- 2.8 Do the courts treat foreign nationals differently on tenance issues; divorce, if so, what are the rules on applicable law? Can the ■ a foreign divorce decree is recognised in France except on the court make orders applying foreign law rather than the law of financial orders because it is contrary to the French international the jurisdiction? public policy (exequatur partiel ); or ■ a foreign financial order needs to be varied due to a change of circumstances. They are not treated differently as the foreign citizenship of a spouse If no division of properties was ordered in the foreign divorce is not a relevant factor for applicable law. decree, a petition to divide assets shall be lodged in France if the French law is not automatically applied by the French judge. The defendant is habitually resident in France or one of the spouses is a judge shall apply a foreign law, depending on the international factors French citizen. of the case (mainly habitual residence of the parties but also even if subsidiary, common citizenship of the parties). The following texts determine the law applicable: 2.12 What methods of dispute resolution are available to ■ cause of divorce or legal separation: Regulation (EU) resolve financial settlement on divorce? E.g. court, n°1259/2010 (“Rome III”) (in case the couple did not agree in mediation, arbitration? advance which law to apply, the judge applies article 8 which designates firstly the law of the habitual residence of the couple Parties are allowed to settle their divorce through mediation or at the time the court is seized); collaborative law. The solution of this process can be subject to ■ parental responsibility: 1996 Hague Convention on Parental ratification by the court. Responsibility matters (article 15 mainly designates forum law An arbitration court of family issues has recently been created. so French law, with some exceptions); Even if articles 2059 and 2060 of the Civil Code prohibit intern. ■ maintenance issues: 2007 Hague Protocol on the Law Applicable arbitration of extra-patrimonial issues (name, ground of divorce, to Maintenance Obligations mainly designates the law of the parental responsibility, parenthood, principle of compensatory habitual residence of the creditor (article 3); and allowance), patrimonial issues may be subject to arbitration as for

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division of matrimonial assets, the amount of the compensatory 4 Cohabitation and the Unmarried Family allowance (only after the introduction of a divorce proceedings) or the damages for the prejudiced spouse. The parties need to intro- duce an arbitration clause in their contract of marriage, or in an 4.1 Do cohabitants, which do not have children, have agreement. financial claims if the couple separate? What are the grounds

3 Marital Agreements to make a financial claim?

No maintenance or compensatory allowance is due in the case of a 3.1 Are marital agreements (pre and post marriage) separation of cohabitants, unlike in the case of a married couple. enforceable? Is the position the same if the agreement is a There is no support and assistance duty for the other in cohabitation. foreign agreement? Cohabitants are only untitled to palliative civil mechanisms such as the de in rem verso action. In rare cases, compensation can be paid to the cohabitee who has helped and participated in the evolution of a Strictly speaking, there is no equivalent in France to pre- and post- common business or asset (he will benefit from the increase in value). nuptial agreements where parties can, in advance, organise in a Cohabitants are also entitled to seize the family judge to order the contract all the financial consequences of their divorce, division of the properties owned jointly, in case no agreement is compensatory allowance and division of their assets included. reached by parties. Under French case law, compensatory maintenance cannot be According to the new article 373-2-9-1 of the Civil Code, the decided in advance and a French court would not enforce an agree- judge is now able grant the use of the family house to one of the ment on that matter if French law on maintenance issues is applied. parents when he is seized of a such a request. The agreement existing in France is the marriage contract which is entered into before the marriage and can be changed during the 4.2 What financial orders can a cohabitant obtain? course of marriage. It is enforced during the marriage and also when the marriage breaks down and sets out rules regarding the matrimonial property regime and the division of the assets only (cf. Aside exceptions, a cohabitant can only obtain financial orders relating question 2.2 above for the applicable law to division of assets under to children issues and the use of the family house (cf. section 5). the Hague Convention on the law applicable to Matrimonial Property Regime 1978 and the Council Regulation June 24, 2016). 4.3 Is there a formal partnership status for cohabitants (for The position of a French court could be different in the case of example, civil partnerships, PACS)? a foreign marriage agreement, which designated a foreign applicable law to maintenance obligation which authorises agreements covering maintenance claim. Cohabitants can decide whether to remain under the cohabitants There is a doctrinal discussion on whether a pre-nuptial or post- regime (which is an unformal regime with few duties) or conclude a nuptial agreement could be recognised by the French judge on the formal partnership: a civil pact of solidarity (PACS) (article 515-1, ground of maintenance obligations. CC). As a consequence, partners are legally bound by a duty of assistance and commit to a common life. European Enhanced Cooperation Regulation dated June 24, 2016 has contributed to the 3.2 What are the procedural requirements for a marital recognition of formal partnership status among participant states. agreement to be enforceable on divorce? 4.4 Are same-sex couples permitted to marry or enter other A marriage contract shall be entered into by a notary before the formal relationships in your jurisdiction? marriage. It is now possible to change it later without any time limit.

Same-sex couples are permitted to enter: 3.3 Can marital agreements cover a spouse’s financial ■ a civil pact of solidarity (PACS); or claims on divorce, e.g. for maintenance or compensation, or ■ marriage: the right for same-sex couples to marry has been are they limited to the election of the matrimonial property recognised in France since May 2013, and is governed by section regime? 74, 202-1 and 202-2 of the Civil Code. The law offers a favor matrimonii since same-sex couple can contract marriage if two conditions are met: the personal or residence law of one of As previously mentioned, French marriage contracts only cover the them authorises such union (section 202-1) and the French matrimonial property regime. public officer is competent (section 74). The latter is indeed If the parties elect a foreign applicable law (under the Hague competent to celebrate such union if a minimal link to France Protocol on the law applicable to maintenance obligation), and the is satisfied; for example, if a spouse’s parent has a secondary foreign law chosen allows them to sign a contract in advance on the house in France. As a consequence, an Italian and a Brazilian compensatory allowance, case law is uncertain on the validity of the living in Belgium can marry in France if their parents have a contract (French judges are reluctant to accept a contract’s validity, secondary house in Paris. especially if said contract states that there shall be no compensatory allowance). The Cour de Cassation prohibited, in 2015, a German contract suppressing compensatory allowance considering that it was 5 Child Maintenance against French public policy. There is a real uncertainty that the solution would be the same in a contract with an amount of the 5.1 What financial claims are available to parents on behalf maintenance predetermined. of children within or outside of marriage?

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Each parent, married or unmarried, has a duty to participate in the 6 Children – Parental Responsibility and needs of their children proportionally to their resources. In the case of a separation, any parent with custodial right is Custody allowed to obtain, in court, child maintenance. Mostly, the claim consists of a monthly allowance or the direct payment by the other 6.1 Explain what rights of custody both parents have in your parent, in whole or in part, of the children’s expenses (school, sport activities, health insurance, etc.). jurisdiction whether (a) married, or (b) unmarried? It may also take the form of: the payment of a sum of money to an accredited agency in charge of maintaining, on behalf of the Parental responsibility (“autorité parentale”) and custody (“fixation de la child, an index-linked annuity; a surrender of assets in usufruct; or résidence”) are two different concepts. Parental responsibility covers an allocation of assets yielding income. the rights and duties of each parent towards their child regarding essential matters such as residence, education, health, religion and so 5.2 How is child maintenance calculated and is it on, whilst custody covers the sole question of the residence of the administered by the court or an agency? child (i.e. at which parent’s residence the child shall live). Separation of parents, married or unmarried, does not, in principle, affect the joint parental responsibility. It is customary for Maintenance is calculated on the needs of the children and the joint parental responsibility to continue while one parent is awarded respective resources of the parents (the “available” income, which custody. It is only in rare cases, where the best interests of the child is the difference between income and compulsory expenses as require it, that the judge will order a unilateral parental responsibility. income/taxes, rent, loans, mortgage, etc.). In the case of a change If separated parents do not reach an agreement regarding custody, in the resources of the parents or the needs of the children, it can the court awards custody to one or the other parent, and be varied. access/visitation rights to the non-custodial parent. Courts also Chid maintenance is ordered by the family judge. In the case of allow alternate/shared residence, depending on many factors an unmarried couple, judicial action is an option. Unmarried parents mentioned in question 6.5 below. are not obliged to proceed through court, even though it is highly In certain cases, courts shall order the supervised access of one recommended. parent under the supervision of a trusted third party or in a desig- nated meeting place. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? 6.2 At what age are children considered adults by the court? For example, can a child seek maintenance during university? They are considered adults at the age of 18 years old. However, Article 371-2 of the Civil Code expressly states that the financial when a child reaches the “age of discernment”, he can be heard by support of parents does not end once the child becomes an adult (at the judge (it depends on his sovereign appreciation). The child’s 18 years old in France). A parent is required to provide financial voice grows gradually with his age until it is decisive. support until the day the child is in a stable situation. Therefore, parents’ financial support covers university expenses. 6.3 What is the duration of children orders (up to the age of 16 or 18 or otherwise)? 5.4 Can capital or property orders be made to or for the benefit of a child? Child-related decisions (parental responsibility, custody, visitation rights) last until they are 18 years old. However, for teenagers above As previously mentioned (cf. question 5.1 above), a capital or 15, it is difficult to impose the respect of custodial rights if he/she property order can be made, where the situation of the debtor allows is reluctant to satisfy it. it, but it is less common. 6.4 What orders can the court make in relation to children? 5.5 Can a child or adult make a financial claim directly Does the court automatically make orders in relation to child against their parents? arrangements in the event of divorce?

There is a difference between a maintenance obligation and alimony The court makes orders regarding parental responsibility, custody, obligation. visitation rights and child maintenance. The court shall also ratify A maintenance obligation aims at feeding and raising a child: any arrangement of parents under the condition it protects the best according to article 203 of the Civil Code, any child who is still interests of the child. studying and is not in a stable situation is entitled to make a financial The court automatically makes orders in relation to child claim against their parents even if he is an adult (above 18), under arrangements in the event of a divorce knowing that the principle is the conditions described above in §5.3. that separation has no consequences on the parental responsibility, An alimony obligation rests on family solidarity: according to as mentioned above at question 6.1. articles 205 and 206 of the Civil Code, any adult who has finished studies is able to claim alimony against any of his/her parents 6.5 What factors does the court consider when making (father/mother/grandparents/great-grandparents/spouse’s parents) orders in relation to children? in order to contribute to maintain a minimum standard of living (essential expenses for his living). The plaintiff needs to demon- strate his needs and that the debtor have sufficient income to The court’s decision as to custody is based on the paramount criteria support his/her family and contribute to this claim. of the child’s best interests. The following factors stated in article 373-2 and 373-2-11 of the Civil Code are taken into consideration: the practice previously

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followed by the parents; the feelings expressed by the child; the Any close relative has a say in relation to the arrangements for the ability of each parent to assume their duties and to respect the rights children as they are able to testify in the judicial process. There is of the other; eventually, the results of a court-ordered medical also a specific claim for step-parents or grandparents who are psychological expert assessment or social investigation (conducted entitled to ask the judge for visitation rights towards the child by social workers); and any duress or violence, physical or psycho- according to article 371-4 of the Civil Code. The European Justice logical, carried out by one parents upon the other. Court has recently ordered that the visitation right mentioned in Alternate/shared residence often requires that the following Brussels II bis includes grandparents (CJUE, May 31, 2018, n°C- conditions are met: the age of the child; the proximity of parents’ 335/17). The step-parent who has resided with the child and residence; the availability of each parent; the ability of the parents his/her parent, who participated to his/her education, maintenance to discuss; and so on. and has formed affective bounds is entitled to ask for visitation rights also. 6.6 Without court orders, what can parents do unilaterally? Mediation or collaborative law can be used to resolve disputes relating to children. For example, can they take a child abroad?

7 Children – International Aspects Any issue concerning parental responsibility (residence of a child, especially in another country, changing of school, major health decision to be made and so on) shall be a joint decision and in the 7.1 Can the custodial parent move to another state/country case of a disagreement, one parent should seek a court order. without the other parent’s consent? However, a parent is presumed to act with the other’s agreement for usual acts. A custodial parent cannot decide to relocate without the consent of the other parent or the leave of the court, unless the court had 6.7 Is there a presumption of an equal division of time previously awarded unilateral parental responsibility (which is between separating or divorcing parents? extremely rare as previously mentioned).

There is no such presumption written in French law. The welfare of 7.2 Can the custodial parent move to another part of the the child remains the paramount criteria. Nevertheless, alternate state/country without the other parent’s consent? residence remains the principle.

Please see the answer to question 7.1. 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation 7.3 If the court is making a decision on relocation of a child or divorce? abroad, what factors are taken into account?

Yes, they are. There are no specific rules about relocation abroad in the Civil Code

or any other text. The welfare of the child remains the paramount 6.9 Is a welfare report prepared by an independent consideration. Family courts will scrutinise the factors mentioned professional or is the decision taken by the Judge alone? If in question 6.5 and other factors such as the previous information so, does the child meet the Judge? of the other parent of the relocation project, reasons for relocation, the good faith of the relocating parent, the need for stability and the age of the child, the continuity/offer of education, the length of the It depends on the case. The judge can take his/her decision alone. relocation, the distance to the relation country, the ability of the The hearing of a child is not mandatory and, in any case, must be relocating parent to respect the rights of the other, the separation requested by the child himself and authorised by the judge provided of siblings, and so on. that the child has a sufficient degree of understanding.

In cases where the judge has no sufficient element, or there is an allegation that a child presents certain troubles, he/she shall order a 7.4 If the court is making a decision on a child moving to a social investigation (by social workers or an association specialised different part of the state/country, what factors are taken into in family issues), or designate an expert (either a psychiatrist or a account? psychologist) who is an independent professional.

Please see the answer to question 7.3. 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a 7.5 In practice, how rare is it for the custodial parent to be lawyer? allowed to relocate internationally/interstate?

Yes. In cases where a child meets the judge, he is represented by a Even though each case is unique and every factor should be lawyer appointed by the lawyer’s Bar independently from the parents’ investigated, it is difficult to obtain a positive decision of relocation advisors. There is no cost for such assistance. as family courts often consider that the loss of relationship with the non-relocating parent is contrary to the welfare of the child. 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or 7.6 How does your jurisdiction deal with abduction cases? grandparents or siblings. What methods of dispute resolution For example, is your jurisdiction a party to the Hague are available to resolve disputes relating to children? Convention?

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France ratified the Hague Child Abduction Convention. French case One of the other notable evolutions in family law in France law is in accordance with the guide of good practice of The Hague concerns surrogacy. French law still prohibits any surrogacy contract Convention. and does not acknowledge the validity of any foreign legal The “bureau du droit de l’Union, du droit international privé et de l’entraide convention (section 16-7 of the Civil Code). However, given that civile” of the Ministry of Justice has been designated as the Central the European Court of Human Rights sentenced France in 2014 for Authority. violation of article 8 of the European Convention, French courts Once checked, the request received by the Central Authority is now admit to transcript birth certificates mentioning the child’s forwarded to the general prosecutor of the Court of Appeal where paternal affiliation and maternal affiliation only towards the the abducting parent resides. The parties are encouraged by the surrogate mother. Moreover, recent decisions from the Cour de Central Authority to reach an agreement. If mediation fails, the Cassation ( July 2017) have opened the possibility for wives to intro- prosecutor requests an emergency petition for return to be heard duce an adoption request to adopt the child. In October 2018, the before the family judge. It is recommended that the parent hires a French Supreme Court has asked the CEDH for her consultative lawyer, even if not mandatory, especially if the abducting parent opinion regarding the refusal to transcript the mother affiliation raises exception for defence. Prosecutors often think that the case particularly when she has given her gamete. The CEDH has is the parent’s business and do not strongly fight these exceptions. answered that French law is in accordance with the European Alternatively, the “left-behind” parent may choose to bypass the convention as it offers a possibility of recognition of the bound Central Authority and proceed directly to the court, using an emerg- between the child and his mother. As a consequence, each state shall ency procedure. determine the form of this recognition. The court states that the transcription is not mandatory and that the adoption is an acceptable 8 Overview form of recognition. This decision is already criticised as it maintains the status quo ante. Decisions regarding surrogacy keep being applied differently by the lower courts which creates a climate 8.1 In your view, what are the significant developments in of uncertainty surrounding the concrete right of the intent mother family law in your jurisdiction in the last two years? to formalise her parenthood with her child.

The new mutual consent divorce is the main development of the last 8.2 What are some of the areas of family law which you think two years, as previously exposed. should be looked into in your jurisdiction? Also, there has been profound evolution in the alternative ways of resolution of family issues such as mediation, “procédure As previously mentioned, the issue of the international recognition participative” (based on a contract signed by the parties bounding of the conventional mutual consent divorce, which is a private them to collaborate jointly and in good faith so as to obtain a mutual divorce, should be looked into as the Regulation Brussels II ter only agreement – section 2062 to 2067 of the Civil Code) and arbitration, enters into effect next August 1, 2022. as mentioned above at question 2.12.

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 Tel +33 1 42214199 10 rue de Seze 75009 Email: [email protected] Paris URL: www.avocat-sussman.fr France

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

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Germany Germany

Marie Baronin von Maydell

MEYER-KÖRING Nikolaus J. Plitzko

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

Jurisdiction is primarily based on the grounds of the Council 1.4 What is the procedure and timescale for a divorce? Regulation (EC) No. 2201/2003 of 27 November 2003, the so-called “Brussels II bis Regulation”. According to article 3 of this Regulation, Germany, as a Member State, has jurisdiction for divorce Divorce has to be filed by a lawyer to the family court. In case of proceedings if: an uncontested divorce, the other party is not required to hire a ■ the spouses are habitually resident in Germany; lawyer. ■ the spouses were last habitually resident in Germany, if one of There is no foreseeable timeframe for a contested divorce. If the them still resides there; parties reach a comprehensive divorce settlement beforehand, ■ the respondent is habitually resident in Germany; including the equalisation of pension rights, an uncontested divorce ■ in the event of a joint application, either of the spouses is can be finalised within three to six months. habitually resident in Germany; ■ the applicant is habitually resident in Germany and resided there 1.5 Can a divorce be finalised without resolving other for at least one year immediately before the application was associated matters? For example, children and finances. made; ■ the applicant is habitually resident in Germany for at least six Ex officio, the family court adjusts the pension rights of both parties months immediately before the application was made and is a on divorce, which basically means that court transfers half of the German national; or gained pension rights during marriage to the other party. However, ■ both spouses have the German nationality. the parties are entitled to conclude the pension rights in a divorce If no court of a Member State has jurisdiction according to the settlement. bis Brussels II Regulation, German law determines jurisdiction. Other associated matters such as maintenance, matrimonial Conformable to section 98 of the Family Procedure Act (FamFG) property and child-related matters are only resolved within the a German court has jurisdiction if one of the spouses is of German divorce procedures, if one of the parties files a corresponding nationality. motion.

1.2 What are the grounds for a divorce? For example, is 1.6 Are foreign divorces recognised in your jurisdiction? If there a required period of separation, can the parties have an so, what are the procedural requirements, if any? uncontested divorce? According to article 21 of the Brussels II bis Regulation, divorces of Apart from hardship cases (e.g. severe domestic violence), divorce is another Member State are recognised without any special procedure. granted if the marriage has failed. Other foreign divorces need to be recognised by the state adminis- The breakdown of marriage is presumed unchallengeable if the tration conformable to section 107 of the FamFG. parties are separated for more than a year and the divorce is uncon- tested. In case of a separation longer than three years, consent 1.7 Does your jurisdiction allow separation or nullity between the parties is not required. proceedings? 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” There are no separation proceedings in Germany. Nullity proceed- ings are possible on the grounds of section 1313 of the German divorce, i.e. without any court involvement? Civil Code (BGB), but the chances are very low.

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1.8 Can divorce proceedings be stayed if there are case (e.g. duration of the marriage, child education). Usually spousal maintenance orders are temporary. In extreme cases, spousal main- proceedings in another country? tenance is ordered for lifetime.

Yes, according to article 19 of the Brussels II bis Regulation a 2.7 Is the concept of matrimonial property recognised in German family court shall stay the proceedings if divorce proceed- ings were brought before the court of a Member State first. your jurisdiction?

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

2.2 Do matrimonial regimes exist and do they need to be 2.8 Do the courts treat foreign nationals differently on addressed by the court on divorce? Is there a default divorce, if so, what are the rules on applicable law? Can the matrimonial regime? court make orders applying foreign law rather than the law of the jurisdiction? German law recognises four different matrimonial regimes. By default, spouses obtain the community of accrued gains In case of foreign relations, the court having jurisdiction applies the (“Zugewinngemeinschaft”). In a (pre-)marital agreement, the spouses law the spouses agreed upon on the grounds of article 5 of Council can choose a separate property (“Gütertrennung”), a community of Regulation (EU) No. 1259/2010 of 20 December 2010 (Rome III). property (“Gütergemeinschaft”) or a special community of accrued In absence of a choice, the law applicable is determined on the gains between Germany and France (“Wahl-Zugewinngemeinschaft”). grounds of article 8 of the Regulation. In general, German law is Family court does not need to address the matrimonial regime applicable if the spouses are or were last habitually resident in upon divorce unless one of the spouses files a motion. In this case, Germany or are both German nationals. Failing that, German law is court needs to decide within the divorce proceedings. applicable if a German family court has jurisdiction for the divorce. Foreign nationals are not treated differently on divorce. German 2.3 How does the court decide what financial orders to family courts used to apply foreign law quite regularly before the Rome III Regulation became effective. Also, now, courts apply make? What factors are taken into account? foreign law if chosen by the parties or applicable for other reasons.

The family court only gives a ruling, if one party files a specific 2.9 How is the matrimonial home treated on divorce? motion, e.g. claims concerning the matrimonial regime, mainten- ance or other financial claims. If the parties do not agree, the family court can assign the matrimonial home to one party, if one of the spouses files a motion. 2.4 Is the position different between capital and The decisive factor taken into account by the court is the wellbeing maintenance orders? If so, how? of children, if existing and the ownership. However, the court ruling does not affect the ownership. Court orders on capital are based on the matrimonial regime and follow a different procedure than maintenance payments. Capital 2.10 Is the concept of “trusts” recognised in your orders only concern the development during the time of the jurisdiction? If so, how? marriage. Maintenance payments, however, also include the behav- iour of the parties during the marriage and a prospect for the future. In general, yes, but not between spouses.

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

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2.12 What methods of dispute resolution are available to The applicable law concerning spouses does not extend to cohabitants. Only on the general grounds of German civil law can resolve financial settlement on divorce? E.g. court, claims be made against each other. There are no specific rules for mediation, arbitration? cohabitants.

Spouses can seek mediation from a specially trained lawyer or even 4.2 What financial orders can a cohabitant obtain? a judge during court proceedings. The competent court also tries to reach a settlement prior to giving a ruling. Arbitration is not recognised in case of divorce. Cohabitants may agree on a special relationship agreement (so-called “Partnerschaftsvertrag”). Otherwise, financial orders are subject to the German civil law. 3 Marital Agreements 4.3 Is there a formal partnership status for cohabitants (for 3.1 Are marital agreements (pre and post marriage) example, civil partnerships, PACS)? enforceable? Is the position the same if the agreement is a foreign agreement? No. A registered partnership was only possible for same-sex couples. Pre- and post-nuptial agreements are legally binding in Germany, if they comply with the formalities and are not unjust or immoral. An 4.4 Are same-sex couples permitted to marry or enter other agreement is enforceable if these requirements are fulfilled. formal relationships in your jurisdiction? Foreign pre- or post-nuptial agreements are generally upheld. Depending on the subject of the agreement and where it was Since 1 October 2017, same-sex marriage has been legal under concluded, the agreement will not only be examined in its morality German law. Before that time, same-sex couples were only able to and unfairness but will also be reviewed on its consistency with the register their partnership (“Eingetragene Lebenspartnerschaft”). public policy clause (ordre public). After 30 September 2017, same-sex couples cannot enter into a If it does not comply, the rules of the German Family Law will registered partnership (“Eingetragene Lebenspartnerschaft”). Registered be applied without regard to the foreign agreement. partnerships originating from before 30 September 2017 can be

transferred into a marriage, but do not need to be. 3.2 What are the procedural requirements for a marital agreement to be enforceable on divorce? 5 Child Maintenance

In order to give effect to the agreement, a notary must record pre- nuptial agreements with both parties being present according to 5.1 What financial claims are available to parents on behalf section 1410 of the BGB. Post-nuptial agreements must either be of children within or outside of marriage? notarised or recorded by court in order to give effect to the agree- ment if it is concluded while divorce proceedings are pending. If In cases of joint custody (married or unmarried parents), both the agreement is concluded after the divorce is legally binding, e.g. parents have to enforce financial claims on behalf of the child. In concerning post-marital maintenance, a notarisation or recording by case of a separation of the parents, the primary caregiving parent court is no longer necessary. can make claims (e.g. child maintenance or child benefit The choice of a matrimonial property regime always needs to be (“Kindergeld ”)) against the other parent according to section 1629 of notarised. the BGB. If one of the parents has sole custody, this parent must Since 29 January 2019, the Matrimonial Property Regulation (No. make financial claims on behalf of the child. 2016/1103), as well as the Registered Partnership Property Regulation (No. 2016/1103), require that an agreement shall be 5.2 How is child maintenance calculated and is it expressed in writing, dated and signed by both spouses. Additionally, the formal requirements of the Member State in which the spouses administered by the court or an agency? have their habitual residence shall apply (article 23). Generally, both parents are subject to paying child maintenance, 3.3 Can marital agreements cover a spouse’s financial especially if the child is of age. If the child is underage, the primary claims on divorce, e.g. for maintenance or compensation, or caregiver fulfils his maintenance obligation by taking care of the child. The other parent has to pay child maintenance. are they limited to the election of the matrimonial property Child maintenance can be ordered by court or be administrated regime? by the child welfare office “Jugendamt”. The latter can calculate the amount but can only certificate the claim by mutual agreement of Yes, marital agreements can cover financial claims on divorce the parents. additional to the choice of the matrimonial property regime. The amount of child maintenance is calculated on the basis of the parent’s income after taking certain liabilities into account. 4 Cohabitation and the Unmarried Family Under consideration of the child benefit (“Kindergeld”) the amount is based on the guidelines of the courts of appeal. The “Düsseldorfer Tabelle” is widely used in Germany. Higher or special demand of the 4.1 Do cohabitants, which do not have children, have child can be awarded additionally by the court having jurisdiction. financial claims if the couple separate? What are the grounds to make a financial claim? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? For example, can a child seek maintenance during university?

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Child maintenance has to be paid until the end of professional In case of joint custody, both parents need to agree on major life education, for instance until the end of university or education in decisions of the child, such as religious education, schooling, general. This principle is restricted if the child is able to meet its habitual residence and medical treatments. Decisions regarding the demands on an own income. At the same time, the child is not everyday life can be made by the primary caretaking parent. In cases required to take a job during its education. of equally shared residence, both parents can make decisions regarding everyday life. Parents can generally take a child abroad if 5.4 Can capital or property orders be made to or for the there is no warning for the specific country. Only if the other parent benefit of a child? can prove that there is a serious risk of child abduction, the court will forbid a trip abroad.

In general, child maintenance has to be paid monthly. The family 6.7 Is there a presumption of an equal division of time court cannot make a capital order. between separating or divorcing parents? 5.5 Can a child or adult make a financial claim directly against their parents? No. A specific agreement or court order is needed. Recently, there was a political discussion whether such a presumption should be applied, but it was declined. The primary caregiver represents a child on financial claims. Once the child has reached the age of 18 he/she must make a claim 6.8 Are unmarried parents treated in the same way as directly against both parents in his/her own name. married parents when the court makes orders on separation 6 Children – Parental Responsibility and or divorce? Custody Yes. Concerning visitation rights always and concerning custody, a preceding court order granting joint custody might be necessary. 6.1 Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried? 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If Married parents automatically have joint custody. so, does the child meet the Judge? Unmarried parents need to agree on joint custody in front of the youth welfare office (“Jugendamt”) or joint custody can be ordered by A welfare report is prepared by the youth welfare office (so called family court. Otherwise, only the mother has sole custody. “Jugendamt”). Additionally, court appoints a guardian ad litem, who

investigates what solutions are in the best interest of the child. 6.2 At what age are children considered adults by the court? Furthermore, experts on special topics can be consulted. Finally, the Judge has to hear the child before deciding. An exception can only Children are considered adults at the age of 18. be made if the child is too young.

6.3 What is the duration of children orders (up to the age of 6.10 Is there separate representation for children in your 16 or 18 or otherwise)? jurisdiction and, if so, who would represent them, e.g. a lawyer? If the court order does not contain a different duration, court orders are valid until the child is of age. The family court usually assigns a guardian ad litem (“Verfahrensbeistand”). Only in exceptional cases or because of severe 6.4 What orders can the court make in relation to children? time pressure, a guardian ad litem is not assigned. Does the court automatically make orders in relation to child arrangements in the event of divorce? 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or The family court can make diverse orders in relation to children. grandparents or siblings. What methods of dispute resolution The most common orders concern visitation rights and custody. are available to resolve disputes relating to children? Court orders on children are only included in the divorce, if one party files a special motion. In general, court makes an order apart Other adults (e.g. grandparents) do not have a say in front of the from the divorce. family court. However, they can testify as a witness and they have an own visitation right they can claim, if they have or had a good 6.5 What factors does the court consider when making relationship with the child prior to the separation of the parents. orders in relation to children? The family court encourages the parents to reach a mutual agree- ment. Furthermore, parents can seek mediation or consultation from the youth welfare office (“Jugendamt”). First of all, and of capital importance, the family court takes the

wellbeing and the best interests of the children into account. 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?

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If a parent has sole custody (“Sorgerecht ”) for the child, this parent 7.6 How does your jurisdiction deal with abduction cases? also has the right to determine the habitual residence For example, is your jurisdiction a party to the Hague (“Aufenthaltsbestimmungsrecht”) of the child. This means this parent can move anywhere in the world and relocate the child without the Convention? other parent’s consent. If the parents have joint custody, the consent of both parents is necessary. If the parents cannot agree, a court Germany has been a party of the Hague Convention on the civil order is necessary. aspects of international child abduction of 25 October 1980 since 1 December 1990. Return orders under article 8 of this convention 7.2 Can the custodial parent move to another part of the are easier to obtain than a return order if the child was abducted within the borders of Germany. state/country without the other parent’s consent?

8 Overview German jurisdiction does not differentiate between moving abroad or moving to a different part of the country. 8.1 In your view, what are the significant developments in 7.3 If the court is making a decision on relocation of a child family law in your jurisdiction in the last two years? abroad, what factors are taken into account? The amendment to legalise same-sex marriages was definitively the Under German law, family court does not decide on relocation of most important development regarding changes in the law. the child. If one of the parents wants to relocate (no matter if However, the impact on the practice of law is not very significant. abroad or within the country) the court will have to decide whether During the last couple of years, the practice shifts towards cases it is in the best interests of the child to move with this parent or stay concerning children instead of cases concerning financial matters with the other parent. As mentioned in question 7.1, court will between spouses. Since the decision of the Federal Supreme Court transfer the right to determine the habitual residence (BGH) on 1 February 2017 on shared residence (“Wechselmodell ”), (“Aufenthaltsbestimmungsrecht ”) of the child. Factors taken into this question is becoming more and more relevant. account are continuity (personal and geographical), parenting skills, tolerance regarding a good relationship between the child and the 8.2 What are some of the areas of family law which you think other parent, the ability to promote the child’s personal skills and the should be looked into in your jurisdiction? child’s will.

German legislation needs to find a way to adjust the rights of 7.4 If the court is making a decision on a child moving to a cohabitants to the family law. Fewer people get married, but the law different part of the state/country, what factors are taken into is not adapted to this situation, yet. account? Furthermore, the process of divorce could be sped up. In particular, in most cases it is not just for the spouses to wait one year Please see the answer to question 7.3. to be able to file for divorce. Special reasons for an immediate divorce should also be recognised. Finally, the consequences of shared residence (“Wechselmodell ”) in 7.5 In practice, how rare is it for the custodial parent to be regards to maintenance, tax issues, registered address and child allowed to relocate internationally/interstate? benefit need to be adjusted.

In Germany it is fairly common to allow a parent to relocate with the child. There is no possibility to forbid a parent to relocate, even if this would be in the best interest of the child. A decision can only be made concerning the child.

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

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

Nikolaus J. Plitzko studied German and Swiss Law at the Universities of Bonn and St. Gallen and completed his Legal Clerkship amongst others at the family court of appeals in Cologne and the German embassy in Bern, Switzerland. After graduating, he joined MEYER-KÖRING and was admitted as a lawyer in 2018 after taking special training in German family law. He practises in all areas of family law, especially divorce, spousal and child maintenance and property issues on national and international level. He is a member of the German Bar Association, Committee on Family Law of the German Bar Association and Bonn Bar Association.

MEYER-KÖRING Tel: +49 228 72636 706 Oxfordstrasse 21 Email: [email protected] 53111 Bonn URL: www.meyer-koering.de Germany

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

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Hong Kong Hong Kong

Sharon Ser

Withers Philippa Hewitt

1 Divorce that a party has a substantial connection with Hong Kong, it may not be the most appropriate forum if there is another choice. Then the parties become embroiled in a forum dispute. 1.1 What are the grounds of jurisdiction for divorce Issues as to substantial connection and forum non conveniens regularly come before the court in Hong Kong and the principles were further proceedings? For example, residence, nationality, domicile, confirmed in the Court of Final Appeal case of SPH v SA (Forum etc.? and marital agreements) [2014] HKFLR 286.

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

More recently, the Court of Appeal in ZC v CN [2014] HKFLR 469 set out a comprehensive and in-depth review of the meaning of 1.3 In the case of an uncontested divorce, do the parties substantial connection and the authorities. Here, substantial need to attend court and is it possible to have a “private” connection was not found. The courts have made it clear that it is divorce, i.e. without any court involvement? not their intention to create a convenient offshore divorce jurisdiction, although substantial connection does allow some flexibility in Hong Kong’s uniquely cosmopolitan population. In If the parties agree that they will not contest the divorce, then addition, it is possible to have a substantial connection with more neither party need attend court. The matter is placed in the Special than one jurisdiction. This can mean that, even if the court agrees Procedure list and fast-tracked.

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The decree nisi is pronounced in open court and a note of the order consider the application then. If it is requested after decree nisi, there made is provided to the petitioner who then draws up both the decree must be an application by summons (see LPK v SH and HSH (expedi- nisi and the order made. tion of decree absolute) [2012] HKFLR 257). It is not possible to have a “private” divorce in Hong Kong. A See Court of Appeal case JAH v VH [2013] HKEC 2017, [2013] petition or joint application must be filed and a decree obtained from HKFLR 664 for a summary of the law on decree absolute. the court. If the petitioner fails to make the application for decree absolute, the respondent may apply three months after the date of the expiration of the time limit, namely six weeks plus three months. The 1.4 What is the procedure and timescale for a divorce? application must be made inter partes and supported by an affidavit.

Once the respondent has filed his/her Form 4 and indicates that he/she does not intend to defend the divorce (or is out of time), the 1.6 Are foreign divorces recognised in your jurisdiction? If petitioner can file an application for directions for trial supported by so, what are the procedural requirements, if any? an affidavit in support of petition (Form 21) to get a date for decree nisi. The decree nisi will be pronounced in open court, and if there are Foreign divorces (and legal separations) are recognised in Hong outstanding matters yet to be agreed, such as a dispute over finances Kong under Part IX MCO if they have been obtained by means of or children, these will be adjourned to a later date (see Practice judicial or other proceedings and are effective under the law of that Direction 15.4 Special Procedure). The decree will record the place place. The spouse must have been habitually resident (and/or and date of the marriage, the names of the parties, the ground of domiciled) and/or was a national of that place. irretrievable breakdown and the fact on which it was based. The Exceptions are contained in s61 and include instances where the draft order will set out the order for costs and whether the matter divorce was obtained without one of the spouses being given has been adjourned. If the parties have settled, the order will reflect sufficient notice or an opportunity to take part in the proceedings their settlement and the matter can proceed in due course to decree or where it would be manifestly contrary to public policy. absolute. The leading case, which changed the law in respect of enabling a The decree absolute can be applied for within six weeks of the decree party to make an application for ancillary relief despite a foreign nisi by the petitioner. decree is the Court of Final Appeal case of ML v YJ [2011] 1 HKC If the respondent indicates in his/her Form 4 that he/she wishes 447. to dispute the petition, he/she has 29 days from the receipt of the There are no specific procedural requirements to recognise a notice of proceedings (in Form 3), inclusive of the date of receipt, foreign decree but the fact of the legal separation of decree must be to file an answer. If outside the jurisdiction, the time for filing the proved. See section 58 MCO. acknowledgment of service is extended to 21 days and the time for 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 1.7 Does your jurisdiction allow separation or nullity that the marriage has broken down due to other facts. 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 Yes, Hong Kong has provision for both judicial separation and the court. nullity applications. Disputed divorces are rare in Hong Kong. Where they do occur, With an application for judicial separation, the party must plead they inevitably increase the timescale for the divorce significantly. one or more of the five facts but must not plead that the marriage Should the matter go to trial, directions will be given and a date set. has broken down irretrievably. The jurisdictional requirements are The usual procedure for trial will then be followed with cross the 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. The unreasonably defend a petition or where the matter could have 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 is either void from the start due to the status of the parties or void- 1.5 Can a divorce be finalised without resolving other able because of circumstances surrounding the marriage which associated matters? For example, children and 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 of proceedings and the jurisdictional requirements are broader; as well the decree nisi, this is generally not done until all matters are resolved. as the three requirements outlined above for divorce, a party can In respect of children, a decree absolute will not be granted without apply for nullity if the marriage was celebrated in Hong Kong or if an s18 declaration (s18 Matrimonial Proceedings and Property the respondent at the time of the petition was resident in Hong Ordinance Cap 192 (MPPO)) that “arrangements for the welfare of Kong, or both parties were resident in Hong Kong at the date of the every child have been made and are satisfactory or are the best which petition. can be devised in the circumstances”. A decree absolute will not be made if there are applications or 1.8 Can divorce proceedings be stayed if there are appeals pending, or if issues relating to an application under s17A MCO have not been resolved. S17A MCO relates to the duty of the proceedings in another country? court to consider the financial position of the respondent following a divorce based on either one or two years’ separation. Yes, and they regularly are if the other country is deemed to be the If there is an emergency, the petitioner can apply to expedite the more appropriate jurisdiction. Hong Kong follows England and decree absolute. The usual reason for such a request is an imminent Wales and the principles in cases such as Spiliada Maritime Corp v birth or the remarriage of the petitioner. If it is the respondent who Consulex Ltd [1987] AC 460 (see Court of Appeal cases DGC v SLC would like to expedite, he/she must ask the petitioner to make this (nee C) [2005] 3 HKC 293 and LN v SCCM (Forum non conveniens) application. If the request is before the decree nisi, the court will [2013] HKFLR 358).

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The leading case on forum non conveniens is the Court of Final No, Hong Kong is a common law jurisdiction very similar to Appeal case of SPH v SA [2014] HKFLR 286. Here, the Court of England and Wales. Final Appeal found overwhelmingly that the wife had jurisdiction as of right and therefore there was no need to advance further in the 2.3 How does the court decide what financial orders to Spiliada test. Having found that the wife could pursue her petition, the burden shifted to the husband in his stay application to show make? What factors are taken into account? that Germany was distinctly more appropriate, which he failed to do. It was material in this case that the wife had lived and worked in The court is obliged to consider the factors set out in s7(1) MPPO Hong Kong for many years, and the marriage, although relatively as follows: short, was conducted in Hong Kong. It shall be the duty of the court in deciding whether to exercise Since the Court of Final Appeal case of ML v YJ mentioned its powers under s4, 6 or 6A in relation to a party to the marriage above at question 1.6, the Hong Kong government passed an and, if so, in what manner, to have regard to the conduct of the amendment to the MPPO “to empower the courts in Hong Kong parties and all the circumstances of the case including the following to order financial relief for a former spouse whose marriage has matters, that is to say: been dissolved or annulled, or who has been legally separated … in (a) the income, earning capacity, property and other financial a place outside Hong Kong”. This provision came into force in resources which each of the parties to the marriage have or are March 2011 as Part IIA of the MPPO. likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each 2 Finances on Divorce of the parties to the marriage have or are likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the break- 2.1 What financial orders can the court make on divorce? down of the marriage; (d) the age of each party to the marriage and the duration of the marriage; Financial orders the court can make are found in the MPPO s4, 5, 6 (e) any physical or mental disability of either of the parties to the and 6A. marriage; On granting a decree of divorce, the court may make orders for (f ) the contributions made by each of the parties to the welfare of periodical payments, secured periodical payments and lump sums (s4). the family, including any contribution made by looking after the Under s5(2) MPPO, the court can order similar financial provision home or caring for the family; and for the child of the family, although the court is able to make such (g) in the case of proceedings for divorce or nullity of marriage, the an order before decree nisi on behalf of children (s5(1)). value to either of the parties to the marriage of any benefit (for The court can make the following property adjustment orders example, a pension) which, by reason of the dissolution or under s6: annulment of the marriage, that party will lose the chance of (a) an order that a party to the marriage shall transfer to the other acquiring. party, to any child of the family or to such person as may be The court must bear these factors in mind at all times and case specified in the order for the benefit of such a child such law has developed interpreting these laws. The leading case in Hong property as may be so specified, being property to which the Kong for the determination of marital financial claims is the Court first-mentioned party is entitled, either in possession or of Final Appeal case of LKW v DD [2010] 13 HKCFAR 582; [2011] reversion; HKFLR 106. (b) an order that a settlement of such property as may be so This case laid down four guidelines and five steps to assist the specified, being property to which a party to the marriage is so judiciary, practitioners and lay people alike. entitled, be made to the satisfaction of the court for the benefit The four guidelines are as follows: of the other party to the marriage and of the children of the (i) the objective is to achieve a fair outcome; family or either or any of them; (ii) a rejection of discrimination; (c) an order varying for the benefit of the parties to the marriage (iii) there should be a yardstick of equality against which judges can and of the children of the family or either or any of them any check their tentative views which should be departed from only ante-nuptial or post-nuptial settlement (including such a with “good, articulated reasons”; and settlement made by will or codicil) made on the parties to the (iv) a rejection of minute retrospective investigations. marriage; The Court of Final Appeal set out the following five steps: (d) an order extinguishing or reducing the interests of either of the 1. Identify the assets. parties to the marriage under any such settlement; and 2. Assess the parties’ financial needs. If there are insufficient (e) an order for the sale of such property as may be specified in the assets, an assessment will be made at this point. order, being property in which or in the proceeds of sale of 3. If there are assets surplus to needs, the court must consider the which, either or both of the parties to the marriage have a “sharing principle”. beneficial interest, either in possession or reversion, and for the 4. Considering whether there should be a departure from equality, use of the proceeds of such sale. the court may consider a list of potential and common “material The court has the power to sell property which has been the factors” which include a consideration of the facts including the subject of an order under s4, 5 or 6 (s6A). source of the asset, conduct, length of marriage, contributions Orders for Maintenance Pending Suit can be made prior to the to the family – both financial and non-financial and any claims decree nisi (s3 MPPO). for compensation. Orders for variation can be made under s11 MPPO. 5. Deciding the outcome weighing up all the considerations,

particularly in Step 4. 2.2 Do matrimonial regimes exist and do they need to be As the Hong Kong Ordinance is so similar to that of England and addressed by the court on divorce? Is there a default Wales, in particular s7 MPPO with s25 Matrimonial Causes Act matrimonial regime? 1973, the case law is also very similar and practitioners in England will be familiar with the cases cited in Hong Kong judgments.

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2.4 Is the position different between capital and No, the courts in Hong Kong do not treat foreign nationals differently. So long as a party can meet the jurisdictional maintenance orders? If so, how? requirements set out under s3 MCO (see question 1.1 above), they can bring an action here. No, the same factors apply to both capital and maintenance orders. The courts can only apply foreign laws if an application is made However, capital will be subject to the sharing principle, if needs are for a mirror order in Hong Kong; Lexi Fori applies in Hong Kong covered, but it is less clear in respect of equal sharing of future as in England & Wales. income. It will depend on the facts as to whether future income can be taken into account: A v B [2016] HKFLR 332. There is no statu- tory duty in Hong Kong to consider a clean break. 2.9 How is the matrimonial home treated on divorce?

The matrimonial home is treated in the same way as any other marital 2.5 If a couple agrees on financial matters, do they need to asset in Hong Kong and will form part of the marital asset pool. 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 If there is agreement between the parties, they must submit their which relates to housing for low income families which have been settlement in the form of a consent summons to court for a court sold to them for less than the market value. Any order for the order. Even if there are no assets and no children, it is advisable to transfer of such properties requires the consent of the Housing finalise all matters and dismiss all claims in a consent order sealed by Authority and is subject to the sale restrictions of the Housing the court. 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 dispute as to children or finances, the chances are that they will have jurisdiction? If so, how? to attend either the First Appointment which is the initial hearing in respect of disputed finances, or the Children’s Appointment if there The concept of “trusts” is recognised in Hong Kong. The devel- is disagreement in respect of the children, or both. opment of trusts originated in the need for tax planning to mitigate Estate Duty but this was abolished in 2006 with the passing of the Revenue (Abolition of Estate Duty) Ordinance. The law in relation 2.6 How long can spousal maintenance orders last and are to trusts in Hong Kong was recently revised in April 2014 with the such orders commonplace? 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 for The order for spousal maintenance cannot begin before making an 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 or to scrutiny, including trusts. The leading case in Hong Kong where remarriage, whichever is earlier, unless there is an agreement between the trust funds were found to be a resource of the marriage is KLK the parties that the order should cease at a certain date or on a certain v PLTO Court of Final Appeal 21 of 2013; [2014] HKFLR 329. occurrence (such as permanent cohabitation with another partner). Hong Kong often looks to English case law in respect of trusts in If the periodical payments are to cease on a specified date, this is divorce. 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 grounds? your jurisdiction?

Since the passing of the Matrimonial Proceedings and Property Yes, in Hong Kong, many cases go before the courts arguing (Amendment) Ordinance 2010, Hong Kong courts have had the whether or not a property is matrimonial. power to make orders in respect of financial claims following a Often the cases involve pre-marital or post-marital property which foreign divorce. one party is seeking to take out of the marital pool on this basis. The grounds for making such an application are set out in Part Also, in Hong Kong, many cases come before the court to determine IIA MPPO ss29AA–29AL. They are very similar to the English Part whether an asset which is beneficially owned by one of the parties, III Matrimonial and Family Proceedings Act 1984. does in fact belong to that party. It is common for family members An applicant must first ensure that he/she has jurisdiction to to put property in the names of their children or parents without the make the application. He/she will be excluded if he/she has intention of transferring ownership. remarried but applications can be made so long as the divorce is Leading cases on this topic include the Court of Final Appeal recognised as valid according to the laws in Hong Kong (s29AB). decisions in KLK v PLTO Court of Final Appeal 21 of 2013; [2014] The applicant must first obtain leave to make the application and HKFLR 329 and Court of Appeal PW v PPTW (Ancillary relief; non- similar jurisdictional hurdles must be cleared as with divorce in matrimonial property) [2015] HKFLR; No. 224 of 2013. respect of domicile, habitual residence and substantial connection. Under s29AF(2), the considerations which the court must take into 2.8 Do the courts treat foreign nationals differently on account are as follows: divorce, if so, what are the rules on applicable law? Can the (a) the connection that the parties to the marriage have with Hong court make orders applying foreign law rather than the law of Kong; (b) the connection that those parties have with the place where the the jurisdiction? marriage was dissolved or annulled or where they were legally separated;

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(c) the connection that those parties have with any other place to be effective, citing the case in Radmacher where the issues were outside Hong Kong; governed by English law and the relevance of the German law and (d) any financial benefit that the applicant or a child of the family choice of law clause was that it demonstrated that the intention of the has received, or is likely to receive, in consequence of the parties was that they were to be bound by their agreement. Therefore, divorce, annulment or legal separation, by virtue of any agree- it would appear that the position is the same if the agreement is foreign ment or the operation of the law of a place outside Hong Kong; or not but there may be evidence in respect of intention which may be (e) if an order has been made by a competent authority outside relevant as to the weight which should be given to such agreements. Hong Kong requiring the other party to the marriage to make Hong Kong, therefore, follows English law as it develops in this any payment or transfer any property to, or for the benefit of, area, but there has yet to be a test case concerning the enforceability the applicant or a child of the family: of marital agreements. (i) the financial relief given by the order; and (ii) the extent to which the order has been complied with or 3.2 What are the procedural requirements for a marital is likely to be complied with; (f) any right that the applicant has, or has had, to apply for financial agreement to be enforceable on divorce? relief from the other party to the marriage under the law of any place outside Hong Kong and, if the applicant has not exercised The facts surrounding the finalisation of the agreement will be that right, the reason for that; material as to how much weight can be placed on the agreement. (g) the availability of any property in Hong Kong in respect of There must be both procedural and substantive fairness. An agree- which an order for financial relief in favour of the applicant may ment will only carry full weight: be made; “if each party had entered into it of his or her own free will, (h) the extent to which any order for financial relief is likely to be without undue influence or pressure, having all the information enforceable; and material to his or her decision to enter into the agreement and (i) the length of time that has elapsed since the date of the divorce, intending that it should be effective to govern the financial annulment or legal separation. consequences of the marriage coming to an end … Once leave has been granted, the court has power to make the Enforcement of the agreement could be rendered unfair by the usual financial orders under ss4–6A MPPO set out above. occurrence of contingencies unforeseen at the time of the The leading case in Hong Kong for Part IIA applications is C v H agreement or where, in the circumstances prevailing at the time (Foreign Decree: Part IIA) [2012] HKFLR 199. of separation, one partner would be left in a predicament of real need while the other enjoyed a sufficiency.” (Para. 34 SPH v SA.) The parties should finalise the agreement within 28 days before 2.12 What methods of dispute resolution are available to the marriage. This is not a rule but an indication that both parties resolve financial settlement on divorce? E.g. court, had sufficient time to consider their positions before the wedding. mediation, arbitration? The parties should also both sign the document as a deed and if there is a language element, a translator should be present. There At present, dispute resolution in Hong Kong comprises court should be independent legal advice on both sides. litigation, mediation and collaborative practice. Hong Kong does not have a system in place yet for family 3.3 Can marital agreements cover a spouse’s financial arbitration although from January 2016 there has been a pilot claims on divorce, e.g. for maintenance or compensation, or scheme for, private adjudication. For the time being, private adjudication can only be for financial disputes, not matters involving are they limited to the election of the matrimonial property children or the divorce itself. The scheme is consensual and parties regime? agree to be bound by the decision of the private adjudicator. Mediation is well-established in Hong Kong, both privately and Such agreements can cover a spouse’s financial claims on divorce, as part of the court procedure. All parties who are in dispute over including maintenance and compensation. The parties cannot oust finances and children must go through the Financial Dispute the jurisdiction of the court and every agreement which a party seeks Resolution procedure and Children’s Dispute Resolution procedure to enforce will be scrutinised by the Hong Kong courts. respectively. This procedure is designed to promote court-assisted There is no matrimonial property regime in Hong Kong. settlement.

4 Cohabitation and the Unmarried Family 3 Marital Agreements

4.1 Do cohabitants, which do not have children, have 3.1 Are marital agreements (pre and post marriage) financial claims if the couple separate? What are the grounds enforceable? Is the position the same if the agreement is a to make a financial claim? foreign agreement?

There is no right under matrimonial legislation for a cohabitee to The Court of Final Appeal in SPH v SA (Forum and marital agreements) make a financial claim in Hong Kong if they separate. The party [2014] HKFLR 286 held that the principles enunciated in the English must fall back on the remedies available to those arising out of the Supreme Court case of Radmacher v Granatino [2011] 1 AC 534 general laws of, e.g., contract (if any contract has been entered into represents the law on marital agreements in Hong Kong. The court to govern the parties’ rights), or property, e.g., contribution to the also held that there would be no need to distinguish between pre- purchase price or loan repayments on a property may give rise to a and post-marital agreements. beneficial interest and/or a right to live in the property, as may a It was further held in SPH v SA that foreign elements may be common intention by the parties in that regard, even if the property relevant to the question whether the parties intended their agreement is registered in the other party’s name.

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4.2 What financial orders can a cohabitant obtain? the court thinks reasonable having regard to the means of that parent; (d) an order requiring the transfer to the applicant for the benefit A cohabitee in Hong Kong does not have a right to apply for of the minor, or to the minor, by such parent or either of such financial orders other than as an applicant in the civil courts parents, of such property, being property to which the parent is mentioned above. entitled (either in possession or reversion), as the court thinks The position is different if there are children of the relationship. reasonable having regard to the means of that parent; and In that case, in addition to the financial provision set out in question (e) an order requiring the settlement for the benefit of the minor, 5.1 below, the parent who has the care and control of the children to the satisfaction of the court, of such property, being property can apply for a carer’s allowance. This is a monthly sum which is to which such parent or either of such parents is so entitled, as payable to compensate the carer for any restriction in employment the court thinks reasonable having regard to the means of that as a result of looking after the children. The courts in Hong Kong parent. have made it clear that such an allowance cannot be as generous to See the Court of Appeal case of IDC v SSA (Lump sum for children WGL v ASB (Child a cohabitee as to a spouse. The leading case is of unmarried parents) [2014] HKFLR 267. maintenance under the GMO) [2013] HKFLR 391.

5.2 How is child maintenance calculated and is it 4.3 Is there a formal partnership status for cohabitants (for administered by the court or an agency? example, civil partnerships, PACS)?

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

differently, albeit the overarching consideration for the courts is the welfare and best interests of the child irrespective of the marital 5.3 For how long is a parent required to pay child status of his/her parent. maintenance or provide financial support for their children? The law in respect of children of married parents is found in For example, can a child seek maintenance during university? MPPO. The law in respect of children of unmarried parents is found in the Guardianship of Minors Ordinance Cap 13 (GMO). The court can make financial provision orders for children of The usual order in respect of children’s maintenance is that the order married parents under s5 MPPO for periodical payments, secured should continue until the child reaches 18, or completes his/her full- periodical payments and lump sum, which can be payable in time education, whichever is later. instalments. Under s6 MPPO, the court can order a property Under s10(1) MPPO, the court cannot make an order in favour adjustment order in favour of a child and the jurisdiction of the of a child who has reached 18, but under s10(3) an order can be court is the same as that relating to an order in favour of a spouse. made if: (a) that child is, or will be, receiving instruction at an educational establishment or undergoing training for a trade, The court can make financial provision orders for the children of profession or vocation, whether or not he/she is also, or will also be, unmarried parents under s10(2) GMO as follows: in gainful employment; or (b) there are special circumstances which (a) an order requiring payment to the applicant by the parent or justify the making of the order or provisions (for example, if the either of the parents of the minor of such lump sum (whether child is suffering from a disability). in one amount or by instalments) for the immediate and non- There are similar provisions for children of unmarried parents recurring needs of the minor or for the purpose of enabling any under the GMO s12A(3). liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that 5.4 Can capital or property orders be made to or for the parent; benefit of a child? (b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the main- Yes, please see question 5.1 above. tenance of the minor as the court thinks reasonable having

regard to the means of that parent; (c) an order requiring the securing to the applicant by such parent 5.5 Can a child or adult make a financial claim directly or either of such parents, to the satisfaction of the court, of against their parents? such periodical sum towards the maintenance of the minor as

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Yes, it is possible for a child to make a claim against his/her parents 6.5 What factors does the court consider when making if he/she has a guardian ad litem to make the application on his/her orders in relation to children? behalf. An individual who has attained 18 years but who is still in full-time education or undergoing training for a trade, profession or vocation can make an application against a parent. The court must regard the best interests of the child as the first and paramount consideration (s3 GMO and s48 MCO). With this in 6 Children – Parental Responsibility and mind, the court must take into account the views of the child, having regard to his/her age and understanding, and “any material informa- Custody tion” including any social welfare report. In Hong Kong, there is not a list of factors to which the courts 6.1 Explain what rights of custody both parents have in your must have regard, but in practice the courts do look at a list of factors recommended by the Law Reform Commission which is jurisdiction whether (a) married, or (b) unmarried? based on the English Children Act 1989, and which includes some elements of the Australian Family Law Act. Such factors include the (a) Both parents in a marriage have equal rights of custody. child’s physical, emotional and educational needs, the likely effect on (b) Under s3(1)(c) GMO, only the mother has rights of custody him/her of any change in circumstances, his/her age, maturity, sex, where the parents are unmarried. For the father to gain equal social and cultural background, any harm which he/she has suffered rights, he must make an application to the court pursuant to or is 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 demonstrated by each of the parents. 6.2 At what age are children considered adults by the court?

Under s3 of the Interpretation and General Clauses Ordinance Cap 1, 6.6 Without court orders, what can parents do unilaterally? a child is defined as a person who has not yet attained 18 years of age. For example, can they take a child abroad?

6.3 What is the duration of children orders (up to the age of If there are no proceedings before the court, the parents can move freely with their children. Upon the commencement of proceedings, 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, Under s19(1) MPPO, the court can make an order for custody for a consent of the other party is required. Once a custody order has been child of the family who is under the age of 18. There is no specific made, there will be a restriction on the removal of the child from mention in the GMO and therefore the definition under Cap 1 is Hong Kong without leave of the court, unless the parent removing adopted. the child files a written undertaking to return the child to the Unfortunately there is some inconsistency in the MPPO, as jurisdiction and the other parent consents in writing to the removal. s18(5)(a) (which requires the court to be satisfied that the arrangements for the child are the best that can be achieved under the circumstances) defines a child of the family to whom the section 6.7 Is there a presumption of an equal division of time applies as being a minor child who is below the age of 16 years or between separating or divorcing parents? who is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation. This legis- There is no presumption of an equal division of time, although the lation is currently under review. courts recognise that children normally benefit from access to both parents. The court will look at all the factors and decide what is in 6.4 What orders can the court make in relation to children? the children’s best interests given their education and commitments.

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 married parents when the court makes orders on separation The court can make orders for joint or sole custody, care and control or divorce? and access. “Custody” in Hong Kong means the right to make important decisions on behalf of the child, for example in respect Similar provisions apply under the GMO and the MPPO in respect of education, health and religion. The non-custodial parent can of custody although, as noted above, the father of an illegitimate always be heard on these issues on his/her application to the court. child will have to make an application under s3(1)(d) to be “Care and control” is the day-to-day care of the children and recognised as having equal rights to the mother. “access” comprises the arrangements which ensure the children’s right 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 6.9 Is a welfare report prepared by an independent control) [2010] HKFLR 184. The courts will occasionally make an professional or is the decision taken by the Judge alone? If order for shared care if that is the agreement between the parties. so, does the child meet the Judge? The court will make an order in respect of children. There is currently no provision for “no order” to be made in the Hong Kong courts. The court must also make a s18 declaration (see question Normally, the judge will be guided by the social welfare report 1.5), whether there are children of the family or not. prepared by an officer of the Director of Social Welfare as the “eyes and ears” of the court. However, such a report is only to assist the

judge and there is no presumption that any recommendation in the report will be followed by the judge. The judge can meet the child

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and in 2012, the Chief Justice produced a helpful guidance note to There are no statutory guidelines in respect of factors a court should assist judges should there be a judicial meeting. This note covers take into account, but the welfare of the child is always paramount. whether there should be a meeting, the factors a judge should bear After that, the court will normally consider the reasonable proposals in mind and the procedure to follow. of the parent wishing to leave, scrutinising whether there is a genuine motivation for the move and not to bring contact with the other parent to an end. The arrangements for the child must be 6.10 Is there separate representation for children in your practical and set out well. The effect on the primary carer is impor- jurisdiction and, if so, who would represent them, e.g. a tant in Hong Kong as part of the welfare of the child principle. The lawyer? effect on the parent left behind is also important and the court will carefully consider continuing contact. A child may have his/her own separate legal representation or be represented by the Official Solicitor. Guidance has been given by 7.4 If the court is making a decision on a child moving to a the Court of First Instance in C v S (On separate representation) [2018] different part of the state/country, what factors are taken into HKFLR 159 ([2018] HKCFI 390). Guidance has also been given by the Chief Justice in Practice Direction SL6 in 2012, which provides account? a list of circumstances in which the judge could consider making an order that the child be separately represented. See answer to question 7.2.

6.11 Do any other adults have a say in relation to the 7.5 In practice, how rare is it for the custodial parent to be arrangements for the children? E.g. step-parents or allowed to relocate internationally/interstate? grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to children? In practice, primary carers can normally leave Hong Kong if the arrangements are suitable for the child. The Hong Kong courts see At present, there is very little adults, other than the parents, can do a number of such applications each year involving expatriates unless they apply under the laws of guardianship. The law in this seeking to go “home”. Increasingly, however, if the parenting is area is currently under review. deemed to be shared, the courts may not allow the child to Disputes relating to children are often dealt with through private permanently relocate if the children were benefitting from the mediation. shared care. Since 2012, the family court has adopted a pilot scheme for Children’s Dispute Resolution which aims to support “mothers and 7.6 How does your jurisdiction deal with abduction cases? fathers, so that they are able to effectively parent their children post For example, is your jurisdiction a party to the Hague separation or divorce. The intention is to ensure that whilst the best Convention? interests of children remain the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere. The focus is therefore on the Hong Kong is a signatory to the Hague Convention and the children’s best interests together with the duties and responsibilities provisions of the convention were given effect by the enactment of of their parents”. Please see Practice Direction 15.13. the Child Abduction and Custody Ordinance Cap 512 in 1997. Collaborative practice is also available for the resolution of Habitual residence in respect of Hague applications and issues as to children’s disputes. removal of children from Hong Kong were considered in the Court of Appeal case of JEK v LCYP CACV 125 of 2015; [2015] HKFLR 425; [2015] 5 HKC 293. 7 Children – International Aspects 8 Overview 7.1 Can the custodial parent move to another state/country without the other parent’s consent? 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? No, if one parent wants to move permanently from the jurisdiction of Hong Kong, consent of the other parent is required. There is also a requirement to obtain an order for leave for a child to be A significant development in Hong Kong in the last two years was permanently removed, or, in the event that the child has already left, the signing of the Proposed Arrangements with the Mainland on that leave be given allowing him/her to remain permanently outside Reciprocal Recognition and Enforcement of Judgements on the jurisdiction, whether or not by consent. Matrimonial and Related Matters in June 2017. This long awaited agreement between Hong Kong and the PRC will finally allow divorce petitions from the Hong Kong courts to be recognised in 7.2 Can the custodial parent move to another part of the China and for orders of the courts on both sides to be enforceable. state/country without the other parent’s consent? With the increase in cross-border disputes this was an important step. Although it was anticipated that this would come into force in late 2018, it is, at the time of writing, yet to be finalised. As Hong Kong is a relatively small country, this does not apply. There was a small and tentative move towards the recognition of

same-sex couples in the Court of Final Appeal case of Director of 7.3 If the court is making a decision on relocation of a child Immigration v QT [2018] HKCFA 28, in which the court found that abroad, what factors are taken into account? the partner in a same-sex civil partnership from England could apply for a dependant’s visa in Hong Kong.

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

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

Withers Tel: +852 3711 1600 20/F Gloucester Tower, The Landmark Email: [email protected] 15 Queen’s Road, Central URL: www.withersworldwide.com Hong Kong

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

Withers Tel: +852 3711 1600 20/F Gloucester Tower, The Landmark Email: [email protected] 15 Queen’s Road, Central URL: www.withersworldwide.com Hong Kong

Withers is the world’s first international law firm dedicated to the business, Sharon and her firm have represented clients in Hong Kong on the major personal and philanthropic interests of successful people, their businesses, issues facing family law litigants with Court of Final Appeal decisions that families, banks and advisers. have changed the direction of family law. The firm has advised 45% of the top 100 UK Sunday Times Rich List and over Withers has 18 offices spread across Europe, the US, the Caribbean, Asia and 25% of the top 100 US Forbes Lists, as well as numerous families in Asia. Australia with over 160 partners worldwide. Established in 2008, our Hong Kong office has US, UK, Australian, BVI and www.withersworldwide.com Hong Kong qualified lawyers who advise on family law, wealth planning and tax structuring. Our lawyers are also experts on probate and trust work, litigation (for companies and individuals), employment, immigration and corporate finance transactions.

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Indonesia Indonesia

Satrio Law Firm Andrew I. Sriro

1 Divorce themselves are not required to attend court at any point in the proceedings if they appoint an attorney at law to represent them in the proceedings. Additionally, the plaintiff must provide at least two 1.1 What are the grounds of jurisdiction for divorce witnesses during the evidentiary phase of the proceedings to confirm the alleged grounds for the divorce, such as that the parties proceedings? For example, residence, nationality, domicile, are no longer living together, or that the marital relationship is inhar- etc.? monious. Courts are required to order mandatory mediation at the first In Indonesia, the Religious Courts have jurisdiction over marriages court hearing. Both parties must attend the first mediation attempt between Muslims, while the District Courts have jurisdiction over with or without their attorney at law, unless the parties are unable to marriages conducted outside the Muslim religion. At least one spouse be present due to a medical condition or if a party is under custodial must reside in Indonesia at the time of filing of divorce proceedings. care, resides outside the country or is required to carry out a In a marriage between an Indonesian citizen and a foreign citizen, if professional obligation. jurisdiction is based on the residence of the foreign spouse, the foreign In the event the spouses agree to the divorce and all of the terms spouse must be residing in Indonesia pursuant to a temporary or and conditions concerning child custody and property distribution, permanent residency visa at the time the complaint if filed. Business, the divorce proceedings can be shortened through waivers of the social and tourist visas are insufficient. plaintiffs reply brief and the defendant’s response brief, a truncated With respect to venue, the court with jurisdiction over the residence evidentiary hearing and waivers of submissions of closing of the defendant is the appropriate court for proceedings. If the statements. residence of the defendant is truly unknown, the court with jurisdiction over the plaintiff ’s residence will be the appropriate venue 1.4 What is the procedure and timescale for a divorce? for the proceedings. Marriages involving an Indonesian citizen and a citizen of another state officiated outside of Indonesia (“Foreign Mixed Marriages”) Upon submission of a Divorce Complaint, the court will conduct must be registered with the Indonesian embassy or consulate with service or process. If the defendant is in Indonesia, service will jurisdiction over the state wherein the marriage ceremony took place usually be completed within about two weeks. If the defendant is and registered with the Civil Registry Office in Indonesia upon the located in a foreign country, service will proceed through diplomatic couple’s return to Indonesia. Both the Religious Court and the District channels and will be completed within three months. If the Court will require evidence of registration at the Civil Registry Office. defendant does not appear at the first and second summoned hearings, the process will be repeated. If the defendant still fails to appear, the court will proceed to 1.2 What are the grounds for a divorce? For example, is review the evidence presented by the plaintiff. If a prima facie case is there a required period of separation, can the parties have an made, a default judgment granting the divorce will be declared. uncontested divorce? Upon appearance of the defendant, the court will order mandatory mediation. Mediation is intended to conclude within 40 Indonesian divorces are permissible on a no-fault basis. However, days. However, if the spouses are making progress toward resol- sufficient reason establishing that the parties are no longer able to ution, this period can be extended. The mediation period can be reside together as husband and wife must be established. shortened as well if a spouse states that the mediation has failed. Incongruity in goals, outlooks on life, religious practices and other Following mediation, a court hearing will be held where the medi- benign reasons are sufficient. Disharmony is a recognised ground ator will announce the success or failure of the mediation. If the for divorce. A divorce petition need not be contested, though court mediation succeeds, it will be reflected in a settlement agreement proceedings are required. signed by the spouses and the mediator and its provisions will be set forth in the court’s divorce decision. Regardless of whether there is a mediated settlement agreement, 1.3 In the case of an uncontested divorce, do the parties the case will then proceed. The court will offer the defendant an need to attend court and is it possible to have a “private” opportunity to submit a written answer to the complaint. If there divorce, i.e. without any court involvement? is a mediated settlement agreement, the answer will accept the settlement agreement. If there is no agreement, the answer will respond to the allegations of the plaintiff, and set forth a counter- A “private” divorce is not possible. With the exception of claim if desired. A hearing will be set for the presentation of the mandatory participation in court ordered mediation, the parties defendant’s answer and counterclaim.

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At the hearing for the presentation of the defendant’s answer, the parties concerning the fairness and propriety of the foreign and pleading will be provided to the plaintiff. A hearing will then be set domestic decisions prior to the Indonesian court’s willingness to for the presentation of the plaintiff ’s reply. enforce its own orders. At the hearing for the presentation of the plaintiff ’s reply, the pleading will be provided to the defendant. A hearing will then be set 2 Finances on Divorce for the presentation of the defendant’s response. At the hearing for the presentation of the defendant’s response, the pleading will be provided to the plaintiff. A hearing will then be set 2.1 What financial orders can the court make on divorce? for the presentation of the plaintiff ’s evidence. At the hearing for the presentation of the plaintiff ’s evidence, the In divorces between Muslims, the Religious Court will order that the plaintiff will present witnesses, documents and experts to support husband pay a separation payment and a payment for up to three his/her claim. A hearing will then be set for the presentation of the months of alimony. No other alimony is available to a Muslim wife. defendant’s evidence. In non-Muslim divorces, alimony is an available remedy and can At the hearing for the presentation of the defendant’s evidence, the be ordered to continue for any duration the court deems appropriate. defendant will present witnesses, documents and experts to support In all divorces, the court has authority to divide joint property, his/her claim. A hearing will then be set for the presentation of both designate separate property and award child support until the child the plaintiff ’s and the defendant’s conclusions. reaches 18 years of age. At the hearing for the presentation of conclusions, the written conclusions will be exchanged between the litigants, and a hearing date 2.2 Do matrimonial regimes exist and do they need to be will be set for the reading of the court’s decision. At the hearing for the reading of the court’s decision, the court will addressed by the court on divorce? Is there a default read its decision aloud. The court will then close the proceedings. matrimonial regime? After closure of the proceedings, the court will prepare its written decision which will be available to the parties within two to four Indonesia is a jurisdiction. However, the weeks. communal estate may be rejected through the execution of a pre- or Once a party receives the court’s decision, the party will have 14 post-marital agreement, which can adopt any reasonable alternate days to appeal the decision. If a timely appeal is not filed, the decision arrangement desired by the parties; excluding the avoidance of child will become final and binding. support obligations which is a prohibited subject of advance agree- An appeal may be filed to the High Court. The High Court will ment. render its decision within around one-and-a-half years. An appeal of the High Court’s decision to the Supreme Court must 2.3 How does the court decide what financial orders to be filed within 14 days of receipt of the decision. The Supreme Court will render its decision within about one and a half years. make? What factors are taken into account? Proceedings in the first instance, at the Religious Court or the District Court, will be completed within three to six months from the Indonesian courts will look at the status and lifestyle of the parties convening of the first hearing. during marriage for purposes of determining separation, alimony and child support payments. All contested property will be reviewed 1.5 Can a divorce be finalised without resolving other based upon title documents, payment transactions, bank statements associated matters? For example, children and finances. and other relevant evidence.

Divorces in Indonesia can be finalised without resolving child 2.4 Is the position different between capital and custody, support, alimony and other financial matters. maintenance orders? If so, how?

1.6 Are foreign divorces recognised in your jurisdiction? If Capital orders are based on evidence of the time of acquisition of so, what are the procedural requirements, if any? the asset (pre- or post-marriage), whether the asset was acquired as a gift or bequest from a parent or child and the terms of any pre- or post-marital agreement. Maintenance orders are based on the status Foreign divorces are recognised in Indonesia. The foreign divorce and lifestyle of the parties during marriage for purposes of deter- decree must be authenticated by the Indonesian embassy or mining separation, alimony and child support payments. consulate with jurisdiction over the state issuing the divorce decree.

2.5 If a couple agrees on financial matters, do they need to 1.7 Does your jurisdiction allow separation or nullity have a court order and attend court? proceedings?

The terms of a valid agreement would need to be presented to the Indonesian civil procedure does not provide proceedings for separ- relevant court as evidence and set forth in the court’s decision as a ation. Nullification proceedings are available in cases of underage part of the court proceedings required to acknowledge the divorce. marriage and marriages violating religious or civil laws, such as providing a false identity data. 2.6 How long can spousal maintenance orders last and are such orders commonplace? 1.8 Can divorce proceedings be stayed if there are proceedings in another country? In Muslim marriages, a one-time spousal maintenance award covering a period of three months is the only spousal maintenance No. A case filed in Indonesia will proceed toward a final decision. available. For non-Muslim marriages, the court has complete However, competing decisions will create a situation where the Indonesian court will be required to consider the arguments of the

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discretion to order maintenance for any period and up to the end of Arbitration and extrajudicial mediation are not enforceable forms of the recipient’s life. dispute resolution in financial settlement proceedings relating to divorce, though the parties may voluntarily engage in these forms of 2.7 Is the concept of matrimonial property recognised in dispute resolution. Ultimately, in the event a dispute is not resolved voluntarily by the parties, court adjudication and enforcement would your jurisdiction? be required.

Yes, Indonesian is a community property jurisdiction. The parties 3 Marital Agreements are entitled to opt out of all or part of the community estate through pre- and post-marital agreements. Where there is no pre- or post- marital agreement, all property acquired during marriage through the 3.1 Are marital agreements (pre and post marriage) employment or work of a spouse and through investments of enforceable? Is the position the same if the agreement is a community property are considered as joint property of the spouses foreign agreement? in equal portions. Property acquired prior to marriage and property acquired by gift or inheritance by one spouse from his/her parent or child during marriage are considered to be that spouse’s separate Pre- and post-marital agreements are enforceable in Indonesia property. provided that they are duly executed by competent parties with a clear subject matter, clear terms and conditions and for a lawful 2.8 Do the courts treat foreign nationals differently on purpose.

divorce, if so, what are the rules on applicable law? Can the 3.2 What are the procedural requirements for a marital court make orders applying foreign law rather than the law of agreement to be enforceable on divorce? the jurisdiction?

Full court proceedings in the format of divorce proceedings or Foreign nationals are treated equally to Indonesian citizens in all breach of contract proceedings would be required. The process aspects of divorce proceedings. would follow the procedural outline set forth at question 1.4.

2.9 How is the matrimonial home treated on divorce? 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or Indonesia does not formally recognise the concept of a are they limited to the election of the matrimonial property “matrimonial home”. The court would look to determine a property distribution based on the concepts of marital and separate property regime? alone. In the event that there are sufficient assets to permit an allocation which permits one of the parties to remain in a Yes, a marital agreement can cover a spouse’s financial claims on community property matrimonial home offset against other marital divorce for all matters except child support. property, the court would consider this on the basis of the relevant equities in the case, primarily concerning whether the caregiver of 4 Cohabitation and the Unmarried Family the children would like to remain in that home. However, if the home is a party’s separate property, that party’s rights in the home will be confirmed. 4.1 Do cohabitants, which do not have children, have financial claims if the couple separate? What are the grounds 2.10 Is the concept of “trusts” recognised in your to make a financial claim? jurisdiction? If so, how? Indonesian law does not recognise cohabitants or unmarried family Indonesia is a civil law jurisdiction and is not a party to the Hague practices. Parties have no rights to financial claims against one Trust Convention. Thus, an Indonesian trust cannot be created. another. However, an Indonesian court may look behind a foreign trust to attempt to arrive at an equitable decision. Most Indonesian courts 4.2 What financial orders can a cohabitant obtain? will not have had experience with trusts and thus expert testimony would be essential in assisting the court’s understanding of the issues in dispute. Cohabitants cannot claim any financial orders.

4.3 Is there a formal partnership status for cohabitants (for 2.11 Can financial claims be made following a foreign example, civil partnerships, PACS)? divorce in your jurisdiction? If so, what are the grounds?

Financial claims can be made following a foreign divorce. These No, there is no formal partnership status for cohabitants. would be limited to claims related to assets located in Indonesia, though assets located outside of Indonesia would be considered in 4.4 Are same-sex couples permitted to marry or enter other determining fair property distributions. formal relationships in your jurisdiction?

2.12 What methods of dispute resolution are available to No, same-sex couples are not permitted to marry or enter into resolve financial settlement on divorce? E.g. court, formal relationships. mediation, arbitration?

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5 Child Maintenance In the event a child is born of a legal marriage, or both the father and mother acknowledge paternity, both parents are deemed to have shared responsibility, custody and control over the upbringing of 5.1 What financial claims are available to parents on behalf their children. In the event of a divorce, the court will award full custody to the appropriate parent with the acknowledgment of of children within or outside of marriage? visitation arrangements. Custody awards favour the mother in Indonesia, though this predilection may be rebutted if there is In the event a child is born in the territory of Indonesia outside of evidence that the mother is of unsound character and the child’s best marriage, only the mother’s name will appear on the birth certificate. interests are served by granting custody to the father. Financial There is no compulsory law of acknowledgment of paternity by the capacity is not considered in this analysis. father and there are no procedures to compel a DNA test. As a Once a child reaches the age of 12, the child has the exclusive result, the mother has no cognisable rights to child support under right to choose to live with the mother or the father, provided the Indonesian law. elected parent agrees. If the father acknowledges paternity, the mother would have a right to file suit for child support. 6.2 At what age are children considered adults by the court? Parents have the right to claim child support in relation to children born within a lawful marriage. Indonesian law recognises the age of majority to be 18 years of age.

5.2 How is child maintenance calculated and is it 6.3 What is the duration of children orders (up to the age of administered by the court or an agency? 16 or 18 or otherwise)? Child maintenance is calculated based on the financial capabilities of both the mother and the father and the standard of living of the The duration of a children order is up to the age of 18 for non- marital relationship. Muslim families and 21 for Muslim families.

5.3 For how long is a parent required to pay child 6.4 What orders can the court make in relation to children? maintenance or provide financial support for their children? Does the court automatically make orders in relation to child For example, can a child seek maintenance during university? arrangements in the event of divorce?

Generally, for non-Muslim families, child support obligations end Courts may issue orders concerning all matters relating to a child’s upon the child reaching the age of majority, which is 18. For Muslim upbringing including, but not limited to: the specific or kind of families, child support orders continue until the child reaches 21 school the child will attend; visitation rights, dates and circumstances; years of age. religious practices, foreign and domestic travel; access to school records; participation in after school activities; and other material issues. 5.4 Can capital or property orders be made to or for the

benefit of a child? 6.5 What factors does the court consider when making orders in relation to children? Yes, capital or property orders can be made for the benefit of the child. The courts will consider the best interests of the child in all matters relating to a child. 5.5 Can a child or adult make a financial claim directly

against their parents? 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? Yes, technically. However, damages would be very difficult to prove and the claim would be novel as the author is unaware of any precedent for a claim by a child against a parent for child support. If a parent is in possession of the child’s passport, that parent is free The claim would have to occur after the child reaches the age of to travel domestically or internationally with the child, with or majority, and the claimant would be required to prove actual damages without a court order and with or without the other parent’s consent. arising out of the breach of payment obligations. A court order expressly prohibiting international travel will not be of significant utility unless a corresponding immigration exit 6 Children – Parental Responsibility and prevention order has been issued by the Minister of Law and Human Rights. Custody 6.7 Is there a presumption of an equal division of time 6.1 Explain what rights of custody both parents have in your between separating or divorcing parents? jurisdiction whether (a) married, or (b) unmarried? No, there is no presumption of an equal division of time between In the event a child is born in the territory of Indonesia outside of divorcing/separating parents. marriage, only the mother’s name will appear on the birth certificate. There is no compulsory law of acknowledgment of paternity by the 6.8 Are unmarried parents treated in the same way as father and there are no procedures to compel a DNA test. As a married parents when the court makes orders on separation result, the father has no cognisable rights to child custody or or divorce? visitation under Indonesian law.

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Custody awards favour the mother in Indonesia, though this 7.2 Can the custodial parent move to another part of the predilection may be rebutted if there is evidence that the mother is state/country without the other parent’s consent? of unsound character and the child’s best interests are served by granting custody to the father. Financial capacity is not considered in this analysis. Yes. Unless there is a specific court order preventing the move in Once a child reaches the age of 12, the child has the exclusive advance of the move, a custodial parent can move to another state right to choose to live with the mother or the father, provided the or country without the non-custodial parent’s consent. elected parent agrees. In the event a child is born in the territory of Indonesia outside 7.3 If the court is making a decision on relocation of a child of marriage, only the mother’s name will appear on the birth abroad, what factors are taken into account? certificate. There is no compulsory law of acknowledgment of paternity by the father and there are no procedures to compel a DNA test. As a result, the father has no cognisable rights to child The court will look at the best interests of the child, previous orders, custody or visitation under Indonesian law. whether the child is under the control of the custodial parent, the In the event a child is born of a legal marriage, or the father and propriety of the custodial parent continuing as the custodial parent the mother both acknowledge paternity, both parents are deemed to as well as the access of the non-custodial parent to visitation with have shared responsibility, custody and control over the upbringing the child. of their children. In the event of a divorce, the court will award full custody to the appropriate parent with the acknowledgment of 7.4 If the court is making a decision on a child moving to a visitation arrangements. Custody awards favour the mother in different part of the state/country, what factors are taken into Indonesia, though this predilection may be rebutted if there is account? evidence that the mother is of unsound character and the child’s best interests are served by granting custody to the father. Financial The court will look at the best interests of the child, previous orders, capacity is not considered in this analysis. whether the child is under the control of the custodial parent, the

propriety of the custodial parent continuing as the custodial parent 6.9 Is a welfare report prepared by an independent as well as the access of the non-custodial parent to visitation with professional or is the decision taken by the Judge alone? If the child. so, does the child meet the Judge? 7.5 In practice, how rare is it for the custodial parent to be The decision is taken by a panel of three judges alone, though a allowed to relocate internationally/interstate? welfare report prepared by an independent professional may be submitted as evidence in favour of a party’s position. In practice, the custodial parent may relocate at will unless there is a court order to the contrary. 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a 7.6 How does your jurisdiction deal with abduction cases? lawyer? For example, is your jurisdiction a party to the Hague Convention? There is no separate representation for a child, unless the matter is of a criminal nature, in which case the police will pursue the child’s Indonesia is not a signatory to the Hague Convention. Indonesian interests. courts take the unfortunate and contorted view that because a child is not chattel, no custody orders are subject to court enforcement 6.11 Do any other adults have a say in relation to the unless there is evidence of serious physical abuse. arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution 8 Overview are available to resolve disputes relating to children? 8.1 In your view, what are the significant developments in A step-parent, grandparent or sibling will generally have no rights in family law in your jurisdiction in the last two years? child arrangements, except in extreme circumstances for the protection of the child, or if the step-parent, grandparent or sibling There have been no significant developments in the field of family has formally adopted the child. law in the last two years.

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? Indonesian should become a signatory to the Hague Convention and the Indonesian courts and other Indonesian governmental agencies Yes. Unless there is a specific court order preventing the move in should change their current practice of refusing to enforce custody advance of the move, a custodial parent can move to another state orders. The current situation promotes distrust among co-parents or country without the non-custodial parent’s consent. and incentivises permanent violations of custody orders.

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Andrew I. Sriro is an American, a member of the California State Bar and the Indonesian Bar Association (PERADI), with licences to practise law in Indonesian, California and all US Federal courts. Andrew has been practising family law for 24 years in Indonesia. Andrew is a member of the International Academy of Family Lawyers. He holds a B.A. degree in economics, international finance and Asian studies from the University of Michigan, a J.D. degree (great distinction) from the University of the Pacific (California) and a LL.M. degree (cum laude) from Padjadjaran University (Indonesia). Andrew is fluent in both Bahasa Indonesia and English.

Satrio Law Firm Tel: +62 2598 1738 Satrio Tower, 6th Floor Fax: +62 520 3279 Jalan Prof. Dr. Satrio, Kav. C-4 Email: [email protected] Jakarta Selatan 12950 URL: www.sriro.com The Republic of Indonesia

Satrio Law Firm has a strong family law practice and focuses on representing regulatory compliance, foreign investment, real estate, maritime, aviation and foreign executives and individual in a wide range of family law matters. Our road transportation law, mining, energy, oil and gas law, family law and labour lawyers have many years of experience handling cases pertaining to law. We provide an integrated approach linking the complex issues arising in matrimonial property issues, child custody disputes, drafting of prenuptial client matters. agreements, as well as advising and representing clients on divorce cases for www.sriro.com mixed marriages. Our firm also provides legal documents for probate matters including wills, inheritance and estate. Satrio Law Firm is a leading full-service Indonesian law firm offering a wide array of services across most practice areas. We serve individual and corporate clients and governmental instrumentalities. Satrio Law Firm has wide experience in complex cross-border and local corporate transactions, mergers and acquisitions, finance, corporate law and

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Isle of Man Isle of Man

Louise Byrne

Quinn Legal Claire Clampton

1 Divorce The procedure for the divorce starts with a divorce application which needs to be fully completed by the applicant. This asks primary questions about the parties and the marriage. It is required that the 1.1 What are the grounds of jurisdiction for divorce marriage certificate or a certified copy of the marriage certificate is provided with the application (this is returned by the Court at a later proceedings? For example, residence, nationality, domicile, stage). The most important part of the divorce application is the etc.? details about the ground for divorce. If the application is based on the other party’s unreasonable behaviour it is important this is clear, You need to be domiciled in the Isle of Man or you need to have accurate and true. been habitually resident in the Isle of Man for a period of 12 months If the parties fully engage in a timely manner with the Court and prior to the divorce application being made. in such a way as to facilitate the divorce application by returning the Domicile is an established principle of the party intending to live forms served on them in the required manner, i.e. fully completed, here permanently or having permanent connection to the Island. dated and signed, and without challenge, we can usually reach the You do not need to have been married in the Isle of Man in order provisional stage of divorce (more commonly referred to as the decree to get divorced here but you do need to meet the residence criteria. nisi in the UK) within three months from the initial application being submitted. If all matters regarding children and finances are agreed 1.2 What are the grounds for a divorce? For example, is upon it would not be unreasonable for the divorce to be fully completed within six to nine months. there a required period of separation, can the parties have an If matters are contested this can take much longer. In cases where uncontested divorce? the parties do not agree about the financial aspects of the divorce then this timescale can range from 12–24 months. There is one ultimate ground for divorce which is that the relation- ship has irretrievably broken down. In order to prove this, there are 1.5 Can a divorce be finalised without resolving other five different grounds that can be pleaded by the applicant these are associated matters? For example, children and finances. as follows: a) that the other party has committed adultery; b) that the other party has behaved in a way that the applicant finds In principle, yes, the applicant can apply for the final order of to be intolerable; divorce six weeks after the pronouncement of the provisional order. c) that the parties have been separated for a period of two years The respondent, however, needs to wait three months after the and both parties consent to the divorce being made; pronouncement of the provisional order in order to apply for the d) that the other party has deserted the applicant and a period of same. two years has lapsed; and There are some risks in applying for the final order of divorce e) that the parties have been separated for a period of five years before the financial aspects have been resolved. For example, if and the other does not need to consent to this. there are various different assets or complex assets then if the parties are divorced the other party might lose a benefit of the asset should they no longer be treated as the spouse of a party. We need to be 1.3 In the case of an uncontested divorce, do the parties careful with this. need to attend court and is it possible to have a “private” However, the legal principle is that the final order should be divorce, i.e. without any court involvement? pronounced unless there are special circumstances that are case- specific. The application process for divorce under any of the afore- There is nothing preventing the final order of divorce being mentioned grounds can be done without the need for a hearing or a applied for if there are outstanding issues regarding contact court appointment requiring the parties’ attendance. The Court will arrangements. administratively deal with the divorce paperwork. It is not possible in this jurisdiction to have a private divorce without the Court’s 1.6 Are foreign divorces recognised in your jurisdiction? If involvement. The Court is needed in order to legally dissolve the so, what are the procedural requirements, if any? marriage. It is important this is achieved through the court process.

Yes – Section 78 of The Matrimonial Proceedings Act 2003 (“MPA 1.4 What is the procedure and timescale for a divorce? 2003”), provides that applications for financial relief after foreign divorce where (a) a marriage has been dissolved or annulled, or the

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parties to a marriage have been legally separated, by means of Section 32 of the MPA 2003 lists the factors the Court is required judicial or other proceedings in a foreign country, and (b) the to take into consideration when assisting to make any financial divorce, annulment or legal separation is entitled to be recognised as orders: valid in the Island, either party to the marriage may apply to the High (1) All the circumstances of the case, the first consideration being Court for an order for financial relief. Section 90 provides that given to the welfare while a minor of any child of the family “foreign country” means a country or territory outside the British who has not attained the age of 18. Islands. (2) As regards the exercise of its powers, the Court will consider: (a) the income, earning capacity, property and other financial 1.7 Does your jurisdiction allow separation or nullity resources the parties have or are likely to have in the fore- seeable future, including in the case of earning capacity proceedings? any increase in that capacity; (b) the financial needs, obligations and responsibilities which Section 11 of the MPA 2003 makes provision for an application to each of the parties has or is likely to have in the fore- be made for the annulment of marriage where the marriage can be seeable future; shown not to be a valid marriage: where it is evidenced to be void; (c) the standard of living enjoyed by the family before the where either party is under 16; or in other circumstances such as breakdown of the marriage; intermarriage, other current marriage existing or polygamous (d) the age of each party to the marriage and the duration of marriage. the marriage; Section 17 provides for (a rarely used) application for a separation (e) any physical or mental disability of either of the parties to order and, when made, it shall no longer be obligatory for the the marriage; applicant to reside with the respondent. The grounds for such an (f ) the contributions which each of the parties have made or application are the same as that used to ground an application for are likely in the foreseeable future to make to the welfare divorce. of the family, including any contribution by looking after the home or caring for the family; and 1.8 Can divorce proceedings be stayed if there are (g) the conduct of each of the parties, if that conduct is such proceedings in another country? that it would, in the opinion of the Court, be inequitable to disregard it.

Yes; Section 21(6), Schedule 1 of the MPA 2003, has effect in respect of cases in which matrimonial proceedings in the Island are to be, 2.4 Is the position different between capital and or may be, stayed by the Court where there are concurrent proceed- maintenance orders? If so, how? ings elsewhere (generally and subject to being listed) in respect of the same marriage. The provisions as set out in Section 32 as above are taken into account by the Court. Capital and Maintenance Orders implement 2 Finances on Divorce what is termed as the sharing principle, whilst maintenance is assessed mainly as to the evaluation of needs. The Court will also consider, as to the effect of the termination of a Maintenance Order, 2.1 What financial orders can the court make on divorce? if it is or is not appropriate to order that no maintenance is the correct outcome, i.e. called a “clean break”. Part 2, Section 26 of the MPA 2003 makes provision for certain financial orders. The following indicates the kinds of order which 2.5 If a couple agrees on financial matters, do they need to may be made: have a court order and attend court? (1) Provision for a Periodical Payments Order for a child or spouse. (2) Secured Periodical Payments Order for a spouse or a child. (3) Order for payment of a lump sum. If parties agree on financial matters, they can administratively agree (4) Order for Provision of Transfer of Property. the financial details in a proposed Consent Order for the Court’s (5) Order for a settlement, or variation of a settlement of property consideration. This is a drafted order that is submitted to the Court, or property interests. without the need for appearances. The agreement is then, when (6) Order for the Sale of Property. agreed by the Court, sealed as a Court Order and is fully binding on (7) Order for Pension Sharing. both parties. Even where parties agree matters between themselves, they ought to be advised to have that agreement reflected in a Court Order so that it is clearly binding and enforceable by reference to it 2.2 Do matrimonial regimes exist and do they need to be being a Court Order. addressed by the court on divorce? Is there a default matrimonial regime? 2.6 How long can spousal maintenance orders last and are such orders commonplace? The Isle of Man does not have a matrimonial property regime as such; there is no community of property and thus marriage in Orders for spousal maintenance are often made especially where principle does not have a proprietary effect. However, upon divorce there are children of the family and/or there is a material difference the Courts are given a very wide discretion to make a wide range of in the parties’ incomes and earnings. Such orders can be made for orders (referred to as “ancillary relief ”) including a reallocation or any duration including the joint lives of the parties. These orders even sale of property, putting assets on trust, lump sum payments, cease upon remarriage, unlike cohabitation which does not trigger periodical payments, orders regarding pensions, etc. (Part 2 and cessation but is, and can be, a relevant factor. Section 26 Matrimonial Proceedings Act 1973).

2.7 Is the concept of matrimonial property recognised in 2.3 How does the court decide what financial orders to your jurisdiction? make? What factors are taken into account?

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Whilst there is no statutory or other prescribed concept, the Courts As to foreign agreements, again generally, the same and like when considering applications concerning property, can treat marital provisions will apply. and non-marital property, or indeed inherited property, differently and make orders when viewed from such perspective. Non-marital 3.2 What are the procedural requirements for a marital property can sometimes be excluded from consideration in certain agreement to be enforceable on divorce? circumstances particularly where the needs of the parties do not require recourse to be made to and of it. No formal requirements currently exist and the agreement is not automatically enforceable and will be considered by the Courts as to 2.8 Do the courts treat foreign nationals differently on its enforceability. divorce, if so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of 3.3 Can marital agreements cover a spouse’s financial the jurisdiction? claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property No, in the Isle of Man, foreign law is not applied in the family regime? Courts.

Yes, agreements can expressly deal with income and capital aspects. 2.9 How is the matrimonial home treated on divorce?

4 Cohabitation and the Unmarried Family Whilst all financial resources will be taken into account, whether in joint names or otherwise, usually the matrimonial home is treated as matrimonial property irrespective of the route to it being acquired, 4.1 Do cohabitants, which do not have children, have i.e. bought by one party only. financial claims if the couple separate? What are the grounds

to make a financial claim? 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? Cohabitants generally do not have any specific rights to make a statu- tory or other claim against the other, except for maintenance for The Isle of Man Courts do recognise trusts in principle and a children. Any other claims would normally have to establish some number of matrimonial cases have had to deal with trusts and make interest in property. orders that take the resources from trusts into account. 4.2 What financial orders can a cohabitant obtain? 2.11 Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? There are very limited provisions currently existing and such may be dependent upon a co-ownership of real estate under the Partition Yes, Part 4, Section 78 of the MPA 2003, provides for such claims Act 1931 or by making a chancery claim for a declaration of an where the criteria is met for such and are subject to the leave of the interest. Court being obtained in the Isle of Man. No application may be made if either party has remarried, but generally, if a foreign divorce 4.3 Is there a formal partnership status for cohabitants (for has been made, relief may be applied for. example, civil partnerships, PACS)?

2.12 What methods of dispute resolution are available to Cohabitants can either be civil partners as a same-sex couple or a resolve financial settlement on divorce? E.g. court, heterosexual couple and as such are afforded the same protection in mediation, arbitration? law as married couples.

By negotiation between the parties or mediation which is readily 4.4 Are same-sex couples permitted to marry or enter other available, the parties may agree a settlement or make an application formal relationships in your jurisdiction? to Court.

Yes, the Marriage and Civil Partnership Amendment Act that took 3 Marital Agreements effect from July 22 2016 gave effect to this.

3.1 Are marital agreements (pre and post marriage) 5 Child Maintenance enforceable? Is the position the same if the agreement is a foreign agreement? 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? Whilst such agreements are not automatically enforceable, the Courts can and will give regard to such. The parties cannot oust the Yes, applications can be made for such as to capital and mainten- Court’s jurisdiction by agreement. ance. The Courts will scrutinise issues such as bargaining power, duress, full financial disclosure, the provision and timing of legal advice and 5.2 How is child maintenance calculated and is it other factors. Children remain of primary focus as to their needs being fully considered and being appropriately provided for. Overall, administered by the court or an agency? the outcome will need to be assessed as being fair.

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There is no formal mechanism for such in the Isle of Man. The Welfare is the statutory consideration which is paramount. The Court has a wide discretion to make financial orders and will Court will in particular have regard to a number of listed factors consider all the available resources and consider any current including the wishes and feelings of the child, where ascertainable, recommendations issued by the Department of Health and Social education needs, the effect of the change of any circumstances, the Care. child’s age and sex or other characteristics, the capability of parents to meet the child’s needs and the available orders of the Court. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? 6.6 Without court orders, what can parents do unilaterally? For example, can a child seek maintenance during university? For example, can they take a child abroad?

Usually until the child reaches 18 or concludes secondary education Unless the parents with parental responsibility agree it, a parent with but may be longer and generally be referable to a first degree. a Residence Order cannot take a child away for a period of in excess of one month. 5.4 Can capital or property orders be made to or for the benefit of a child? 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? Yes, it is possible, so as to provide in particular housing for a child and for the period when the child is a dependant. There is no prescribed division of time, but it is expected that a child shall spend time with both parents. 5.5 Can a child or adult make a financial claim directly against their parents? 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation Potentially, yes, in limited circumstances where a child is over 16 and or divorce? in education full time. Where both parents have parental responsibility, yes this is the case. 6 Children – Parental Responsibility and Custody 6.9 Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 6.1 Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried? Often, a Court Welfare Report is requested and provided to the Court. The Court/judge can see a child but this rarely happens. From November 2013, where an unmarried birth father is named on a birth certificate, he is vested with parental responsibility. Similarly, the birth parents can enter an agreement to give effect to 6.10 Is there separate representation for children in your parental responsibility or a Court can order it. Married parents jurisdiction and, if so, who would represent them, e.g. a always have parental responsibility and this remains following any lawyer? divorce. Yes, this can happen, but rarely so in private law proceedings. 6.2 At what age are children considered adults by the court? 6.11 Do any other adults have a say in relation to the Children are adults by the Courts from the age of 18. arrangements for the children? E.g. step-parents or

grandparents or siblings. What methods of dispute resolution 6.3 What is the duration of children orders (up to the age of are available to resolve disputes relating to children? 16 or 18 or otherwise)? Other relevant adults, such as grandparents, can be spoken to by the Usually until the age of 16 but they can last until the child is 18 years Court Welfare Officer as to their views, but the recommendations of age. are those of the Welfare Officer ultimately. The welfare office will attempt to see if an agreement can be reached or at a separate medi- 6.4 What orders can the court make in relation to children? ation. Does the court automatically make orders in relation to child arrangements in the event of divorce? 7 Children – International Aspects

The Court can make Residence or Shared Residence Orders, Contact 7.1 Can the custodial parent move to another state/country Orders, make specific directions/orders for, say, schooling or change without the other parent’s consent? of name, or make Orders to seek to prevent certain steps happening, i.e. prohibiting travel. If both parents have parental responsibility for the children, then one cannot make a unilateral decision to relocate with the children 6.5 What factors does the court consider when making to another jurisdiction without the other parent’s express consent. orders in relation to children? If it is suspected that the other parent is going to move with the children then it is important that an application is made to the

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Courts for an emergency prohibited steps application, often on a 7.5 In practice, how rare is it for the custodial parent to be without-notice basis. allowed to relocate internationally/interstate? Such Orders are then served upon various people, including the police, the airport, the sea terminal and the passport offices here in the Isle of Man, and also in the UK. This is not particularly rare and is ordered in appropriate circum- If the other parent then attempts to remove the children, then the stances. aforementioned parties will be able to easily identify the children and prevent them from being taken away. 7.6 How does your jurisdiction deal with abduction cases? If the other parent has already taken the children to another For example, is your jurisdiction a party to the Hague jurisdiction with this intending to be permanent, then an application Convention? for the child to be returned pursuant to the Hague Convention, to which the Isle of Man is a party, will be made. The Isle of Man can apply the Hague Convention on the civil aspects of International Child Abduction. 7.2 Can the custodial parent move to another part of the

state/country without the other parent’s consent? 8 Overview

The Isle of Man is not a very big jurisdiction in comparison to the UK, so a parent is not required to obtain the consent of the other 8.1 In your view, what are the significant developments in parent before moving house. However, if the moving parent intends family law in your jurisdiction in the last two years? to change the children’s school or doctors, etc. because of the house move, then the permission of both parents who have parental A significant development in the last two years has been the legal- responsibility is required. isation of same-sex marriage.

7.3 If the court is making a decision on relocation of a child 8.2 What are some of the areas of family law which you think abroad, what factors are taken into account? should be looked into in your jurisdiction?

The primary factors relate to contact, both direct and indirect The following areas should be looked into: contact with the “to be absent” parent in light of all of the past and ■ No-fault divorce. envisaged circumstances and the child’s interests as a whole. ■ Law for cohabiting parties to deal particularly with property.

7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into account?

In the Isle of Man, this is not chiefly in issue, but sometimes schooling or location comes into consideration and will be assessed in the light of all circumstances then prevailing and the interests of the child.

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Louise Byrne, Advocate, LL.B. (Hons), is head of the Family Team at Quinn Legal. Her main practice areas concern advising in respect of divorce, finance and children’s issues, usually in disputes arising out a divorce or relationship breakup. Additionally, Louise conducts litigation in respect of proceedings and adoption applications. Louise was called to the Manx Bar in 1988 and has acted in a number of major civil and other trials throughout the last 30 years. She worked on particularly complex, high-net-worth financial relief divorce cases, and has considerable experi- ence of appearing at all levels, including the Privy Council, where she acted in a number of appeals including MacLeod of which she had conduct at first instance on the Isle of Man to its conclusion at the Privy Council.

Quinn Legal Tel: +44 1624 665522 30 Ridgeway Street Email: [email protected] Douglas URL: www.quinnlegal.im Isle of Man IM1 1EL

Claire Clampton joined the Family Team at Quinn Legal in 2016. Claire was called to the Manx Bar in 2015, having worked within family law since 2012. Claire specialises in handling all areas of family litigation. This includes complex divorce applications surrounding issues of jurisdiction, sensitive contact and residence applications regarding children, and child maintenance matters. Claire also has specific expertise in making emergency court applications which have included domestic violence injunctions and prohibited steps applications to prevent the removal of children from the jurisdiction of the Isle of Man. Separately, Claire has also progressed urgent applications for the return of children to the jurisdiction of the Isle of Man when children have been removed without the consent of all parties with parental responsibility. Claire appears in Court on a weekly basis in relation to all matters of family litigation.

Quinn Legal Tel: +44 1624 665522 30 Ridgeway Street Email: [email protected] Douglas URL: www.quinnlegal.im Isle of Man IM1 1EL

Quinn Legal is one of the leading Isle of Man law firms, with a highly regarded expert Family Team. Headed by Louise Byrne, one of our most experienced advocates with 30 years of experience in the specialised field of family law, the team covers all areas of family work, from pre- and post- nuptial agree- ments, divorce, adoption, contact and residence applications, to child maintenance and cross-jurisdictional issues. We stand out as approachable, proactive and empathetic lawyers who are committed to and care for our clients, priding ourselves on our service. Driven by a set of core values we are clear in our identity and passionate about making a difference for people. www.quinnlegal.im

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Israel Israel

Ruth Dayan Wolfner

Ruth Dayan Law Firm Tali Sivan Lahav

1 Divorce 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances.

1.1 What are the grounds of jurisdiction for divorce As the dissolution of the religious marriage is separated from the proceedings? For example, residence, nationality, domicile, resolution of the related disputes between the parties, such as the etc.? property dispute or matters relating to the children of the parties, the divorce itself can be finalised even before these issues are settled. The jurisdiction to adjudicate in the dissolution of a marriage and the act of divorce of all Israeli citizens is reserved exclusively for a 1.6 Are foreign divorces recognised in your jurisdiction? If religious court, and in the case of Jews, to the Rabbinical Court to so, what are the procedural requirements, if any? which the sole jurisdiction is vested. The Rabbinical Court also has the exclusive jurisdiction to dissolve religious marriage (Get), even in matters concerning Jews around the world who cannot dissolve Foreign divorces are recognised and may be registered at the Ministry their marriage in their place of residence. of the Interior with a translated divorce certificate, but when a The jurisdiction to adjudicate other matters related to the divorce couple are in a Jewish marriage they must divorce at a religious of a Jewish spouse (property matters, child support, alimony, divorce ceremony (Get), whereas civil divorce alone is not enough. custody, etc.) is a parallel jurisdiction of the Family Court and Rabbinical Court. 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 have an Such procedures are not recognised in Israel. uncontested divorce? 1.8 Can divorce proceedings be stayed if there are Since divorce in Israel is religious and not civil, the grounds for the proceedings in another country? divorce are found in Hebrew religious law, and a divorce cannot be arranged because of the unilateral desire of one of the spouses if If divorce proceedings are being held in another country, proceed- the other party does not agree to the divorce. The party requesting ings pertaining to division of property can be suspended until the the divorce must prove cause of the divorce, such as betrayal or proper forum is decided. However, regarding matters of the divorce inappropriate behaviour. itself, the Rabbinical Court has exclusive jurisdiction if the parties are both Jewish, while at the same time this does not prevent the 1.3 In the case of an uncontested divorce, do the parties regulation of civil divorce in the country in which the couple reside need to attend court and is it possible to have a “private” if they do not reside in Israel.

divorce, i.e. without any court involvement? 2 Finances on Divorce It is not possible to arrange a religious divorce without participating in the divorce ceremony (Get) in the Rabbinical Court. It is also 2.1 What financial orders can the court make on divorce? mandatory to appear before the Family Court, which is authorised to approve the financial divorce agreement. Status quo orders.

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 The divorce takes place in the Rabbinical Court in a religious matrimonial regime? ceremony (known as the Get). When the parties have an agreed divorce agreement, the procedure can take about a month. In the absence of consent to divorce, the procedure can last for a long time In practice, a regime of property sharing is applied in Israel, which and, sometimes, even many years. states that all assets acquired during the marriage are considered marital property, regardless of whose name they were registered

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under. Assets received as a gift or inheritance or compensation for According to case law in Israel, the residential home is the highlight bodily injury are considered separate assets and they belong to the of the family property. Upon the divorce, ownership of the spouse in whose name they are registered. Spouses may choose to residential home is usually transferred to one of the parties or sold sign a financial agreement that determines the matrimonial regime to a third party. The special status of the residential home is that will be applicable to them. This agreement must be validated reflected mainly when dealing with a residential home which is an by a judicial instance. external asset, that was acquired by one of the spouses prior to marriage or an asset received as a gift or inherited during the 2.3 How does the court decide what financial orders to marriage. In such instances, the non-owner spouse is required to prove that that there was an express common intention for joint make? What factors are taken into account? ownership of the home and the courts have ruled that when dealing with the residential home, a relatively low burden of proof is The court will issue a financial order only regarding joint assets required. which are in danger of being concealed or transferred without the consent of the other party. 2.10 Is the concept of “trusts” recognised in your

jurisdiction? If so, how? 2.4 Is the position different between capital and maintenance orders? If so, how? Yes, but only in very specific matters. When the parties sign a trust agreement, the issue will be decided in the Family Court according There is a difference between capital orders and maintenance orders. to the Israeli trust law. Maintenance orders will be issued when the intent is to ensure continuation of payment and capital orders will be issued with the 2.11 Can financial claims be made following a foreign intent to prevent any change in existing situation until the division of property. divorce in your jurisdiction? If so, what are the grounds?

2.5 If a couple agrees on financial matters, do they need to Financial claims relating to foreign divorce may be filed only regarding property which is located in Israel. However, when an have a court order and attend court? Israeli couple owns property abroad the Israeli court can rule on the matter. It is obligatory to appear in court in order to give legal validity to any property agreement between spouses. 2.12 What methods of dispute resolution are available to

resolve financial settlement on divorce? E.g. court, 2.6 How long can spousal maintenance orders last and are mediation, arbitration? such orders commonplace?

The available methods for parties wishing to resolve financial A married woman is entitled to receive a wife’s alimony from her settlement are mediation, arbitration and in cases in which the parties husband in an amount that will enable her to maintain the standard are unable to reach an agreement, the default option is court ruling. of living she was accustomed to during the marriage, but only until However, in July 2016, a new law came into force for arranging the time of the divorce. When a woman works and receives an litigation in family conflicts, and the regulations thereof. Under the adequate salary, she is not entitled to maintenance from her husband. above law and regulations thereof, it was determined that prior to initiating any legal proceeding, a party should first apply for conflict 2.7 Is the concept of matrimonial property recognised in resolution in any of the judicial instances – the Family Court or the your jurisdiction? Rabbinical Court in Israel. That is to say, that before initiating any legal proceedings, the parties are subject to a cumulative 60-day period of stay of proceedings, during which they must report to a Yes, please see the answer to question 2.2. meeting at the Social Service Aid Unit, and their willingness to take

part in the dispute resolution mediation process, is assessed. 2.8 Do the courts treat foreign nationals differently on During this period, the only motions a party is permitted to file divorce, if so, what are the rules on applicable law? Can the to the court are for urgent judicial remedies. Once the 60-day delay court make orders applying foreign law rather than the law of of proceedings period is over, the party who initiated the conflict the jurisdiction? resolution request has the first right of choice between legal instances and is required to submit his/her claim within 15 days. As in Israel the Family Court and Rabbinical Court have parallel The Rabbinical Court has the sole jurisdiction to deal with the jurisdiction regarding all matters ancillary to divorce, the right of religious dissolution of marriage of Jews even when they are not jurisdiction choice is fundamental. Israeli citizens. Regarding property arrangements which are governed by the law of the place of residence of the spouses at the 3 Marital Agreements time of marriage, it was further determined that the parties are entitled to change this by agreement and apply the laws of the State of Israel. Situations governed by foreign law do not necessarily 3.1 Are marital agreements (pre and post marriage) negate the jurisdiction of the courts in Israel and the court will seek enforceable? Is the position the same if the agreement is a the advice of a foreign law expert for the purpose of deciding accordingly. foreign agreement?

2.9 How is the matrimonial home treated on divorce? Financial agreements are binding subject to their approval. Thus, a financial agreement made by a married couple should be in writing and must be ratified by a judicial instance which will give it the

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validity of a binding judgment, after the court has examined the Common law spouses may request the same financial court orders understanding and wishes of the couple. A financial agreement as married couples. drafted by the parties on the eve of their wedding may also be ratified by a notary. Cancellation of financial agreements is possible 4.3 Is there a formal partnership status for cohabitants (for only on the rare occasions in which a fundamental flaw can be example, civil partnerships, PACS)? proven, for example: an agreement which was signed under duress or formed under conditions involving deceit or misrepresentation or alternatively, in even more infrequent cases due to a significant Common law partnerships are recognised by legislation and by case breach of the agreement. When the agreement was signed abroad law in Israel. and the parties were married in their country of origin, according to the Financial Relations Law in Israel, the law of that foreign country 4.4 Are same-sex couples permitted to marry or enter other applies to them, and the agreement will be examined in accordance formal relationships in your jurisdiction? with that foreign law.

As religious courts in Israel have exclusive jurisdiction in adjudication 3.2 What are the procedural requirements for a marital of marriage and none of the religious laws permit same-sex agreement to be enforceable on divorce? marriages, same-sex partners cannot marry in Israel, but they can register as married if they are married outside Israel, in a jurisdiction A claim for the enforcement of the agreement must be filed in the where such marriages are legal. Same-sex partners who are not Family Court. married are recognised as common-law spouses.

3.3 Can marital agreements cover a spouse’s financial 5 Child Maintenance claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property 5.1 What financial claims are available to parents on behalf regime? of children within or outside of marriage?

The issue of maintenance can also be arranged within the Parents may submit a claim for child support and request temporary framework of the financial agreement. child support, until a final decision on the matter has been given.

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 cohabitants, which do not have children, have financial claims if the couple separate? What are the grounds For the purpose of calculating child support, the court examines the time of each parent’s stay with the children, as well as the disposable to make a financial claim? income of each parent, while assessing his/her overall economic ability and all the economic resources available to the parent, Cohabiting couples or common law spouses are defined in Israel, as including assets, savings and earning potential and the actual needs a couple who manage a common household, under one roof and of the children. Relevant expenses may include: chose to combine their lives and tie their fate together, but chose not ■ Stay dependent expenses, such as food, transportation and to marry for various reasons. There is no specific time period, and routine family expenses, and other expenses incurred by each the test is a substantive test rather than quantitative – is the nature parent during the children’s stay with him/her. of the relationship indicative of a deep relationship that meets the ■ Non-stay dependent expenses, such as clothing, haircuts, definition? The joint property doctrine governs the distribution of textbooks and more. assets in common law spouses and not the Spouses Property ■ Housing expenses, such as expenses incurred by each of the Relations Law, which applies only to married couples. parents in respect of the children’s homes maintenance. Unlike married couples, common law spouses will be required to ■ Irregular expenses, such as educational expenses such as kinder- provide proof that there was an express common intention for joint garten, private lessons, summer camps and medical expenses ownership of property throughout the relationship. such as dental care, diagnoses, chronic medications, private In certain cases, in which there is an economic dependence physicians, etc. between the spouses, the economically weaker spouse will be entitled The irregular expenses, as well as the non-stay dependent to restorative maintenance which is intended to facilitate a gradual expenses, will be divided between the parties in proportion to the separation and end the economic dependence between the spouses. income ratio between them. Restorative maintenance is awarded for a limited period and depends The stay dependent expenses will be examined by the court, taking on various factors, such as earning capacity of the financially into account two parameters: the first is the ratio of income between dependent party, age, financial capacity of the other party and the the parents; and the second is the ratio of the children’s time with scope of assets. each parent. In addition, common law spouses are entitled to inherit from each other as spouses and receive a survivors’ pension after the death of 5.3 For how long is a parent required to pay child one of the parties. In other words, common-law spouses inherit half of the property of the deceased spouse even if there was a complete maintenance or provide financial support for their children? separation of property and even if there was a financial agreement For example, can a child seek maintenance during university? ordering separation of property. In principle, child support is paid up to the age of 18. However, the 4.2 What financial orders can a cohabitant obtain? Family Court has the right to order payment of child support even after the age of 18 until the end of high school or compulsory

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service in the IDF. The amount of child support after the age of 18 With regard to issues relating to children, the court will first and is usually 1/3 of the child support paid before the age of 18. foremost consider the best interests of the children themselves, both with respect to visitation and custody, regarding medical or 5.4 Can capital or property orders be made to or for the emotional care and relocation. If necessary, the court will appoint experts to assist in the process of determining the children’s best benefit of a child? interest.

Children have no right to their parents’ property as long as the 6.6 Without court orders, what can parents do unilaterally? parents are alive. For example, can they take a child abroad? 5.5 Can a child or adult make a financial claim directly Only if there is consent of both parents; without consent, a court against their parents? order is required.

A child can submit a direct financial claim against their parent only 6.7 Is there a presumption of an equal division of time in matters pertaining to child support. between separating or divorcing parents? 6 Children – Parental Responsibility and Custody There is no presumption of equal distribution of time and distribution of time is determined in accordance with the child’s best interests. In most cases, the best interest of the child is the equal 6.1 Explain what rights of custody both parents have in your distribution of time between the parents. jurisdiction whether (a) married, or (b) unmarried? 6.8 Are unmarried parents treated in the same way as Both parents are the natural guardians of their children, regardless married parents when the court makes orders on separation of who has custody. Both parents have equal rights in decisions or divorce? regarding fundamental matters pertaining to their children, such as health and education matters. The custody issue is examined by the The marital status of the parents is of no significance to the court’s courts according to what is deemed to be in the child’s best interest decision regarding custody and visitation arrangements. (regardless of whether the parents are married or not). If the parents are unable to reach an agreement regarding the custody of 6.9 Is a welfare report prepared by an independent the children, the courts will decide. The court may appoint various experts including a welfare officer (employed by the social services professional or is the decision taken by the Judge alone? If agency) who will prepare their report and recommend which parent so, does the child meet the Judge? is to be the primary custodian of the children and advise regarding rights of visitation with each parent. The decision is based on the social services agency report.

6.2 At what age are children considered adults by the court? 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a The age of maturity in Israel is 18. lawyer?

6.3 What is the duration of children orders (up to the age of In most cases the children are represented by their parents; however, 16 or 18 or otherwise)? in certain high-conflict proceedings, the court may decide to appoint an attorney to represent the children’s independent interests. Until the child reaches the age of maturity – 18. 6.11 Do any other adults have a say in relation to the 6.4 What orders can the court make in relation to children? arrangements for the children? E.g. step-parents or Does the court automatically make orders in relation to child grandparents or siblings. What methods of dispute resolution arrangements in the event of divorce? are available to resolve disputes relating to children?

The court has extensive authority to issue orders pertaining to the Usually, they do not. If the child has living parents, only the parents children and their welfare. This starts with the determination of can determine the visitation rights. Only in a case one of the parents their custody, visitation arrangements and any other matter relating passed away, the grandparents can have visitation rights. The parents to their physical and mental wellbeing and considers the Law of can choose to go through mediation. In case one refuses to Legal Capacity and Guardianship. An appeal from one of the negotiate, the Family Court has jurisdiction to make decisions parents is sufficient to grant the court authority in these matters. relating to children. If the parties agree on matters of child custody and visitation, the court will not intervene. However, in the absence of judicial validity of these agreements, they are not enforceable 7 Children – International Aspects

6.5 What factors does the court consider when making 7.1 Can the custodial parent move to another state/country orders in relation to children? without the other parent’s consent?

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The issue of determining a minor’s place of residence is a matter of 7.4 If the court is making a decision on a child moving to a guardianship, which is shared by both parents even after the divorce. different part of the state/country, what factors are taken into Therefore, if one of the parents wishes to relocate the minor to another country, he/she must obtain the consent of the other account? parent. If the parent who wishes to immigrate with the minor has not received the consent of the other parent, he/she must petition In cases of relocation within the country, the court examines the court to allow him/her to relocate the minor. A parent who whether the change in residence is necessary and how it affects the relocates a minor to another country without obtaining the consent child’s relationship with the other parent. of the other parent or receiving permission from the court, is considered to be an abductive parent according to the Hague 7.5 In practice, how rare is it for the custodial parent to be Convention. allowed to relocate internationally/interstate?

7.2 Can the custodial parent move to another part of the It depends on the specific circumstances of each matter. state/country without the other parent’s consent? 7.6 How does your jurisdiction deal with abduction cases? The granting of custody to one of the parents does not grant For example, is your jurisdiction a party to the Hague him/her the automatic right to relocate the minor’s residence, as by doing so he/she is violating the right of the other parent to maintain Convention? visitation with the minor. In the absence of agreement to the relocation of the minor, the court must decide on this issue, Israel has ratified the Hague Convention on the Civil Aspects of according to the best interests of the minor. International Child Abduction 1980, by legislating the Hague Convention (Return of Kidnapped Children) Law, 1991. 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 8 Overview

Some of the considerations examined by the court are: 8.1 In your view, what are the significant developments in 1. The suitability of each of the parents to serve as custodians, family law in your jurisdiction in the last two years? which of the parents will best provide for the child’s needs. 2. The importance of the reason for the relocation application. Since it is very important for the child to maintain contact with We would like to mention a significant development in family law both parents, the court will examine whether the reason for the that relates to how the courts calculate the amount of child support relocation is legitimate or not. Less legitimate reasons include a payments under a divorce. Until 2017, it was the father’s absolute vague desire to change residence and especially a desire to obligation to pay at least a minimum sum of child support to the remove the child from the other parent. mother, regardless of his circumstances. In 2017, the Supreme 3. The court examines whether it is possible to solve the need of Court eliminated the father’s obligation to pay child support and the parent without relocating the minor’s place of residence. determined that the amount be calculated in accordance with the 4. The ability to ensure contact with the other parent. In many income of both parties. judgments, emphasis is placed on maintaining contact with the other parent, in view of the importance of both parents to the 8.2 What are some of the areas of family law which you think normal development of the child. should be looked into in your jurisdiction? However, each case is examined for its own circumstances and on its own merits. We think that the parallel jurisdiction between the Rabbinical Court

and the Family Court should be cancelled. Once only the Family Court has sole jurisdiction, many of the divorce cases will simplify.

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Ruth Dayan Wolfner, who holds an LL.B. degree cum laude from the Tel Aviv University Faculty of Law, as well as a B.A. degree in Criminology, Sociology and Anthropology from Bar Ilan University, has accumulated extensive experience by representing hundreds of clients in divorce cases and by settling other family disputes in the Family Affairs Courts, Rabbinical Courts and other courts in Israel. Adv. Ruth Dayan Wolfner has taken many diploma training courses in the field of family law in Israel, as well as a special advanced training course in New York in the subject of Collaborative Mediation. Ruth Dayan Wolfner is the co-author of the book “The Israeli Guide to Divorce”, which was published in 2003. She initiated and founded the Get Up website, one of the leading websites in its field, as well as the Lareshet website, which deals in the field of inheritance law. In 2014, Ruth Dayan launched a divorce application she developed for smartphones, the first of its kind in Israel Professional Vision.

Ruth Dayan Law Firm Tel: +972 3 670 8888 10th Floor, North Tower Email: [email protected] 28 Ha’arbaa St. URL: www.ruthdayan.co.il Tel Aviv Israel

Tali Sivan Lahav holds an LL.B. and specialised in the honour of Judge Abraham Schinfeld, who served as president of the juvenile court. She has been a member of the Bar Association since 2005 and joined the firm in 2016. Tali Sivan Lahav combines the knowledge gained in the field of civil ligation and corporate disputes as she leverages this knowledge with her professional experience in family law to achieve optimal results for her clients in our office.

Ruth Dayan Law Firm Tel: +972 3 670 8888 10th Floor, North Tower Email: [email protected] 28 Ha’arbaa St. URL: www.ruthdayan.co.il Tel Aviv Israel

The Ruth Dayan Law Firm is one of Israel’s leading law firms specialising in Court and at the High Rabbinical Tribunal – has earned it a reputation, due to family law. The firm is active in the field of divorce and in other affiliated fields successful representation which has led to extraordinary results in the most of family law, wills and inheritances, as well as mediation. The firm was complex and sensitive proceedings. The firm attains these achievements due established by Ruth Dayan Wolfner in 1998 and has grown rapidly due to to groundbreaking, thorough and creative litigation over two decades of uncompromising professionalism, comprehensive understanding of the representing clients in all instances, mainly due to strategic thinking which complex aspects of all areas of family law, a personal approach and effective takes into account the broad and long-term needs of the client. results, namely attaining the client’s goals. www.ruthdayan.co.il The firm’s legal team consists of attorneys who are experts in divorce cases and have vast experience in the field of personal law. The firm’s legal work is of the highest quality, constantly aspiring to maintain a cutting edge, using all available technological means. Our fields of expertise are consultation and building legal strategies, as well as litigation. Family law is a complex field. Due to parallel authority between judicial instances and case-law dynamics in the field, an accurate legal strategy can alter the entire divorce trajectory. The decision on what strategy to use must be tailored to the unique circumstances of the case, so as to obtain the most significant advantage. The firm’s representation in Family Court, in Rabbinical Tribunals, in appellate instances – District Court, Supreme

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Italy Italy

Ceschini & Restignoli Roberta Ceschini

1 Divorce Uncontested separation/divorce can be obtained through two different procedures: ■ Judicial procedure, before the Court: parties must attend a 1.1 What are the grounds of jurisdiction for divorce hearing; however, one of them can be substituted in Court through a special power of attorney. proceedings? For example, residence, nationality, domicile, ■ Private procedure (so-called “negoziazione assistita”): an agreement etc.? of separation/divorce can be reached before lawyers and then ratified by the Court without need for any hearings. EU Regulations apply to determine the legal grounds for separ- ation/divorce. According to such regulations “habitual residence” 1.4 What is the procedure and timescale for a divorce? is the main grounds to determine jurisdiction. More specifically the Italian Courts will retain jurisdiction when: ■ the spouses are habitually resident in Italy or the spouses were The procedure and timescale is the same for separation and divorce: last habitually resident, insofar as one of them still resides there, Uncontested separation/divorce: or the respondent is habitually resident; ■ The parties submit to the Court a proposed separation/divorce ■ in the event of a joint application, either of the spouses is arrangement. habitually resident; ■ A hearing is scheduled and the Judge, if the terms and ■ the applicant is habitually resident if he/she resided there for at conditions agreed are appropriate, ratifies the proposed least a year immediately before the application was made; or arrangement. ■ the applicant is habitually resident if he/she resided there for at ■ Such procedures normally last approximately six months. least six months immediately before the application was made Judicial separation/divorce: and is either a national of the Member State in question or, in ■ One party summons the other before the Court. the case of the United Kingdom and Ireland, has his/her ■ At the first hearing interim orders are issued. “domicile” there. ■ The proceeding is then continued on a number of hearings The Italian Courts will also retain jurisdiction if both spouses are through a discovery phase, where evidence (witnesses, psycho- of Italian nationality. logical and financial evaluations, etc.) is gathered. In case none of the above criteria applies, jurisdiction is deter- ■ A final decision is issued, that can confirm or revise the interim mined by Italian rules of international law and, therefore, Italian orders. Courts will retain jurisdiction if one of the parties is of Italian Such procedures can last two to three years depending on the nationality or if the marriage has been celebrated in Italy. complexity of the discovery phase.

1.5 Can a divorce be finalised without resolving other 1.2 What are the grounds for a divorce? For example, is associated matters? For example, children and finances. there a required period of separation, can the parties have an uncontested divorce? Legal separation must include also children and financial matters, if the Court has jurisdiction on them. Following separation, the parties The only ground for divorce is having obtained a legal separation may finalise a mere dissolution of marriage, without changing the first. Separation can be obtained without need for specific reasons; separation terms as far as children and financial matters are it is sufficient that one of the parties confirms irretrievable break- concerned, if they so wish. down of the marriage. If separation has been obtained by mutual consent, divorce procedure can be started after six months. If separ- ation has been obtained after a judicial proceeding, divorce 1.6 Are foreign divorces recognised in your jurisdiction? If procedure can be started after 12 months. The divorce proceeding so, what are the procedural requirements, if any? can also be by mutual consent or judicial. Foreign divorces can be recognised in Italy by starting proceedings 1.3 In the case of an uncontested divorce, do the parties before the Court of Appeals, which will verify that the foreign need to attend court and is it possible to have a “private” divorce judgment meets the following requirements: ■ the judgment to be enforced is final and has been served to the divorce, i.e. without any court involvement? other party;

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■ the foreign Court had jurisdiction to issue the divorce judgment, On divorce the Court can make the following financial orders: pursuant to Italian rules; ■ Child and spousal support. No lump sum can be ordered in ■ the defendant has been properly summoned in the foreign both cases. proceedings and given an appropriate time to file a defence; ■ Assignment of marital house to custodian parent. In case there ■ both parties have participated in the foreign proceedings or have are no children, the marital house stays with the owner. been regularly declared in default; Note that division of marital assets is not treated in divorce ■ there is no contrary, final Italian judgment; proceedings and must be dealt with in different proceedings. ■ no proceeding is pending in Italy on the same object and between the same parties, that has been started prior to the 2.2 Do matrimonial regimes exist and do they need to be foreign judgment; and addressed by the court on divorce? Is there a default ■ the foreign judgment to be enforced must not be contrary to Italian public order. matrimonial regime? European judgments are immediately valid in Italy. Only in case they are contested, the Court of Appeals must verify that they meet There are two matrimonial regimes: the requirements to be registered pursuant to EU Regulations. ■ Separation of assets: each spouse maintains his/her own assets, even if acquired during the marriage, with no exceptions. 1.7 Does your jurisdiction allow separation or nullity ■ Community of assets: all assets acquired during the marriage (except those received by inheritance and donation) are owned proceedings? 50/50 by the spouses. ■ Community of assets is the default regime. Note that division Yes, there are both. of matrimonial assets is not addressed in the divorce proceeding Separation is a necessary step before divorce, see question 1.4 and must be addressed in a separate and specific proceeding, above. only after separation has taken pace. Nullity proceedings can be started in the following cases: ■ Lack of one of the legal requirements to get married, such as: 2.3 How does the court decide what financial orders to being legally capable; being unmarried; the spouses must not be relatives of one another; the spouses must have not been make? What factors are taken into account? charged with murder of the other spouse’s previous husband/wife; and more than 300 days must have passed from There are no specific and exact formulas to calculate financial orders. annulment of divorce from a previous marriage. Separation financial orders: the Court takes into account the ■ In case one of the spouses has been induced to give consent to income and assets of the parties, their earning capacities and their the marriage under violence or threat, provided that the spouses reasonable living expenses. The purpose is that the financially have not cohabited for more than one year after the violence or weaker spouse can maintain approximately the same standard of threat ceased. living enjoyed during the marriage. ■ In case one of the spouses has been induced to give consent to Divorce financial orders: the financially weaker spouse can obtain the marriage because of a mistake regarding the identity of the support only if he/she cannot provide an income for objective other spouse or his/her main qualities. It must be a mistake so reasons (such as being sick or too old to work). The Court must take serious that, if known, the spouse would have not consented to into account the contribution given by each spouse during the the marriage and it must refer to: (i) a psychical illness or sexual marriage and ownership of real estate properties. deviance that does not consent normal course of marital life; or (ii) the other spouse being charged with either a sentence of 2.4 Is the position different between capital and more than five years’ imprisonment, or with prostitution, or maintenance orders? If so, how? being declared a habitual criminal. The above is applicable provided that the spouses have not cohabited for more than one year after the mistake has been discovered. No capital orders can be issued in separation/divorce proceedings, ■ The wife was pregnant by another man at the time of the unless by agreement. marriage. ■ The spouses had an agreement to simulate the marriage, 2.5 If a couple agrees on financial matters, do they need to provided that they did not cohabit and no more than one year have a court order and attend court? has passed after the marriage was celebrated.

Yes, in order for the financial orders to be enforceable. In case of 1.8 Can divorce proceedings be stayed if there are agreement, however, the procedure of “negoziazione assistita” can be proceedings in another country? followed, so that the parties do not need to go to Court (see question 1.3). In case there are divorce proceedings in another European country that have been started first, the Italian Judge must stay the Italian 2.6 How long can spousal maintenance orders last and are proceeding and wait for the decision of the other Judge, pursuant to such orders commonplace? EU Regulation. In case the other divorce proceeding has been started in a non- European country, the Italian Judge may stay the Italian proceeding Financial orders are commonplace. There is no specific duration, if he believes it appropriate. they can last until there are grounds for them.

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

2.1 What financial orders can the court make on divorce?

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Yes it is. After separation, if the regime of common property provisions of separation/divorce is considered against public order. applies, the matrimonial property must be divided 50/50. In case of If the marital agreement is, however, entered into pursuant to a disagreement between the spouses, a separate case for division of foreign law, cases of law have stated that the it may be taken into assets must be started. consideration, as the concept of international public order is of a broader nature. 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Can the 3.2 What are the procedural requirements for a marital court make orders applying foreign law rather than the law of agreement to be enforceable on divorce? the jurisdiction? Marital agreements must be entered in writing either before a Notary Foreign nationals are not treated differently. Applicable law is (before or after marriage) or during the wedding ceremony; among decided according to EU Regulations and International Conventions the papers to be signed there is also a specific form for election of applying, whereby the concept of habitual residence (and not citizen- marital regime and choice of law. During the marriage it is always ship) is the main distinction criteria. The Italian Court can make possible to change the marital agreement; however, it must be again orders applying a foreign law. done in writing with a Notary Deed.

3.3 Can marital agreements cover a spouse’s financial 2.9 How is the matrimonial home treated on divorce? claims on divorce, e.g. for maintenance or compensation, or The matrimonial home, regardless of ownership, is to be assigned are they limited to the election of the matrimonial property to the spouse having custody of minor children, until they are living regime? in the home. The assignment order is enforceable to third parties as well, provided that it is registered at the Land Registry. Assignment Marital agreements are limited to election of matrimonial property of the matrimonial home is taken into account and valued when regime and choice of law. determining both spousal and child support. In case there are no minor children, the matrimonial home stays 4 Cohabitation and the Unmarried Family with the owner.

2.10 Is the concept of “trusts” recognised in your 4.1 Do cohabitants, which do not have children, have jurisdiction? If so, how? financial claims if the couple separate? What are the grounds to make a financial claim? The concept of trust has been recognised in the Italian jurisdiction since 1992, when Italy ratified the 1985 Hague Convention. Trust Cohabitants who do not have children do not have any financial is, however, not specifically regulated by Italian law with the result claims to each other, unless they make an agreement to this purpose of a big uncertainty in its enforcement. It is, for example, highly (see question 4.3). debatable if Italian citizens can incorporate a trust in Italy with Italian assets. 4.2 What financial orders can a cohabitant obtain?

2.11 Can financial claims be made following a foreign None, see question 4.1. divorce in your jurisdiction? If so, what are the grounds? 4.3 Is there a formal partnership status for cohabitants (for Divorce terms, including financial arrangements, even if contained example, civil partnerships, PACS)? in a foreign divorce, can always be revised, subject to jurisdiction and provided that there are new circumstances. Cohabitants can formalise their civil partnership status before the Civil Register (“Anagrafe”) for the purposes of making an enforce- 2.12 What methods of dispute resolution are available to able financial agreement. resolve financial settlement on divorce? E.g. court, mediation, arbitration? 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? Mediation is available; however, only if the parties agree to it. It is also possible to find an agreement through a negotiation between Same-sex couples can enter into a formal relationship (“Unione two lawyers (so-called “negoziazione assistita”) provided that the agree- Civile”) that will give them the same rights and obligations as married ment is then ratified by the Court. people, with the exception of right to adopt.

3 Marital Agreements 5 Child Maintenance

3.1 Are marital agreements (pre and post marriage) 5.1 What financial claims are available to parents on behalf enforceable? Is the position the same if the agreement is a of children within or outside of marriage? foreign agreement? The same financial claims available are support and assignment of Under Italian law, marital agreements can only cover election of the family home. marital regime and choice of law. Pre-determining any other

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5.2 How is child maintenance calculated and is it Custody and visits orders are enforceable until children are 18; however, it is standard practice of Judges that such orders are not administered by the court or an agency? enforced on children over the age of 14–15 against their wish. Support must be paid by parents until children have concluded their Child maintenance is administered by the Court only. Criteria for education and are financially independent. calculations are as follows: ■ income of both parents; 6.4 What orders can the court make in relation to children? ■ children’s specific needs; ■ standard of living during cohabitation with both parents; Does the court automatically make orders in relation to child ■ time spent with each parent; and arrangements in the event of divorce? ■ the care effectively provided by each parent. Upon separation/divorce the Court automatically makes children 5.3 For how long is a parent required to pay child orders regulating support, assignment of family house, custody and maintenance or provide financial support for their children? visits.

For example, can a child seek maintenance during university? 6.5 What factors does the court consider when making Children are entitled to be supported until they have completed their orders in relation to children? education, including university, and until they find a job that makes them financially independent. The Court considers the best interests of the children, which includes concrete possibility to maintain a close relationship with 5.4 Can capital or property orders be made to or for the both parents and other members of both families. With this respect, benefit of a child? the Court will take into account the ability of each parent to acknowledge and respect the other parent and the opinion of the child (see question 6.2). No capital or property orders can be made to or for the benefit of a child. 6.6 Without court orders, what can parents do unilaterally?

For example, can they take a child abroad? 5.5 Can a child or adult make a financial claim directly against their parents? In the absence of Court orders, parents share parental responsibility of children. As a result, any important decision, such as relocation, Only adults (of 18 years old and more) can make financial claims must be shared or authorised by the Court. directly against their parents.

6.7 Is there a presumption of an equal division of time 6 Children – Parental Responsibility and between separating or divorcing parents? Custody No, there is not. The Court normally provides for one parent having 6.1 Explain what rights of custody both parents have in your primary residence of minor children and the other parent having a jurisdiction whether (a) married, or (b) unmarried? proper schedule of visitation. So-called “alternate custody” providing for an equal division of time between separating/ divorcing parents is rarely applied and only in particular circum- Married and unmarried parents have the same rights of custody stances whereby the children are not very young, the parents live very under Italian law. The default regime is shared custody whereby close to each other and are proved to have a very civil relationship. children reside with one parent and have a schedule of visits with the other: each parent has full custody rights in his/her time with the children. 6.8 Are unmarried parents treated in the same way as Only in case of major problems affecting parental capability of married parents when the court makes orders on separation one parent, exclusive custody can be granted to the other parent, or divorce? who will be entitled to make all ordinary and extraordinary decisions about children. The other parent has a right of supervision and can Yes, they are, as far as orders pertaining to children are concerned. apply to the Court in case of disagreement on any decisions.

6.9 Is a welfare report prepared by an independent 6.2 At what age are children considered adults by the court? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? Children become adult at the age of 18. Children can personally express their opinion to the Judge at the age of 12 or even younger if it is ascertained that they have reached a certain degree of A welfare report is normally prepared by social services or by an maturity. Normally, children younger than 10 years old are listened independent psychologist appointed by the Court. The child can by a Court-appointed psychologist who will then refer to the Judge. personally meet and be interviewed by the Judge when he/she is at least 10–12 (see question 6.2).

6.3 What is the duration of children orders (up to the age of 6.10 Is there separate representation for children in your 16 or 18 or otherwise)? jurisdiction and, if so, who would represent them, e.g. a lawyer?

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Italian law does not provide for mandatory separate representation 7.4 If the court is making a decision on a child moving to a for children. In some cases, if the Judge deems it appropriate and different part of the state/country, what factors are taken into there is a conflict of interest with both parents, the Judge can appoint a representative of the minor (so-called “Curatore”) who is account? normally a lawyer specialising in family law. Some of the procedures in which a Curatore is normally appointed are: adoption proceedings; The same factors as mentioned in question 7.3 above will be disclaimer of paternity; stay; or revocation of parental authority. considered. Clearly, the issue of geographical distance will be less important, as Italy is a small country. 6.11 Do any other adults have a say in relation to the arrangements for the children? E.g. step-parents or 7.5 In practice, how rare is it for the custodial parent to be grandparents or siblings. What methods of dispute resolution allowed to relocate internationally/interstate? are available to resolve disputes relating to children? It is not rare; there are many cases in which relocation orders have been issued. It very much depends on a case-by-case basis. The only other adults who can judicially apply to have their own visits with children are grandparents. The only method of dispute resolution for grandparents is obtaining a Court order providing for 7.6 How does your jurisdiction deal with abduction cases? their own visitation schedule. For example, is your jurisdiction a party to the Hague Convention? 7 Children – International Aspects Italy has ratified the Hague Convention on Child Abduction in 1994 7.1 Can the custodial parent move to another state/country and applies it very strictly through its Juvenile Courts. In addition to that, in 2009 a new crime of “international child abduction” has without the other parent’s consent? been added to the criminal code, providing for imprisonment of up to four years and stay of parental authority for the abductor. No. Relocation is always considered a decision to be shared, or auth- orised by the Court, unless the custodian parent has exclusive 8 Overview custody with specific mention of possibility to relocate to another country. 8.1 In your view, what are the significant developments in 7.2 Can the custodial parent move to another part of the family law in your jurisdiction in the last two years? state/country without the other parent’s consent? There have been no significant developments in the last two years. See question 7.1. The most recent ones are: ■ 2006: shared custody of children becomes the default regime; ■ 2013: full equality between children born out of marriage and 7.3 If the court is making a decision on relocation of a child children born within marriage; abroad, what factors are taken into account? ■ 2015: the possibility to obtain divorce within six months to one year from separation (instead of three years); and The main factor taken into account when issuing a relocation order ■ 2016: the possibility to enter cohabitation agreements and same- is the best interest of the children. To this purpose, the Court makes sex civil unions. a balance of the following criteria: ■ environment offered by new destination (extended family, 8.2 What are some of the areas of family law which you think housing, school, job opportunities for the custodian parent, etc.); should be looked into in your jurisdiction? ■ possibility to maintain a close and frequent relationship with the left parent (distance of new location, travel connections, ability of the left parent to travel, cooperation offered by the custodian Such areas include: parent, etc.); and ■ the creation of a Family Court; ■ psychological conditions of children (will they easily settle in the ■ improving legislation on shared custody; new environment? Can they easily settle with a new school and ■ improving legislation on enforcing payment of child support; language? Can they cope with being separated from the left ■ improving minor’s and women’s protection from domestic parent?) abuse; and ■ adoption also being made available to singles and unmarried people.

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Roberta Ceschini was born in 1965 and was admitted/has been practising in Court since 1990. She was also admitted before the Supreme Court. Her main areas of practice are: International divorces; Recognition of foreign divorces in Italy; International Child Abduction; Proceedings regarding Minors; and Pre-Nuptial Agreements. She has been appointed as an expert witness before the: Superior Court of the State of New York; Superior Court of the State of Washington; Circuit Court of Cook County, Illinois; United States District Court of Texas; District Court of Hong Kong; and UK High Court of Justice, Family Division. She is a member of the IBA (International Bar Association), IAFL (International Academy of Family Lawyers), Reunite (National Council for Abducted Children) and AIAF (Italian Association of Family Lawyers). She speaks Italian, English, French and Spanish.

Ceschini & Restignoli Tel: +39 06 321 6571 Viale Giuseppe Mazzini 4 Email: [email protected] 00195 Rome URL: www.crlegal.it Italy

Ceschini & Restignoli, is a Law Firm created to offer highly qualified and Ceschini & Restignoli guarantees you a highly qualified professional team, and specialised assistance in family law and minors, separation and divorce, a direct and constant contact with the senior partners and founders Roberta inheritance and gift tax, and related criminal law. Ceschini and Armando Restignoli, who personally follow with you your Our approach to teamwork and our highly qualified legal panel enable us to disputes until the achievement of any legal objectives you wish to reach. help our customers address their specific needs with creative problem solving www.crlegal.it and an effective, rapid resolution of their problems. We possess the experi- ence and knowledge necessary to prepare and deal with any legal challenge, as well as the skills to successfully obtain a favourable decision. The hardships accompanying the Court proceedings, both inside and outside the courtroom, can become overwhelming, and finding the best possible legal defence can be difficult. However, the choice of a trusted attorney is one of the most important decisions to make, as an experienced lawyer will be able to adequately protect your rights.

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Japan Japan

Haraguchi International Law Office Kaoru Haraguchi

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, Under Japanese law, a husband and wife can get divorced by mutual etc.? agreement in accordance with Article 763 of the Civil Code of Japan. The elements of the judgment divorce under Article 770(1) are as Under Article 3-2 of the Personal Status Litigation Law follows: implemented on April 1, 2019, the family court of Japan has the (i) a spouse has committed an unchaste act; jurisdiction over international divorce if: (ii) a spouse was abandoned by another spouse in bad faith; (1) the domicile of the defendant is in Japan; (iii) it has not been clear whether a spouse is dead or alive for at least (2) the nationalities of the both parties of the divorce are Japanese; three years; (3) the last common residence of the parties of the divorce was (iv) a spouse is suffering from severe mental illness and there is no located in Japan and the plaintiff of the litigation is a resident prospect of recovery; or of Japan; or (v) there is any other grave cause making it difficult to continue the (4) the plaintiff is the resident of Japan and the location of marriage. defendant is unknown. The last element is interpreted to mean the same as “irrecoverable Please note that the litigation not meeting one of the above breakup of the marriage”. The factors to determine the existence categories may be accepted if there is a special circumstance under of this ground are domestic violence, serious insult, failure to work which the judgment by the family court of Japan leads a fair trial or despite the ability to work, wasteful habits, crime, conflict with the a “due and speedy” trial under Article 3-2-7 of the Personal Status spousal family and difference in personal characteristics. Litigation Law (amended). The length of the period of separation is considered as one of The above revision is based on the famous Supreme Court judg- the most important factors in establishing the last ground. However, ment below. separation is not an indispensable factor of divorce. The judgment of the Supreme Court of March 25, 1964 set an There was an argument whether the wife or husband who is exception to the general jurisdictional requirement if the plaintiff is responsible for the irrecoverable breakup of the marriage could file located in Japan and one of the following requirements is met: a divorce lawsuit against his/her spouse. (i) the plaintiff was abandoned by the defendant; The judgment of the Supreme Court dated September 2, 1987 (ii) the whereabouts of the defendant are unknown; or held that he/she could file a divorce if: (iii) in case of other situations equivalent to the above. (i) the duration of separation is particularly long, considering the By applying this rule, the Supreme Court affirmed the jurisdiction ages of the parties and compared with the duration of over the divorce case filed by a Korean wife residing in Japan against cohabitation; her Korean husband who had never been to Japan and whose where- (ii) there are no dependent children; and abouts were not known. (iii) there are no outstanding circumstances, particularly against Another judgment of the Supreme Court of June 24, 1996 set social justice or in situations where the spouse, in objecting to another exception to the general jurisdictional requirement: if the the divorce, will be placed into extremely severe mental, social plaintiff is located in Japan and the plaintiff has difficulty in filing a or economic conditions upon divorce. divorce lawsuit, de juro or de facto, against the defendant in the location of the defendant. 1.3 In the case of an uncontested divorce, do the parties By applying this rule, the Supreme Court affirmed that it has need to attend court and is it possible to have a “private” jurisdiction over a divorce case filed by a Japanese husband residing in Japan against his German wife located in Germany. In this case, divorce, i.e. without any court involvement? the German court rendered a divorce judgment and, therefore, the Japanese husband is not allowed to file a divorce lawsuit again in No, they do not. The parties just have to submit the application for Germany. The Japanese husband did not need to file a lawsuit in divorce to municipal office. Japan in order to divorce his wife. Under the Japanese law, couples may divorce by agreement (Article 763 of the Civil Code). Divorce by agreement can be concluded as far as both parties agree on divorce whether or not there is a ground for judicial divorce.

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1.4 What is the procedure and timescale for a divorce? 1.7 Does your jurisdiction allow separation or nullity proceedings? 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, separation is not allowed but the nullification parties to municipal office. of marriage is allowed. Article 742 of the Civil Code stipulates that With regard to judicial divorce, a party has to file for mediation. marriage shall be void only in the following cases: If the parties reach an agreement for divorce in the mediation (i) if one of the parties has no intention to marry due to mistaken procedure the parties are granted a divorce by mediation, but if not, identity or other cause; or the parties cannot get divorced by mediation. In this case, a party (ii) if the parties do not lodge notification of marriage; provided, who wants to get divorced can file a lawsuit for divorce. In this however, that the effect of marriage shall not be prevented procedure, if the court recognises the existence of one of the merely because notification was not given in the form prescribed grounds for divorce mentioned above, the parties get divorced by in paragraph (2) of Article 739 of the Civil Code. judgment. If the marriage is declared null, the parties can file a lawsuit or file Under Japanese law, the parties cannot file a lawsuit without filing a petition for Adjudication of . for mediation (Article 257(1) of Domestic Relations Case Procedure Act). In cases where there is a serious dispute regarding divorce 1.8 Can divorce proceedings be stayed if there are between parties, it often takes more than one year for the court to render the judgment. proceedings in another country?

1.5 Can a divorce be finalised without resolving other It is generally understood that the Japanese court has jurisdiction over a matter even if there are proceedings in another country, as associated matters? For example, children and finances. long as the Japanese court has the jurisdiction. However, once a foreign court has rendered a judgment and the judgment is If the parties have a child who is still a minor, the person who has recognised as valid in Japan by the Japanese court, the Japanese court parental authority must be determined in both cases whether the will dismiss the ongoing petition for the reason that there is no merit parties get divorced by agreement or judgment (Article 819(1) (2) of to the petition. the Civil Code). If parties agree on that point, the person who has custody shall be decided based on the agreement, if not, the court 2 Finances on Divorce has to decide the person.

1.6 Are foreign divorces recognised in your jurisdiction? If 2.1 What financial orders can the court make on divorce? so, what are the procedural requirements, if any? The court can make orders regarding the distribution of property Foreign divorce is recognised where a foreign divorce judgment is (Article 768 of the Civil Code) and child support payment (Articles final and meets the following conditions provided by Article 118 of 771 and 766(1) of the Civil Code). Code of Civil Procedure: (i) The jurisdiction of the foreign court is recognised under laws or 2.2 Do matrimonial regimes exist and do they need to be regulations or conventions or treaties. addressed by the court on divorce? Is there a default In determining if the foreign court has jurisdiction over the case, matrimonial regime? the same jurisdiction rule adopted by the court of Japan shall apply. For example, the judgment of the Tokyo Family Court of September 11, 2007 refused to recognise a divorce order of Under Article 760 of the Civil Code of Japan, the husband and the the Australian court as both parties had domicile in Japan. wife shall share the marital cost during the marriage. This marital (ii) The defeated defendant has received a service (excluding a cost sharing obligation is terminated upon the divorce. service by publication or any other service similar thereto) of a In accordance with Article 762(1) of the Civil Code of Japan, the summons or order necessary for the commencement of the suit, assets obtained or increased during marriage are assumed as the or has appeared without receiving such service. assets of both husband and wife. To meet this condition, the international service from the The husband and wife may change the above by mutual agree- foreign country to the defendant in Japan shall meet the ment before the marriage according to Article 755 of the Civil Code requirements in compliance with the treaty on the service if of Japan. both Japan and the foreign country are Member States of the Upon the divorce, the assets owned by the husband and wife shall treaty. be divided in accordance with Article 768 of the Civil Code of (iii) The content of the judgment and the court proceedings are not Japan. contrary to public policy in Japan. The above Tokyo Family Court judgment also refused to 2.3 How does the court decide what financial orders to recognise a divorce order of the Australian court as the judg- make? What factors are taken into account? ment is contrary to public policy in Japan. In this case, both the husband and wife had domicile in Japan and the plaintiff With regard to orders for the distribution of property upon divorce, (husband) was solely responsible for the irrecoverable breakup the parties to the divorce could agree on how to distribute the of the marriage and could not file a divorce in Japan. matrimonial property. If both parties fail to agree the method of (iv) A mutual guarantee exists. distribution of matrimonial property, the family court shall deter- In practice, there is no foreign judgment refused to recognise a mine whether to make a distribution, and the amount and method foreign court divorce judgment applying this case. The of that distribution, taking into account the amount of property monetary judgment rendered by the People’s Republic of China obtained through the cooperation of both parties and all other is not recognised under this clause but the divorce judgment of circumstances (Article 768(3) of the Civil Code). the PRC is recognised under this clause.

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Distribution of property under Japanese law is generally under- be governed by Japanese law (Article 27 of Act on General Rules for stood to cover the following three elements: Application of Laws (“AGRAL”)). (i) distribution of matrimonial properties that are acquired during In other cases, the effect of a divorce shall be governed by the marriage; national law of the husband and wife if their national law is the (ii) compensation for the emotional damage caused by divorce; and same, or, where that is not the case, by the law of the habitual (iii) post-divorce maintenance. residence of the husband and wife if their law of the habitual With regard to element (i) above, except for special cases, the levels residence is the same, or, where neither of these is the case, by the of contribution of the parties are assumed to be equal. law of the place most closely connected with the husband and wife With regard to element (ii) above, if a party is responsible for the (Articles 27 and 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 the Civil Code. This claim can be included in the claim of distribution of property. With regard to element (iii) above, in making an order for the The matrimonial home is treated as one of the properties which is distribution of property, the court can only consider this element the object for distribution under the rules mentioned in question 2.3 when one of the parties cannot support his/herself following the above. divorce, even if they receive property from the other party as outlined in the elements (i) and (ii). 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? 2.4 Is the position different between capital and maintenance orders? If so, how? There is no special concept of family trusts under Japanese law.

Under the case laws of Japan, maintenance of the spouse, other than 2.11 Can financial claims be made following a foreign the distribution of property upon divorce, is merely supplemental. divorce in your jurisdiction? If so, what are the 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 to resolve financial settlement on divorce? E.g. court, have a court order and attend court? mediation, arbitration?

If the parties have agreed on financial matters, they do not need to have a court order. With regards to the distribution of property, In Japan, the parties can use mediation and lawsuits. 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 3 Marital Agreements of agreement (Article 768(2) of the Civil Code).

3.1 Are marital agreements (pre and post marriage) 2.6 How long can spousal maintenance orders last and are enforceable? Is the position the same if the agreement is a such orders commonplace? 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-divorce marriage (Article 755 of the Civil Code). Though marital agree- maintenance is considered when the court determines the ments are not popular in Japan, the agreements are enforceable as distribution of property. long as the agreements are not against public policy (Article 90 of

the Civil Code). However, if a party has entered into a contract that 2.7 Is the concept of matrimonial property recognised in departs from the statutory property system, the contract may not be your jurisdiction? asserted against the successor in title of the husband or wife, or a third party unless registered prior to notification of marriage (Article With regard to matrimonial property, except the property owned by 756 of the Civil Code). 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 What are the procedural requirements for a marital divorce, if so, what are the rules on applicable law? Can the agreement to be enforceable on divorce? court make orders applying foreign law rather than the law of the jurisdiction? Under Japanese law, marital agreements are concluded only before marriage Article 755 of the Civil Code). Though marital agreements are not popular in Japan, the agreements are enforceable as long as Under Japanese law, if either the husband or the wife is a Japanese the contents of the agreements are not against public policy of Japan national who has their habitual residence in Japan, their divorce shall (Article 90 of the Civil Code). Also, a foreign agreement on marital

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property concluded under a foreign law may be asserted against a Under Japanese law, the parent who does not reside with the third party when it is registered in Japan (Article 26(4) of AGRAL). dependent child has an obligation to pay child maintenance to the However, if a party has entered into a contract that departs from other parent who resides with the child both within and outside of the statutory property system, the contract may not be asserted marriage. Parents have an obligation to support their dependent against the successor in title of the husband or wife, or a third party child. unless registered prior to notification of marriage (Article 756 of the Civil Code). 5.2 How is child maintenance calculated and is it

administered by the court or an agency? 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or Parents can decide the amount of child support by agreement. In are they limited to the election of the matrimonial property cases where they cannot reach an agreement, the court or a medi- regime? ation agency will decide the amount. In cases where the amount of child maintenance is decided by If a party has entered into a contract that departs from the statutory judgment, mediation or adjudication, the amount is calculated with property system, the contract may not be asserted against the a formula designed to reflect the concept that the parents are successor in title of the husband or wife, or a third party unless regis- responsible for ensuring their dependent child enjoys the same tered prior to notification of marriage (Article 756 of Civil Code). standards of living as the parents. A simplified chart has been As long as the contents of the agreements are not against public created by court. The chart and usage can be obtained on the policy of Japan (Article 90 of Civil Code) the agreements can cover website of the Tokyo Family Court (http://www.courts.go.jp/tokyo- a spouse’s financial claims on divorce. f/saiban/tetuzuki/youikuhi_santei_hyou/). In accordance with the chart, the amount of child maintenance is calculated by taking into account the incomes of both parents, the age of the children, and 4 Cohabitation and the Unmarried Family the number of the children involved. However, in cases where there are special circumstances which result in the amount calculated by 4.1 Do cohabitants, which do not have children, have the formula being considerably unfair, the court can order an amount which departs from the chart by considering the special financial claims if the couple separate? What are the grounds circumstances. to make a financial claim? 5.3 For how long is a parent required to pay child With respect to cohabitation, there is no provision on the subject of maintenance or provide financial support for their children? the division of property for unmarried cohabitees. However, Article For example, can a child seek maintenance during university? 768 of the Civil Code for married parties is applied mutatis mutandis to de facto spouses who live together with the intention of getting married but have not yet filed the formal registration in accordance Though there is no provision stipulating the cut-off age of child with case law. Therefore, de facto spouses have financial claims should support, in general, the parent is required to pay child maintenance they separate. until the child reaches the age of 20. However, in cases where there are special circumstances which 4.2 What financial orders can a cohabitant obtain? 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.

As mentioned above, de facto spouses can obtain an order for 5.4 Can capital or property orders be made to or for the property division. benefit of a child? 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? In cases where the parents cannot agree the amount of child main- tenance, the court can decide the amount and make an order regarding child maintenance. Under Japanese law, there is no provision regarding formal partner- ship status for cohabitants. 5.5 Can a child or adult make a financial claim directly

against their parents? 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? As Article 31 of the Code of Civil Procedure stipulates that “a minor and an adult may not perform any procedural acts unless Under Japanese law, same-sex couples are not permitted to marry. by a statutory agent”, a minor dependent child cannot file a lawsuit As mentioned above, there is no provision regarding formal relation- against the parents to claim child maintenance. ships other than marriage. Some practitioners believe Article 768 of the Civil Code for married parties is applied mutatis mutandis to same- 6 Children – Parental Responsibility and sex couples intending to live forever as a married couple. In that case, a partner may have financial claim against the other if the Custody couple separate. There is no case law so far.

6.1 Explain what rights of custody both parents have in your 5 Child Maintenance jurisdiction whether (a) married, or (b) unmarried?

5.1 What financial claims are available to parents on behalf (a) Under Japanese law, both parents have parental authority of of children within or outside of marriage? children in wedlock during their marriage (Article 818(1)). In

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Japan, parental authority includes both legal and physical Tokyo High Court, however, rendered a reverse decision on custody. At the time of the divorce, by agreement or by the January 26, 2017, which concluded that the mother should have the order of the court, one of the parents shall be given parental parental authority, pointing out visitation issues as one of the authority (Articles 819 (1) and (5) of the Civil Code). consideration factors and stating that “how the children have been (b) On the other hand, with regard to children out of wedlock, the raised up, their wills, etc. should be taken into account in a total mother has the parental authority. manner”. The Supreme Court judged on July 12, 2017, that the Tokyo High 6.2 At what age are children considered adults by the court? Court should be upheld.

Children are considered adults at the age of 20 (Article 4 of the Civil 6.6 Without court orders, what can parents do unilaterally? Code). However, if the children enter into marriage, they are For example, can they take a child abroad? considered adults even if under the age of 20. Under Japanese law, the parental authority can be exercised without 6.3 What is the duration of children orders (up to the age of court order. As the parent who has parental authority can determine 16 or 18 or otherwise)? the residence of the child (Article 821 of the Civil Code), he/she can take the child abroad without a court order.

A child who is under the age of 20 is subject to the parental auth- ority of his/her parents (Article 818(1) of the Civil Code). However, 6.7 Is there a presumption of an equal division of time in cases where the child enters into marriage, he/she is no longer between separating or divorcing parents? subject to the parental authority (Article 753 of the Civil Code). Under Japanese law, there is no concept of joint parental authority, 6.4 What orders can the court make in relation to children? and there is no presumption of an equal division of time between Does the court automatically make orders in relation to child separating or divorcing parents. Equal division of time is often regarded to be too much of a burden on the child’s family and arrangements in the event of divorce? school life with the primary caregiver.

Upon the divorce, the court shall decide the sole parental authority 6.8 Are unmarried parents treated in the same way as if the parties to the divorce fail to determine who is to become the sole parental authority in accordance with Articles 819(1) to (3) of married parents when the court makes orders on separation the Civil Code. or divorce?

6.5 What factors does the court consider when making Under the laws of Japan, unmarried parents are not treated in the orders in relation to children? same way as married parents. The court also does not have the auth- ority to make orders on the separation or divorce of the unmarried couple. The parental authority is held by the mother of the child Upon the determination of the sole parental authority, the court will until the father adopts the child. have considered who is the primary caregiver of the child, continuity of the family and school life of the children and the will of the children. The mother has generally been the primary caregiver for 6.9 Is a welfare report prepared by an independent the child and often takes her child to her parents’ home upon divorce professional or is the decision taken by the Judge alone? If in Japan. so, does the child meet the Judge? During the divorce mediation and litigation, the primary caregiver is most likely regarded as the mother. After the separation of the In cases with regard to children, including parental authority and husband and wife, the family and school life of the child would easily visitation, the judge may have a family court probation officer be established with the mother. In some cases, the child is strongly examine the facts of the case (Article 58(1) of the Domestic encouraged by the mother to refuse to see his/her father. Children Relations Case Procedure Act). In that case, the officer meets the may also sense the feeling of the mother who is the sole caregiver child and speaks with them instead of the judge. However, whether of the child, and refuse to see the father voluntarily. In that case, the the officer speaks with the child is at the discretion of the judge. left-behind husband has very little chance to be appointed as the sole parental authority by the court based on the continuity of the family and school life of the child and his/her will. 6.10 Is there separate representation for children in your There is a consensus among family law practitioners in Japan, that jurisdiction and, if so, who would represent them, e.g. a the mother has a strong incentive to abduct the child(ren) from her lawyer? husband upon the divorce in the sole custodian determination procedure under Article 819(1) of the Civil Code. Some countries, Yes. Only a qualified lawyer can represent the child(ren) in accord- such as the US, criticise Japan as “the haven of abductor”. ance with Article 23 of Domestic Relations Case Procedure Act. Recently, the Matsudo branch of the Chiba District Court rendered an epoch-making decision on March 29, 2016 (Matsudo Judgment). The Matsudo judgment compared the parenting plans 6.11 Do any other adults have a say in relation to the submitted by both the wife and the husband (who had been left arrangements for the children? E.g. step-parents or behind for six years without visitation of his child) and appointed grandparents or siblings. What methods of dispute resolution the husband as the parental authority of the child because his are available to resolve disputes relating to children? parental plan was friendlier than that of the mother as it provided more chances for visitation to the other. This judgment is recognised to apply the parent-friendly rules adopted in the US and No. The exclusive custody rights of the child(ren) are given to the other Western countries. parents of the child in accordance with Article 818(1).

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To resolve disputes relating to children, the methods of mediation As question 6.5 explained above, although the Matsudo branch of and litigation of the family court are available. the Chiba District Court rendered a decision on March 29, 2016 (Matsudo Judgment), applying the parent-friendly rules adopted in 7 Children – International Aspects the US and other western countries, it was overruled by the Tokyo High Court decision on January 26, 2017, which concluded that the mother should have the parental authority, pointing out visitation 7.1 Can the custodial parent move to another state/country issues as one of the consideration factors and stating “how the without the other parent’s consent? children have been raised up, their wills, etc. should be taken into account in a total manner”. This view was upheld and finalised by the Supreme Court judgment on July 12, 2017. Under the laws of Japan, one of the parents shall have the parental In Japan, a child’s mother taking him/her away from the father authority upon the divorce, in accordance with Articles 819(1),(2) has also been considered parental alienation or brainwashing of the and (5). The parent holding parental authority can decide the place child. Although the courts do not explicitly recognise the concept of the residence of child (Article 821 of the Civil Code). He/she of parental alienation, which is a controversial concept in the US, can, therefore, move to another country together with the child the court of Japan implicitly recognises the concept. A district court without the consent of the other parent. states that the opinion of the child taken by a Japanese mother from

a foreign father is not always trustworthy in that the child is heavily 7.2 Can the custodial parent move to another part of the dependent on the mother and may be influenced by her opinion too state/country without the other parent’s consent? much. The issue is how to prevent such parental alienation. Some Under the laws of Japan, one of the parents shall have the parental scholars and practitioners believe the spirit of the Hague authority upon the divorce, in accordance with Articles 819(1) and Convention, which is applicable only in international abduction (2). The parent holding parental authority can decide the place of cases, should also be applicable in the domestic abduction cases. the residence of child (Article 821 of the Civil Code). He/she can, According to them, the court should order that the provisional therefore, move to another country together with the child without retrievable order be issued to avoid the parental alienation. the consent of the other parent. 8.2 What are some of the areas of family law which you think 7.3 If the court is making a decision on relocation of a child should be looked into in your jurisdiction? abroad, what factors are taken into account? 1. Which law should be applied in an International Divorce? Under the laws of Japan, the court has no authority to render the International marriage and divorce areas of family law should relocation order. be looked into in Japan. Under Article 27 of GRAL, the governing law shall be the governing law of their marriage if either husband or wife is a Japanese national 7.4 If the court is making a decision on a child moving to a who has habitual residence in Japan. Accordingly, where an inter- different part of the state/country, what factors are taken into national couple, one of whom is Japanese, has lived in Japan for account? more than one year, their divorce should be governed by the laws of Japan. Under the laws of Japan, the court has no authority to render the Under Articles 27 and 25 of GRAL, the effect of a divorce shall relocation order, thus, there is no specific procedure for seeking the be governed by the national law of the husband and wife if their permission of the court to remove a child out of Japan. national 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, 7.5 In practice, how rare is it for the custodial parent to be by law of the place most closely connected with the husband and allowed to relocate internationally/interstate? wife. For example, where a US husband and a Canadian wife have been living together in Japan for more than one year, their divorce No practice of the court allows the custodial parent to relocate the should be governed by the laws of Japan. child internationally. Under Article 38(3) of GRAL, where a party concerned has nationality in a country where different laws are applied in different 7.6 How does your jurisdiction deal with abduction cases? regions, his/her national law shall be the law designated in accord- ance with the uniform rules of the country (in the absence of such For example, is your jurisdiction a party to the Hague rules) and the law of the region with which the party is most closely Convention? connected. Under Article 38(3) and Article 27 of GRAL, a US couple, with The law of Japan was amended on June 12, 2013, Japan entered into a husband born and having grown up in the state of New York and the Hague Convention on January 24, 2014, and the convention a wife born and having grown up in the state of California, does not became effective in Japan on April 1, 2014. As a result, Japan deals have the same national law and therefore the laws of Japan should with abduction cases in accordance with the Convention. be the governing law of their divorce if they live in Japan for more than one year. 8 Overview Because there is a uniform divorce law in relation to the elements of divorce in Canada and there is also a family law in each state in relation to asset distribution, the governing law of uniform divorce 8.1 In your view, what are the significant developments in law would be the governing law of divorce but the Japanese law family law in your jurisdiction in the last two years? would be the governing law of the asset distribution of their divorce if they live in Japan for more than one year.

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2. Which law should be applied in relation to parental rights for more than a year, he/she has habitual residence of Japan. As and obligations upon an International Divorce? his/her mother is Japanese, the parental relationship with the US Under Article 32 of GRAL, the legal relationship between parents citizen shall be governed by the laws of Japan under Articles 38(1) and their child shall be governed by the child’s national law if it is and 32 of GRAL. the same as the national law of either the father or mother or, in 3. Expert legal advice is highly recommended. other cases, governed by the law of the child’s habitual residence. As explained above, the governing law of the divorce for inter- One big issue is where the child has dual nationalities. national couples is highly complex and the advice of experienced Under Article 38(1) of GRAL, where a party has two or more international divorce experts, such as our firm, is highly recommended. nationalities, the party’s national law shall be the law of the country of his/her nationality where he/she has habitual residence, or, the Acknowledgment law of the country closest to that of the party’s nationality where he/she has habitual residence; provided, however, that if one of those nationalities is Japanese, Japanese law shall be the party’s This article has greatly benefitted from “Mikiko Otani., 2013. Japan. national law. In: James Stewart et al., ed. 2013. Family Law. London: Sweet & For example, a father is a US citizen and a mother is Japanese. A Maxwell. pp.359-374”. The author of this chapter is deeply grateful child between a US citizen and a Japanese citizen would have US and to Ms. Mikiko Otani. Japanese nationalities. As long as the child has been living in Japan

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

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

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

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Jersey Jersey

Barbara Corbett

Corbett Le Quesne Nicholas Le Quesne

1 Divorce a divorce without alleging fault against the other party, but only where the parties have lived apart for at least one year. There is no provision for attempted reconciliation. If 1.1 What are the grounds of jurisdiction for divorce cohabitation occurs during the separation, the period of separation must start again. proceedings? For example, residence, nationality, domicile, The Law Commission of Jersey has recommended that no-fault etc.? divorce without the need for the parties to live apart be adopted in Jersey. However, this has not yet been taken up by the States of The family court (the Family Division of the Royal Court of Jersey) Jersey. has jurisdiction in relation to divorce, nullity and judicial separation (Matrimonial Causes (Jersey) Law 1949, Articles 3 and 6): 1.3 In the case of an uncontested divorce, do the parties ■ Where the parties are domiciled in Jersey when proceedings are need to attend court and is it possible to have a “private” commenced. ■ Where either of the parties was habitually resident in Jersey for divorce, i.e. without any court involvement? the year immediately preceding the date proceedings started. ■ In the case of nullity or presumption of death, where either of There is no need for the parties to attend court for an undefended the parties were habitually resident in Jersey for the year immedi- divorce to go ahead. There is no provision for a private divorce in ately preceding the date proceedings are started or for a year Jersey. preceding the death. ■ It is of note that in Jersey there is a domicile of dependence for 1.4 What is the procedure and timescale for a divorce? married women which means that if the husband is domiciled in Jersey, then so is the wife. If the husband is not domiciled in Jersey then in order for there to be jurisdiction for divorce A divorce petition must be filed with the Judicial Greffe (court proceedings one of the parties must have lived in Jersey for the office), together with: preceding year. ■ A Statement of Arrangements for Children, setting out the care and financial arrangements for the children of the family (not just birth children) (Form 5). 1.2 What are the grounds for a divorce? For example, is ■ The original marriage certificate. there a required period of separation, can the parties have an ■ The court fee (paid by way of treasury receipt). uncontested divorce? ■ An acknowledgment of service form (Form 4). ■ An explanatory leaflet (Form 3). Divorce is only available after three years of marriage, except in The petition is then issued by the Judicial Greffe and returned to exceptional circumstances. The grounds for divorce are (on the part the petitioner together with Forms 3, 4 and 5 to be served. Service of the respondent): can be achieved by post, personally through the Viscount or via ■ Adultery. lawyers (if agreed). ■ Desertion for two years. The respondent must return Form 4 to the Greffe within eight ■ The respondent’s behaviour is such that it is unreasonable for days of service indicating whether or not the divorce is defended the petitioner to live with the respondent. (and file an answer within 22 days if it is). If the petition is ■ Incurable mental illness. undefended, the petitioner must apply for a Greffier’s Certificate ■ Serving a prison sentence of more than 15 years (or life). confirming entitlement to a divorce and the matter is put on the The concepts of “collusion, condonation and connivance” attach “undefended list” for decree nisi to be granted. There are undefended to the above grounds. Irretrievable breakdown is not a ground for lists approximately every two months. The court must be satisfied divorce. that the arrangements for the children are suitable before granting a A divorce may also be granted if the parties have lived apart for a decree nisi. Decree absolute can be applied for by the petitioner six weeks year and the respondent consents to the divorce, or if the parties after decree nisi is granted and by the respondent three months after have lived apart for two years immediately before the divorce that. proceedings are started (no consent required). In such separation If a divorce is defended, notice of intention to defend must be divorces, the parties must have lived apart for the whole of the given within eight days of the petition being served and an answer period of either one or two years. Therefore, it is possible to obtain within 22 days. Once an answer has been filed the petitioner then applies for the matter to be listed for a hearing. In almost every case

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the hearing of a defended petition is avoided by either a cross ■ The respondent was, at the time of the marriage, pregnant by petition or amended particulars of behaviour and significant judicial some person other than the petitioner (or a former husband, encouragement. while married). ■ The respondent was suffering from a venereal disease at the time 1.5 Can a divorce be finalised without resolving other of the marriage. ■ Either party to the marriage was, at the time of the marriage, of associated matters? For example, children and finances. 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 A divorce can be finalised (decree absolute obtained) without financial and the procreation of children or subject to recurrent attacks matters having been resolved but the court must be satisfied that the of insanity or epilepsy. arrangements for the children are satisfactory before granting a final ■ An interim certificate has, after the time of the marriage, been decree. issued to either party to the marriage (pursuant to the Gender Recognition (Jersey) Law 2010). 1.6 Are foreign divorces recognised in your jurisdiction? If For the last four grounds above, the court will not grant a decree so, what are the procedural requirements, if any? unless all of the following are satisfied: ■ The petitioner was, at the time of the marriage, ignorant of the facts alleged. Marriages ■ Proceedings were instituted within a year from the date of the If a foreign marriage is validly contracted according to the law of marriage. the jurisdiction in which it took place, it will be recognised in Jersey. ■ Marital intercourse with the consent of the petitioner has not Divorces/annulment taken place since the discovery by the petitioner of the existence Under the Recognition of Divorces and Legal Separations (Jersey) of the grounds for a decree. Law 1973 (the “Law”), a decree of divorce or judicial separation Procedure: The procedure for nullity is the same as for divorce in granted in any part of the British Islands is recognised in Jersey, as that undefended causes can be dealt with without the parties are any divorces and legal separations that have been obtained by attending a hearing, following the issue of a Greffier’s Certificate judicial or other proceedings in any other country and that are confirming that the petitioner is entitled to a decree of divorce, effective under the law of that country. judicial separation or nullity (see above, Divorce: Procedure). Where a divorce is recognised under the Law, neither spouse will Judicial separation be precluded from remarrying in Jersey on the ground that the Grounds: Judicial separation is available on the same grounds as divorce is not recognised as valid in another country. divorce (see above, Divorce: Grounds) with the addition of the There is an exception to the recognition of a foreign divorce respondent being “an habitual drunkard”. A judicial separation can where, according to the law of Jersey (including its rules of private be obtained at any time after marriage, so can be used during the first international law), there was no subsisting marriage between the three years of marriage when divorce is unavailable (see above, parties. Divorce: Grounds). Civil partnerships Procedure: The procedure for judicial separation is the same as Foreign civil partnerships and foreign dissolutions and separations for divorce, in that undefended causes can be dealt with without the are recognised in Jersey if they have been obtained by judicial or parties attending a hearing, following the issue of a Greffier’s other proceedings in another country and are effective under the law Certificate confirming that the petitioner is entitled to a decree of of that country (Articles 60 to 61, Civil Partnership (Jersey) Law divorce, judicial separation or nullity (see above, Divorce: Procedure). 2012). Where dissolution or nullity of a civil partnership is recognised in Jersey, neither party will be precluded from entering into another civil 1.8 Can divorce proceedings be stayed if there are partnership or marriage on the ground that the dissolution is not proceedings in another country? recognised as valid in another country. There are no procedural requirements. Evidence of the divorce is sufficient. If the Jersey courts have jurisdiction to accept an application for divorce or other family matters, then an application can be made in 1.7 Does your jurisdiction allow separation or nullity Jersey regardless of any other proceedings already being extant else- proceedings? where. Jersey is not subject to the Brussels II Regulation. Therefore, issuing proceedings first in another jurisdiction does not necessarily oust the Jersey court. An application for a stay of Jersey proceedings Nullity is made by summons on Form 15 in divorce or financial remedy Grounds: A marriage can be annulled if it is void, on the following (ancillary relief ) proceedings and Form C2 in Children Law proceed- grounds: ings. ■ One or both of the parties is under 16 years of age. A divorce petition must include details of any previous or current ■ At the time of the marriage one or both of the parties was proceedings in Jersey or elsewhere, which relate to the marriage or already married. any children. A marriage can also be annulled if it is voidable, on the following grounds: ■ The impotency of one or both parties to the marriage since its 2 Finances on Divorce celebration. ■ The marriage was celebrated through fraud, threats or duress. 2.1 What financial orders can the court make on divorce? ■ The marriage has not been consummated owing to the wilful refusal of the respondent. ■ Either party has taken steps for the recognition of his or her In relation to ancillary relief, the overriding objective is to deal with change of gender. cases justly (rule 47, Matrimonial Causes Rules 2005). ■ The respondent is a person whose gender at the time of the The court has the power to vary trusts, marriage settlements, post- marriage had become the acquired gender. nuptial settlements or separation agreements in any way it appears to the court to be just, having regard to the means of the parties, the

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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 court also has the power to: the agreement. The consent order needs to be accompanied by a ■ Transfer any property to the other party (or to the children of “statement of information for a consent order” setting out the the family, or anyone else for the benefit of the children). financial position of the parties so the court can (roughly) assess the ■ Order periodical payments, lump sums (more than one is fairness of the agreement embodied in the consent order. permissible and any sums may be ordered to be paid in instal- ments) and secure such payments, for both the other spouse and 2.6 How long can spousal maintenance orders last and are any children of the family. 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 specific people or that there is a deferred sale. Spousal maintenance can be on a joint-lives basis but such orders are ■ Order the execution of documents by others where a person relatively rare. Spousal maintenance, when ordered will more usually does not comply with an order for sale. be for a fixed term with a view to the receiving spouse becoming There is also a power to vary, suspend or discharge orders. The independent. Clean break arrangements are preferred. Spousal court must have regard to all the circumstances of the case, including maintenance can be capitalised. any increase or decrease in the means of the parties when making any such orders. 2.7 Is the concept of matrimonial property recognised in There is no power to make pension-sharing orders or any power your jurisdiction? to set aside prior transactions that may have been made with the intention of defeating claims. However, “Pauline actions” (that is, setting aside transfers of property to others or into trusts made with Yes, but the date of the acquisition of assets is taken into account the intention of avoiding paying a former spouse or defrauding as part of all the circumstances of the case. creditors) and tracing claims are available if necessary. Trust, company or other assets, the legal title to which is not held 2.8 Do the courts treat foreign nationals differently on by one of the parties, can be taken into account as a financial divorce, if so, what are the rules on applicable law? Can the resource, depending on the circumstances of the case. For example, court make orders applying foreign law rather than the law of if one of the parties is a beneficiary of a discretionary trust and has the jurisdiction? been provided with accommodation from the trust, this will be taken into account when an order is made. On the other hand, the court cannot order a third party (such as a trust or a company) to make Foreign nationals are not treated differently on divorce. The Royal payments to a spouse. There can be “judicial encouragement” but Court of Jersey only applies Jersey law. nothing more. 2.9 How is the matrimonial home treated on divorce? 2.2 Do matrimonial regimes exist and do they need to be addressed by the court on divorce? Is there a default The matrimonial home is treated as any other asset on divorce. It matrimonial regime? will generally be considered as a matrimonial asset even if it is in the sole name of only one of the parties and even if it was acquired before the marriage. The court will always seek to ensure that any Matrimonial regimes do not exist. The default position is that each minor children and the parties are suitably housed but only if party to a marriage holds his or her property in their own name or finances allow. joint names accordingly.

There is no community of property. 2.10 Is the concept of “trusts” recognised in your 2.3 How does the court decide what financial orders to jurisdiction? If so, how? make? What factors are taken into account? Yes, it is recognised.

The Matrimonial Causes (Jersey) Law 1949 stipulates that the court must exercise its powers to make financial orders “having regard to 2.11 Can financial claims be made following a foreign all the circumstances of the case including the conduct of the parties divorce in your jurisdiction? If so, what are the grounds? to the marriage insofar as it would be inequitable to disregard it and to their actual and potential financial circumstances”. There are no specific provisions in Jersey to make orders following However, through case law (Howarth v McBride (1984) JJ 1), the a foreign divorce. English “section 25 factors” have been brought into Jersey law.

2.12 What methods of dispute resolution are available to 2.4 Is the position different between capital and resolve financial settlement on divorce? E.g. court, maintenance orders? If so, how? mediation, arbitration?

No, although a party’s financial need is of more importance in ■ Mediation, both on the “family” model of several short sessions spousal maintenance claims. without lawyers and the “civil” model of one or two days of

intensive mediation with the assistance of lawyers and an 2.5 If a couple agrees on financial matters, do they need to independent mediator. have a court order and attend court? ■ Arbitration, both for finances and children. ■ “Private FDRs”, where the facilitator gives a steer to the parties to assist negotiations and Early Neutral Evaluation.

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■ Collaborative law is also available in Jersey. 4 Cohabitation and the Unmarried Family ■ Court.

3 Marital Agreements 4.1 Do cohabitants, which do not have children, have financial claims if the couple separate? What are the grounds 3.1 Are marital agreements (pre and post marriage) to make a financial claim? enforceable? Is the position the same if the agreement is a foreign agreement? No, not unless there are any contractual or property rights.

4.2 What financial orders can a cohabitant obtain? In Jersey, the position for agreements is very similar to that in England and Wales, and Guernsey. Pre-nuptial agreements do not bind the court, but their existence can be taken into account in the No, none other than contractual or property rights. exercise of the court’s discretion. Provided a decree of divorce or nullity or judicial separation has been made, the court has full power 4.3 Is there a formal partnership status for cohabitants (for under the Matrimonial Causes (Jersey) Law 1949 to: example, civil partnerships, PACS)? ■ Vary any marriage settlement or post-nuptial settlement (Article 27). ■ Order that any property one party is entitled to, be transferred No, not for opposite-sex couples yet, although legislation has been to the other party or any child of the family (Article 28). approved in principle. When making financial orders, the court must have “regard to all the circumstances of the case including the conduct of the parties 4.4 Are same-sex couples permitted to marry or enter other to the marriage insofar as it may be inequitable to disregard it and to formal relationships in your jurisdiction? their actual and potential financial circumstances”. If parties have entered into a pre-nuptial agreement with the benefit of full Civil partnerships were brought in in 2012 and same-sex marriage disclosure and legal advice, in the absence of duress or undue on 1st July 2018. influence, that will be taken into account as part of the conduct of the parties. A pre-nuptial agreement should therefore be taken into account by the court, but no agreement can oust the court’s 5 Child Maintenance jurisdiction in respect of applications under the Matrimonial Causes (Jersey) Law 1949. 5.1 What financial claims are available to parents on behalf The case of L v M [2016] JRC184A confirms that a pre-nuptial agreement should be taken into account as part of “all the circum- of children within or outside of marriage? stances of the case”. However, the parties will not be held to their bargain if to do so would leave one party in great need and the other A parent or someone in whose favour a residence order is in force with plenty. The same applies wherever the agreement was made. can make an application for financial relief by way of an application under Schedule 1 of the Children (Jersey) Law 2002. The court can 3.2 What are the procedural requirements for a marital order that either or both parents of the child make periodical agreement to be enforceable on divorce? payments, secured periodical payments, a lump sum payment or transfer property to the applicant for the benefit of the child or to the child personally. The court can also order a settlement to be There are no specific requirements for a marital agreement to be made for the benefit of the child. These applications can be made enforceable on divorce. Marital agreements are not enforceable, the regardless of whether the parties are married, although usually where court retains full discretion in respect of how much weight is given the parties are married, applications are made within divorce and to them on divorce. However, increasingly the court will follow the financial remedy proceedings under the Matrimonial Causes (Jersey) terms of marital agreements if to do so would not leave either party Law 1949. Orders usually last until a child’s 17th birthday, but can be in a situation of real need. For a marital agreement to have the best extended to no later than the child’s 18th birthday, unless the child is chance of being upheld there needs to be: in education or training or where there are special circumstances. ■ full disclosure of the assets; ■ independent legal advice to both parties such that they are each 5.2 How is child maintenance calculated and is it aware of the consequences of entering into or not entering into the agreement; administered by the court or an agency? ■ no fraud, threats or duress; and ■ with a pre-nuptial agreement, it needs to have been made with Child maintenance is decided by the court if the parties cannot sufficient time before the marriage, preferably six weeks before- agree. The general starting point is 15% of the paying party’s net hand. 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 3.3 Can marital agreements cover a spouse’s financial and other expenses such as medical and dental. claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property 5.3 For how long is a parent required to pay child regime? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? Marital agreements are generally entered into to determine the financial claims on divorce or death. 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 6.5 What factors does the court consider when making maintenance under Schedule 1 of the Children (Jersey) Law 2002. orders in relation to children?

5.4 Can capital or property orders be made to or for the When making orders in respect of children under the Children benefit of a child? (Jersey) Law 2002, the child’s welfare is paramount and it is assumed that delay is likely to prejudice the welfare of the child. The court Yes, they can under Schedule 1 Children (Jersey) Law 2002. must have regard to the “welfare checklist”, which can be summarised as follows: the ascertainable wishes of the child; the 5.5 Can a child or adult make a financial claim directly child’s physical, emotional and educational needs; the effect of change on the child; the child’s age; sex; background and other char- against their parents? acteristics; any harm the child has suffered or is at risk of suffering; how capable the child’s parents are of meeting his or her needs; and Yes, they can. the range of powers available to the court.

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

6.1 Explain what rights of custody both parents have in your When a residence order is in force the parent in whose favour the jurisdiction whether (a) married, or (b) unmarried? order is made can take the child abroad for up to a month without the agreement of the other parent. Where both parents have parental responsibility for a child they can make day-to-day decisions. Where a child’s father and mother were married to each other at the Larger matters such as education and religion and medical inter- time of the birth they each have parental responsibility for the child. ventions should be discussed with both parents. The consent of all Where the parents are unmarried, only the mother has parental people with parental responsibility is required to consent to a change responsibility (Article 3, Children (Jersey) Law 2002). The father can of a child’s name, adoption or relocation to another jurisdiction. gain parental responsibility by either: ■ Being named as the father of the child on the birth certificate 6.7 Is there a presumption of an equal division of time (applicable to births after 2nd December 2016). ■ Entering into a parental responsibility agreement with the between separating or divorcing parents? mother. ■ Order of the court. No, but frequently such shared care orders are made. It is currently not possible for non-birth same-sex parents to obtain parental responsibility except by way of a residence order. 6.8 Are unmarried parents treated in the same way as This anomaly is not human rights or discrimination law compliant. married parents when the court makes orders on separation

or divorce? 6.2 At what age are children considered adults by the court?

Yes, except married couples can use the divorce legislation to deal Children are considered to be adults at 18 years old. with child maintenance.

6.3 What is the duration of children orders (up to the age of 6.9 Is a welfare report prepared by an independent 16 or 18 or otherwise)? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? Residence orders last until a child is 16 but can be extended to 18 in special circumstances. Parental responsibility lasts until the child is 18. A report is usually prepared by the Jersey Family Court Advisory Service (“JFCAS”). The children very rarely meet the judge. 6.4 What orders can the court make in relation to children?

Does the court automatically make orders in relation to child 6.10 Is there separate representation for children in your arrangements in the event of divorce? jurisdiction and, if so, who would represent them, e.g. a lawyer? The court does not automatically make orders in relation to children on divorce. If the parents cannot agree on whom the child should live with, or how much contact he or she should have with a parent Yes, by virtue of Article 75 Children (Jersey) Law 2002. Children (or others) an application can be made to the court for an order can have a children’s guardian (social worker) appointed under this under Article 10 Children (Jersey) Law 2002. An order under this article and/or an advocate (lawyer) article can designate: ■ Who a child lives with (residence order). 6.11 Do any other adults have a say in relation to the ■ With whom the child has contact (contact order). arrangements for the children? E.g. step-parents or ■ Whether there should be a shared residence order. grandparents or siblings. What methods of dispute resolution With a shared residence order, the court can determine the time the child spends with each parent and also impose other conditions are available to resolve disputes relating to children? as necessary. The order relates to whom the child lives with, not to where the child lives. Other people such as step-parents or grandparents can apply for residence, contact, specific issue or prohibited steps orders but they

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need leave of the court first. Leave is generally given if there is a 7.6 How does your jurisdiction deal with abduction cases? genuine reason for the application. The following methods are avail- For example, is your jurisdiction a party to the Hague able: mediation (including direct consultation with children); conciliation with JFCAS; arbitration; collaborative law; and Convention? negotiation. Jersey is a signatory to the Hague Convention and the central auth- 7 Children – International Aspects ority is the Attorney General. Abduction cases are dealt with swiftly and well.

7.1 Can the custodial parent move to another state/country 8 Overview without the other parent’s consent?

8.1 In your view, what are the significant developments in Generally no, although there are some exceptions. The parent can always move; it is taking the children that causes problems. family law in your jurisdiction in the last two years?

7.2 Can the custodial parent move to another part of the A significant development has been the introduction of same-sex state/country without the other parent’s consent? marriage in July 2018. There are moves being made towards divorce reform to include no-fault divorce and the removal of the three-year bar but these have not yet resulted in legislation. There has been a Yes, but as Jersey is only 45 square miles in size this is rarely a huge commitment to bringing in opposite-sex civil partnerships but again, problem! it has yet to reach the statute books.

7.3 If the court is making a decision on relocation of a child 8.2 What are some of the areas of family law which you think abroad, what factors are taken into account? should be looked into in your jurisdiction?

The welfare of the child is paramount and all the same criteria as There needs to be divorce reform to bring in no-fault divorce. There mentioned in question 6.5 above apply. The parent who is planning also needs to be a tidying up of the legislation to take into account to relocate with the child will need to provide the court with full the new same-sex marriage provisions. Currently, only opposite-sex details about the accommodation and education plans for the child, spouses automatically get parental responsibility for their children; the parent’s income, social network, family ties and the arrangements it is necessary to apply for a joint residence order or adoption in for contact with the left-behind parent. order for same-sex couples to both have parental responsibility. There also needs to be legislation in respect of surrogacy and 7.4 If the court is making a decision on a child moving to a assisted reproduction as there is currently no legislation at all. The different part of the state/country, what factors are taken into Jersey Law Commission is working on these matters. Cohabitation account? and provision for family and dependants on death are also matters which need reform. These are also areas in which the Jersey Law Commission is involved. This is not really an issue in Jersey, although the welfare of the child is always paramount.

7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate?

If the parent has detailed specific plans, especially for maintaining the relationship with the other parent, it is likely that they will be able to go, but it is a high bar.

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Barbara Corbett is a family lawyer, fully qualified as an English solicitor and a Jersey advocate with well over 20 years’ experience. She is a founding partner of the specialist family law firm, Corbett Le Quesne. Barbara is a Fellow of the International Academy of Family Lawyers, a collaborative lawyer, mediator and family arbitrator. She has expertise in all areas of family law, particularly with an international element, including marital agree- ments, complex finance cases, relocation and child abduction. She is based in Jersey, Channel Islands.

Corbett Le Quesne Tel: +44 1534 733 030 1a West’s Centre Email: [email protected] St Helier URL: www.corbettlequesne.com Jersey JE2 4ST

Nicholas Le Quesne is an experienced English solicitor, Jersey advocate and qualified collaborative lawyer. Nicholas has expertise in all areas of family law and is committed to helping clients resolve problems in a positive and conciliatory manner wherever possible. Many of Nicholas’ cases have an international element; he frequently advises foreign lawyers on Jersey law, especially in respect of cross- jurisdictional pre-nuptial agreements and cases involving trusts and 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 Tel: +44 1534 733 030 1a West’s Centre Email: [email protected] St Helier URL: www.corbettlequesne.com Jersey JE2 4ST

Corbett Le Quesne is a specialist family law firm based in Jersey, Channel Islands. The firm advises on all aspects of family law including complex financial arrangements arising out of divorce involving trusts and business assets and difficult 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. The firm regularly organises international family law events in Jersey. www.corbettlequesne.com

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Malaysia Malaysia

Ariff Rozhan & Co Ezane Chong

1 Divorce (iv) the parties to the marriage have lived apart for a continuous period of at least two years before the presentation of the petition. 1.1 What are the grounds of jurisdiction for divorce A petition for divorce cannot be presented: (a) within the first two years of marriage unless it can be shown that proceedings? For example, residence, nationality, domicile, there are exceptional circumstances or hardship suffered by the etc.? petitioner (s 50, LRA). This requirement does not apply to a marriage where one spouse has converted to Islam; and With respect to non-Muslim divorces, the Malaysian courts have (b) subject to certain exceptions, until the couple has first referred jurisdiction to grant a decree of divorce if: their matrimonial difficulty to a conciliatory body and that body (a) the marriage was or is deemed to be registered under the Law has certified that it has failed to reconcile them (s 106, LRA). Reform (Marriage & Divorce) Act 1976 (LRA) (s 48(1)(a), LRA), Reference to a conciliatory body is not required if the couple is or was contracted under a law providing that, or in contem- dissolving the marriage on the ground of conversion to Islam plation of which, marriage is monogamous (s 48(1)(b), LRA); or by mutual consent. and Unless the petitioner is relying on desertion or two years of living (b) the domicile of the parties to the marriage at the time when the apart as a ground for divorce, there is no required period of separ- divorce petition is presented is in Malaysia (s 48(1)(c), LRA). ation. In Malaysia, a wife does not a possess a domicile of her own. A The parties can have an uncontested divorce. woman acquires the domicile of her husband upon marriage and assumes his domicile during the subsistence of that marriage (Khoo 1.3 In the case of an uncontested divorce, do the parties Kay Peng v Pauline Chai Siew Phin [2014] 10 CLJ 403). A married need to attend court and is it possible to have a “private” couple, therefore, have only one domicile and that is the domicile of the husband. However, as an exception, a wife may petition for divorce, i.e. without any court involvement? divorce although her husband is not domiciled or resident in Malaysia if she has been deserted by him or if he has been deported Both parties must attend court. If a party is unable to attend, leave from Malaysia and was before the desertion or deportation of court to dispense with that party’s presence must be sought. domiciled in Malaysia, or if she is resident in Malaysia and has been It is not possible to have a “private” divorce. The legal ordinarily resident in Malaysia for a period of two years immediately termination of a marriage, whether by divorce, judicial separation or preceding the commencement of the proceedings (s 49, LRA). annulment can only be effected by a decree of court.

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? If the divorce is uncontested, the parties may file a joint petition for divorce. A hearing date is usually fixed within one month from the A married couple may petition for divorce: date of filing whereupon a decree nisi may be pronounced. The decree (a) where one party to the marriage has converted to Islam (s 51, absolute is applied for after three months from the decree nisi, unless LRA); the court grants leave to expedite it. (b) where both parties mutually consent to its dissolution (s 52, If the divorce is contested, the petitioner files a unilateral petition LRA); for divorce. Further pleadings are then exchanged. Upon close of (c) where the marriage has irretrievably broken down (s 53, LRA) pleadings, pre-trial case management directions will be given by the by reason of one or more of the following facts (s 54, LRA): court and trial dates fixed. The judge will hear the case and, after (i) the respondent has committed adultery and the petitioner considering all the evidence including the testimony of witnesses, finds it intolerable to live with the respondent; may pronounce a decree nisi, to be made absolute after three months (ii) the respondent has behaved in such a way that the unless expedited. During the proceedings, discovery and inspection petitioner cannot reasonably be expected to live with the of documents may be sought and interlocutory applications, for respondent; example applications for child custody, maintenance pending suit, a (iii) the respondent has deserted the petitioner for a stay of proceedings, and injunctions, may be filed. The timescale continuous period of at least two years immediately can range from one year to a few years, depending on the volume preceding the presentation of the petition; and and complexity of the facts and issues being tried and the degree to which the proceedings are contested by the parties.

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1.5 Can a divorce be finalised without resolving other 2 Finances on Divorce associated matters? For example, children and finances.

2.1 What financial orders can the court make on divorce? Before granting a decree of divorce, the court will consider all the circumstances of the case including how the interests of any children of the marriage and the parties may be affected. In the case of an Division of matrimonial assets (s 76, LRA) uncontested divorce, the court will want to be satisfied that both The court is empowered, when granting a decree of divorce or parties freely consent to divorce and that proper provisions are made judicial separation, to order the division between the parties of any for the wife and for the support, care and custody of the children. assets acquired by them during the marriage or the sale of any such Whilst the court is empowered to make custody and maintenance assets and the division between them of the proceeds of sale. orders subsequent to divorce, an order for the division of Spousal maintenance (s 77, LRA) matrimonial assets can only be made “when” a decree of divorce or The court is empowered to order a man to pay maintenance to his judicial separation is granted and not at a later date (s 76(1), LRA; wife or former wife during the course of any matrimonial proceed- Manokaram Subramaniam v Ranjid Kaur Nata Singh (2008) 6 CLJ 209). ings or when granting or subsequent to the grant of a decree of divorce or judicial separation. The court also has the corresponding power to order a woman to pay maintenance to her husband or 1.6 Are foreign divorces recognised in your jurisdiction? If former husband where he is incapacitated, wholly or partially, from so, what are the procedural requirements, if any? earning a livelihood by reason of mental or physical injury or ill health, and the court is satisfied that having regard to her means it If a marriage solemnised in Malaysia under the LRA is dissolved by is reasonable to so order. a court of competent jurisdiction outside Malaysia, either of the Child maintenance (s 93, LRA) parties may apply to the Registrar General of Marriages for the regis- The court may, at any time, order a man to pay maintenance for the tration of that foreign decree (s 107(3), LRA). benefit of his child. The court is also empowered to order a woman If a marriage not solemnised under the LRA is dissolved by a to pay or contribute towards the maintenance of her child where it court of competent jurisdiction outside Malaysia, either party may is satisfied that having regards to her means it is reasonable to so apply to the Malaysian court for an order to recognise that foreign order. decree by filing a petition of declaration. Other financial orders The court can also: 1.7 Does your jurisdiction allow separation or nullity (a) award damages against a co-respondent, on a petition for divorce where adultery has been alleged and proven (s 58, LRA); proceedings? (b) order security for maintenance (ss 79 and 94, LRA); (c) vary orders or agreements for maintenance (ss 83, 84, 96 and 97, Yes. Married couples who have a religious or conscientious LRA); objection to divorce may petition for judicial separation (s 64, LRA). (d) recover arrears of maintenance (ss 86 and 98, LRA); A person who is judicially separated cannot remarry. (e) make maintenance orders against a man to ensure the welfare of A couple may also annul their marriage if: a child who is not his child but who has been accepted by him (a) the marriage is void (s 69, LRA), namely if: as a member of his family (s 99, LRA); and (i) it was bigamous; (f) set aside and prevent dispositions intended to defeat claims to (ii) it was within the prohibited degrees of relationship; maintenance (s 102, LRA). (iii) the couple, or either of them, were underaged; (iv) the parties were not respectively male and female; 2.2 Do matrimonial regimes exist and do they need to be (b) the marriage is voidable (s 70, LRA), namely if: (i) it was not consummated; addressed by the court on divorce? Is there a default (ii) either party did not validly consent to it, or if he or she matrimonial regime? was capable of giving valid consent, was a mentally disordered person; or There are no matrimonial regimes in Malaysia. (iii) at the time of the marriage, the respondent was suffering from a communicable venereal disease, or was pregnant by 2.3 How does the court decide what financial orders to some person other than the petitioner. make? What factors are taken into account? 1.8 Can divorce proceedings be stayed if there are Division of matrimonial assets proceedings in another country? In determining the division of matrimonial assets, the court will have regard to (s 76(2), LRA): Divorce proceedings in Malaysia can be stayed in favour of proceed- (a) the extent of the contributions made by each party in money, ings in another country on the grounds of forum non conveniens. The property or work towards the acquisition of the assets or Malaysian court in hearing a stay application will consider whether payment of expenses for the benefit of the family; there is some other available forum in which the case may be more (b) the extent of the contributions made by the other party who did appropriately tried for the interests of all the parties and the ends of not acquire the assets to the welfare of the family by looking justice and whether it would be unjust to the plaintiff to confine him after the home or caring for the family; or her to remedies elsewhere (Spiliada Maritime Corp v Consulax Ltd (c) any debts owing by either party which were contracted for their (The Spiliada) (1987) AC 460; American Express Bank Ltd v Mohamed joint benefit; Tonfic Al-Ozier and another [1995] 1 MLJ 160). (d) the needs of any minor children of the marriage; and (e) the duration of the marriage,

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and subject to those considerations, shall incline towards equality (b) properties acquired during the marriage apart from the of division. matrimonial home; Spousal maintenance (c) cars, cash and jewellery; In determining the amount of spousal maintenance to be paid, the (d) shares in companies; court bases its assessment primarily on the means and needs of the (e) insurance policies, employment and retirement benefits; and parties, regardless of the proportion such maintenance bears to the (f) assets owned by one party before the marriage which have been income of the husband or the wife, but shall have regard to the substantially improved during the marriage by the other party or degree of responsibility which the court apportions to each party for by their joint efforts. the breakdown of the marriage (s 78, LRA). Factors that the courts have taken into account include the duration of the marriage, the 2.8 Do the courts treat foreign nationals differently on ages of the parties, whether there are any children of the marriage, divorce, if so, what are the rules on applicable law? Can the whether the husband had financially supported the wife during the marriage, his ability to pay and the potential earning capacity of the court make orders applying foreign law rather than the law of applicant. the jurisdiction? Child maintenance In assessing child maintenance, the court shall have regard to the Provided jurisdiction is found, foreign nationals are not treated any needs of the child and the means of the parents, taking into account differently. The Malaysian court will apply Malaysian law. the standard of living the child was accustomed to during the marriage. 2.9 How is the matrimonial home treated on divorce?

2.4 Is the position different between capital and The matrimonial home is treated as a matrimonial asset and will maintenance orders? If so, how? form part of the pool of matrimonial assets that may be subjected to division. Broadly speaking, capital orders or asset distribution orders are assessed based on the parties’ respective contributions towards the 2.10 Is the concept of “trusts” recognised in your acquisition of those (matrimonial) assets and towards the marriage, jurisdiction? If so, how? whereas maintenance orders are assessed based on the means and needs of the parties. Asset distribution orders can only be made by the court “when” a decree of divorce or judicial separation is granted Yes. If it can be proven that an asset is held by a nominee on trust and are final orders, whereas maintenance orders may be made for either party to the marriage, then that asset may be treated as a during the course of any matrimonial proceedings, when or matrimonial asset, subject always to the provisions of the LRA. subsequent to the grant of a decree of divorce or judicial separation and are inherently variable. There is no provision under the LRA 2.11 Can financial claims be made following a foreign for the court to make a capital or lump sum order in lieu of mainten- divorce in your jurisdiction? If so, what are the grounds? ance which is payable periodically.

Under the LRA, financial claims for maintenance may be sought 2.5 If a couple agrees on financial matters, do they need to subsequent to a divorce but the Malaysian court has no power to have a court order and attend court? make any orders for the division of matrimonial assets following a foreign divorce. Yes, if they want their agreement to be enforceable. Foreign orders pertaining to matrimonial assets in Malaysia may be enforced under common law by instituting a fresh suit in Malaysia 2.6 How long can spousal maintenance orders last and are under the original cause of action (Charles Priya Marie v Koshy Cherian [2010] 6 CLJ 693). As to the enforcement of foreign maintenance such orders commonplace? orders made in reciprocating countries, the provisions of the Maintenance Orders (Facilities for Enforcement) Act 1949 may be Unsecured spousal maintenance orders expire on the death of the invoked. For maintenance orders made in non-reciprocating coun- husband or wife, whichever is the earlier. Secured maintenance tries, these may be enforced under common law by instituting a fresh orders expire on the death of the spouse in whose favour the order action based on the foreign maintenance order. was made (s 81, LRA). The right of any divorced person to receive maintenance from his or her former spouse ceases upon his or her 2.12 What methods of dispute resolution are available to remarriage or living in adultery with any other person (s 82, LRA). resolve financial settlement on divorce? E.g. court, Spousal maintenance orders, in particular those in favour of a wife, are commonplace especially in cases where the wife has been mediation, arbitration? financially dependent on her husband, but where she is gainfully employed and able to support herself after divorce, the court is less Apart from court, financial settlements may be resolved via medi- inclined to award it. ation, collaborative law and negotiations between the parties or their respective solicitors. 2.7 Is the concept of matrimonial property recognised in your jurisdiction? 3 Marital Agreements

Yes, and they are subjected to division upon divorce. The courts 3.1 Are marital agreements (pre and post marriage) have held that matrimonial assets include: enforceable? Is the position the same if the agreement is a (a) the matrimonial home and everything put into it by either spouse to be used for the benefit of the family as a whole; foreign agreement?

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Marital agreements, foreign or local, are not legally binding in and station in life or by paying the cost thereof. A “child of the Malaysia. The Malaysian court may be persuaded to consider the marriage” under the LRA includes a child of one party to the agreement as evidence of how the parties wish to regulate their marriage accepted as one of the family by the other party and matrimonial and financial affairs when the marriage breaks down but “child” in this context includes an illegitimate child of either party any agreement between spouses in Malaysia must be subject to the to the marriage (s 2, LRA). A man who has accepted a child who is LRA and ultimately require the court’s approval before they may be not his child as a member of his family also has a duty to maintain enforceable. that child if the mother and father of that child fail to do so (s 99, LRA). 3.2 What are the procedural requirements for a marital Under the MWCMA, the court may order any person who neglects or refuses to maintain a legitimate child of his to make a agreement to be enforceable on divorce? monthly allowance for the maintenance of such child, in proportion to his means, as is reasonable. If the child is illegitimate, the court Please see the answer to question 3.1. may order him to make a reasonable monthly allowance (s 3, MWCMA). 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or 5.2 How is child maintenance calculated and is it are they limited to the election of the matrimonial property administered by the court or an agency? regime? Child maintenance is assessed based on the means and needs test Marital agreements can cover all types of financial claims but they (please see the answer to question 2.3) and administered by the court. must be approved by the court. There is no matrimonial property regime in Malaysia. 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? 4 Cohabitation and the Unmarried Family For example, can a child seek maintenance during university?

4.1 Do cohabitants, which do not have children, have Child custody and maintenance orders expire when the child attains financial claims if the couple separate? What are the grounds 18 years but where the child is under a physical or mental disability, or is pursuing further or higher education or training, it expires on to make a financial claim? the ceasing of that disability or completion of the further or higher education or training, whichever is later (s 95, LRA). Malaysia does not recognise cohabitation. Cohabitants therefore have no entitlement to financial claims under family law. If they 5.4 Can capital or property orders be made to or for the separate and have any claims against the other, they would need to benefit of a child? fall back on, e.g. the law of contract, land law or trust principles.

4.2 What financial orders can a cohabitant obtain? There are no provisions under the LRA for the making of capital or property orders to or for the benefit of a child. However, the court can order a person liable to pay child maintenance to secure the Please see the answer to question 4.1. whole or any part of it by vesting any property in trustees upon trust for the settlor. Child maintenance would then be paid by the trustees 4.3 Is there a formal partnership status for cohabitants (for out of the income from the property (s 94, LRA). example, civil partnerships, PACS)? 5.5 Can a child or adult make a financial claim directly No, there is not. against their parents?

4.4 Are same-sex couples permitted to marry or enter other Yes. The application can be made on the child’s behalf by, e.g. the formal relationships in your jurisdiction? child’s guardian, any person who has custody or care and control of the child, a welfare officer, the Official Administrator and any other person whose care a child is in and who has obtained leave to inter- No, Malaysia does not recognise same-sex marriages or relationships. vene (rule 57 of the Divorce and Matrimonial Proceedings Rules

1980 (DMPR)). 5 Child Maintenance 6 Children – Parental Responsibility and 5.1 What financial claims are available to parents on behalf Custody of children within or outside of marriage? 6.1 Explain what rights of custody both parents have in your A parent can apply for child maintenance under the LRA and/or the jurisdiction whether (a) married, or (b) unmarried? Married Women and Children (Maintenance) Act 1950 (MWCMA). Section 92 of the LRA provides that except where an agreement or order of court otherwise provides, it shall be the duty of a parent The Guardianship of Infants Act 1961 (GIA) accords both the to maintain or contribute to the maintenance of his or her children, father and the mother equal parental rights over their children (s 5, by providing them with accommodation, clothing, food and GIA). However, this does not mean that both parents must at all education as may be reasonable having regard to his or her means times be equally parenting the child. Whenever there is a dispute, the court can decide which parent should be given custody, care and

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control of a child, including access (Lai Meng v Toh Chew Lian [2012] There is a rebuttable presumption that it is for the good of a child 10 CLJ 479). The GIA applies to both legitimate and illegitimate below seven years to be with his or her mother but in deciding children (Sean O’Casey Patterson v Chan Hoong Poh and others [2011] 3 whether that presumption applies, the court shall have regard to the CLJ 722). undesirability of disturbing the life of a child by changes of custody Married couples (s 88(3), LRA). If the couple is married, either of them may seek an order for Where there are two or more children, the court is not bound to custody of a child of the marriage. place both or all in the custody of the same person but shall consider Unmarried couples the welfare of each independently (s 88(4), LRA). If the couple is unmarried, the mother of the illegitimate child will prima facie have the right of custody and when questions on custody 6.6 Without court orders, what can parents do unilaterally? or access arise the wishes of the mother will be taken into account For example, can they take a child abroad? but the welfare of the child is the first and paramount consideration (T v O [1993] 1 MLJ 168). Without court orders, both parents can move freely with any of their children and are entitled to make decisions on their behalf without 6.2 At what age are children considered adults by the court? the need to consult the other.

In Malaysia, a “minor” is someone who has not reached the “age of 6.7 Is there a presumption of an equal division of time majority”. Pursuant to the Age of Majority Act 1971, the age of majority is 18 years. This is, however, subject to other written law between separating or divorcing parents? fixing the age of majority. For instance, under the GIA, non-Muslim children shall be deemed to have attained their majority at age 21 No, there is not. The court will consider all factors and decide what years (s 2(2)(a)(ii), GIA). Under the LRA, a “minor” means arrangements are in the child’s best interests. someone who is under 21 years and who is not a widow or widower (s 2, LRA). Under the LRA and the Child Act 2001, a “child” means 6.8 Are unmarried parents treated in the same way as someone who is under the age of 18 years. 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)? Please see the answer to question 6.1.

Unless expressed to be for a shorter period or where such orders 6.9 Is a welfare report prepared by an independent have been rescinded, child custody and maintenance orders expire when the child attains 18 years. Please see the answer to question professional or is the decision taken by the Judge alone? If 5.3 for extension of children orders. so, does the child meet the Judge?

6.4 What orders can the court make in relation to children? When considering any question relating to child custody and mainten- Does the court automatically make orders in relation to child ance, the court shall, whenever practicable, take the advice of a person arrangements in the event of divorce? who is trained or experienced in child welfare but is not bound to follow the advice of this person (s 100, LRA). The judge may also interview the child. Ultimately, the decision rests with the judge. Under the LRA, the court can make orders for custody, care and control, access and maintenance. “Custody” means the right to 6.10 Is there separate representation for children in your make important decisions in relation to, e.g. the child’s upbringing, health, education and religion. “Care and control” denotes the day- jurisdiction and, if so, who would represent them, e.g. a to-day care of the child and “access” comprises contact lawyer? arrangements for the parent deprived of custody, care and control. Under the GIA, the court is empowered to appoint and remove If in any matrimonial proceedings it appears to the court that any a guardian over the person and property of a child. child ought to be separately represented, the court may (r 86, DMPR): Under the Courts of Judicature Act 1964, the court has (a) of its own motion, appoint the Official Administrator if he jurisdiction to appoint and control guardians of infants and generally consents; or over the person and property of infants. (b) on the application of any other proper person, appoint that Orders are made when sought but the court in divorce proceed- person to be guardian ad litem of the child with authority to take ings shall consider the arrangements pertaining to any children of part in the proceedings on the child’s behalf. the marriage.

6.11 Do any other adults have a say in relation to the 6.5 What factors does the court consider when making arrangements for the children? E.g. step-parents or orders in relation to children? grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to children? The paramount consideration is the child’s welfare and subject to this the court shall have regard to the wishes of the parents and the wishes of the child where he or she is of an age to express an The courts will take into account all relevant matters and may consider independent opinion (s 11, GIA; s 88(2), LRA). the evidence of other adults which might include the child’s relatives,

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if their evidence is adduced in court or if an application is made by On 29 January 2018, in the case of Indira Gandhi Mutho v Pengarah them, before it determines the arrangements for the children. Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145, the Federal Court, Malaysia’s apex court, held that where one party 7 Children – International Aspects to a civil (non-Muslim) marriage had converted to Islam, the civil courts continue to have jurisdiction to deal with the dissolution of that civil marriage and ancillary matters. This landmark decision 7.1 Can the custodial parent move to another state/country resolved the confusion pertaining to the jurisdiction of the civil without the other parent’s consent? courts in Malaysia which govern only non-Muslims vis-à-vis the Syariah (Sharia/Islamic) courts which govern Muslims in Malaysia, retracting from past judicial trends which had taken the position that Yes, unless the court order granting sole custodial rights to the matters touching Islamic law and practice are within the jurisdiction custodial parent prohibits it. of the Syariah courts to the exclusion of the civil courts. The

Federal Court, in nullifying the unilateral conversion to Islam of the 7.2 Can the custodial parent move to another part of the children of the marriage by the father who had converted, also held state/country without the other parent’s consent? that the consent of both parents must be obtained before the children could be converted. Please see the answer to question 7.1. On 15 December 2018, long awaited amendments to the LRA came into force. Some of the main amendments include: (a) the civil courts are now accorded with exclusive jurisdiction over 7.3 If the court is making a decision on relocation of a child the dissolution of a civil marriage and all matters incidental abroad, what factors are taken into account? thereto including granting a decree of divorce or other orders under the LRA, where one party has converted to Islam and that The welfare of the child must be the paramount consideration and such decree or orders made shall, notwithstanding any other if the applicant’s reasonable proposals for relocation is not incom- written law, be valid against the party to the marriage who had patible with the welfare of the child and would not have a converted to Islam; detrimental impact on the welfare of the child, an application to (b) a mother/adoptive mother of a child who has not attained the relocate may be granted (Teh Eng Kim v Yew Peng Siong [1977] 1 LNS age of 21, may now give written consent for the child to marry. 138). Prior to this, only the father may give consent where the child is legitimate and where the child is illegitimate or adopted, the 7.4 If the court is making a decision on a child moving to a mother/adoptive mother’s consent could only be given if the father/adoptive father is dead; different part of the state/country, what factors are taken into (c) either party or both parties to a marriage may now petition for account? divorce where one of them has converted to Islam. Before, only the non-converting spouse could petition; Please see the answer to question 7.3. (d) the court’s power to divide matrimonial assets under section 76 of the LRA is no longer confined to assets acquired by the 7.5 In practice, how rare is it for the custodial parent to be “joint” efforts of the parties but now extends to all assets acquired during the marriage. As at the date of writing, there allowed to relocate internationally/interstate? have yet to be any reported decisions applying the amended section 76; and It is not rare, provided the court is satisfied that the relocation is in (e) the duration of child maintenance orders with regard to a child the child’s best interests. who is pursuing higher education or training is now extended from age 18 until the child completes his or her higher education 7.6 How does your jurisdiction deal with abduction cases? or training. For example, is your jurisdiction a party to the Hague In 2019, collaborative law was introduced.

Convention? 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? Malaysia is not a party to the Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention). There is therefore no mechanism in place for the prompt return of children In my view, the following should be addressed: abducted to or from Malaysia. The Malaysian court has jurisdiction (a) stateless children in Malaysia who have been adopted by to deal with children and accord them protection for as long as they Malaysian parents, or one Malaysian parent, are not automatically are physically and lawfully present in the country. If there is a conferred Malaysian citizenship upon adoption. They therefore foreign custodial order, the Malaysian court will take that into remain stateless unless an application for citizenship is made to account but is not bound by it and is entitled to hear the merits the government of Malaysia who retains a discretion to grant or afresh and make its own decision applying Malaysian law, based on refuse it; what it considers is in the child’s best interests. (b) the law regulating surrogacy in Malaysia needs to be developed; (c) Malaysia has not ratified the Hague Convention; and 8 Overview (d) civil partnerships and same-sex relationships and marriages are not recognised.

8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years?

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Ezane Chong is a graduate of the University of Leeds, a Barrister-at-Law (England & Wales) and an Advocate & Solicitor of the High Court of Malaya. Before she joined Ariff Rozhan & Co in 2016 as its Head of Family and Private Clients, she was a partner at Skrine, one of Malaysia’s largest law firms, where she practised for 14 years. Ezane’s areas of practice include civil and commercial litigation with a focus on family law. She is a Fellow of the International Academy of Family Lawyers, has authored several articles on family law and given evidence as an expert on Malaysian Family law for the English courts. In 2018, Ezane was named by Benchmark Litigation Asia as a “Rising Star”, and a “Dispute Resolution Star” in 2019. Ezane is also a recipient of an International Client Choice Award for Litigation in Malaysia (2015).

Ariff Rozhan & Co Tel: +603 6411 4018 L-6-1, No.2, Jalan Solaris Email: [email protected] Solaris Mont’ Kiara URL: www.arc.partners 50480 Kuala Lumpur Malaysia

Ariff Rozhan & Co (ARC) is a firm established in 2015 focusing primarily on 2019) and Benchmark Litigation (2018 and 2019) as a Leading or, Highly dispute resolution. ARC’s partners were all former partners in two of Recommended Firm. In 2019, ARC won the Asian Legal Business Matrimonial Malaysia’s largest law firms. and Family Law Firm of the Year Award (Malaysia). Partners and lawyers in ARC have all been involved in a plethora of cases for www.arc.partners local and international clients, involving complex, novel and dynamic issues of law. Many of these cases have been reported in Malaysia and International Law Reports. These cases showcase the width and breadth of their experi- ence, as well as demonstrating the depth and strength of their expertise. ARC is also ranked and recommended by many legal publications such as The Legal 500 Asia Pacific (2017, 2018 and 2019), Asialaw Profiles (2017, 2018 and

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Malta Malta

Fenech & Fenech Advocates Robert Thake

1 Divorce The procedure and timescale for a divorce depends on a number of factors, mainly whether the spouses were previously legally separated or not and whether the divorce is contested or not. If the spouses 1.1 What are the grounds of jurisdiction for divorce are legally separated, and have been for four years, then the procedure consists of simply filing an application requesting divorce proceedings? For example, residence, nationality, domicile, together with an affidavit confirming that the grounds outlined at etc.? law have been satisfied. If the divorce is uncontested, judgment may be handed down as early as the first hearing. In order for a Court in Malta to have jurisdiction to hear a divorce suit in Malta, at least one of the spouses must have been domiciled 1.5 Can a divorce be finalised without resolving other in Malta on the date of the filing of the demand for divorce or at associated matters? For example, children and finances. least one of the spouses must have been ordinarily resident in Malta for a period of one year immediately preceding the filing of the demand for divorce. Since one of the grounds for divorce is the payment of maintenance, it is not possible for divorce to be finalised if, for instance, there are minor children who are legally entitled to receive maintenance. A 1.2 What are the grounds for a divorce? For example, is divorce may, however, be granted, prior to the liquidation and there a required period of separation, can the parties have an assignment of property held in common such that this latter exercise uncontested divorce? is tackled before a different Court through separate proceedings.

Under Maltese law there are three grounds which must be satisfied 1.6 Are foreign divorces recognised in your jurisdiction? If in order for divorce to be granted. Firstly, the spouses must have so, what are the procedural requirements, if any? lived apart for a period of, or periods that amount to, at least four years out of the immediately preceding five years, or at least four years have lapsed from the date of legal separation. Under Maltese Yes, provided that they are handed down by a competent Court and law, ‘living apart’ does not necessarily mean that the spouses must are not contrary to Maltese public policy or law. As a signatory to have lived at separate addresses; the Court will consider the intention the Brussels recast regulation, there is no formal requirement for a of the parties and give greater weight to this element than to the foreign divorce to be recognised provided that the country in which physical one. Secondly, all maintenance required to be paid must the judgment was handed down is also a signatory. have been paid, whether this is due to a spouse or child. Finally, there must be no reasonable prospect of reconciliation. In order for 1.7 Does your jurisdiction allow separation or nullity this latter requirement to be deemed satisfied by a Court it is proceedings? sufficient for one of the spouses to declare that there is no reason- able prospect of reconciliation. Yes. Both separation proceedings and nullity proceedings are

allowed in Malta. 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” 1.8 Can divorce proceedings be stayed if there are divorce, i.e. without any court involvement? proceedings in another country?

The parties to a divorce may avoid attending Court altogether if they Yes. A Maltese Court will cease to hear a suit in the event that a prepare an affidavit in lieu of their testimony. A judge does, however, Court in another jurisdiction was seised before it. have the discretion to order the parties to attend in order to have questions put to them in connection with their affidavit. In Malta, 2 Finances on Divorce the concept of a ‘private’ divorce is, as yet, unheard of; however, it is possible to enter into a separation contract. 2.1 What financial orders can the court make on divorce? 1.4 What is the procedure and timescale for a divorce? On separation or divorce, a Court will make orders concerning matrimonial property and maintenance due to spouses and children.

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2.2 Do matrimonial regimes exist and do they need to be Yes. Since the default matrimonial regime in Malta is the community of acquests, all property acquired by the spouses or either of them addressed by the court on divorce? Is there a default during marriage is jointly owned by the spouses. If a spouse receives matrimonial regime? a donation or inheritance, however, the property so donated or inherited belongs exclusively to the recipient spouse. In Malta, there are three matrimonial regimes. The default regime which all spouses bear, unless or until specifically excluded prior to 2.8 Do the courts treat foreign nationals differently on or after marriage, is the community of acquests. All property divorce, if so, what are the rules on applicable law? Can the acquired by spouses during a marriage regulated by the community of acquests regime, with the exception of donations received by the court make orders applying foreign law rather than the law of spouses separately or property (including movable property by oper- the jurisdiction? ation of the law) acquired through inheritance, is common. The other two regimes are the separation of estates and the community Maltese law treats all individuals equally, notwithstanding nationality of residue under separate administration (CORSA). Spouses who or civil status. Yes, it is possible for Courts to make orders applying opt to adopt the separation of estates regime may acquire and foreign law rather than the law of the jurisdiction. administer property independently from one another and exclusively own any assets acquired and any debts incurred. CORSA is a 2.9 How is the matrimonial home treated on divorce? complex regime which is a mixture of the community of acquests regime and the separation of estates regime; throughout the marriage the parties can acquire and administer separately; however, Upon separation or divorce, the matrimonial home may be sold to on termination of the community, the residue is shared between the third parties, assigned to one of the spouses in exchange for assets spouses such that each spouse enjoys half of the accumulation. worth an equivalent amount to the half undivided share of the home, or passed in possession for a definite or indefinite period of 2.3 How does the court decide what financial orders to time to one of the spouses.

make? What factors are taken into account? 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? Court orders are generally the result of a request by a spouse. However, in cases concerning children, or in cases in which children are concerned, a Court in Malta is not limited by the requests made Yes, trusts are recognised under Maltese law and regulated by the by the spouses or either of them and are able to make orders in the Trusts and Trustees Act, (Chapter 331, the Laws of Malta). best interest of the child, even in the total absence of a request by a spouse. This also applies in cases when the parties to the suit are 2.11 Can financial claims be made following a foreign not married. divorce in your jurisdiction? If so, what are the grounds?

2.4 Is the position different between capital and Following a separation or divorce, it is still technically possible to maintenance orders? If so, how? make a claim to alter a maintenance order in the event of super- vening changes. Capital or lump sum payments are possible in order to achieve a clean break from a spouse. Although they are not specifically 2.12 What methods of dispute resolution are available to prohibited at law, they are customarily precluded in case of children resolve financial settlement on divorce? E.g. court, in order for the parent not to sever ties with the child. mediation, arbitration?

2.5 If a couple agrees on financial matters, do they need to In Malta, mediation is the legally acceptable method of dispute resol- have a court order and attend court? ution available to resolve financial settlements. If negotiations fail, the available forum is the Civil Court (Family Section) or the First Any agreement reached by the spouses requires the authorisation of Hall of the Civil Court, depending on the action. the Court but is entered into by virtue of an agreement which must be published by a notary. 3 Marital Agreements

2.6 How long can spousal maintenance orders last and are 3.1 Are marital agreements (pre and post marriage) such orders commonplace? enforceable? Is the position the same if the agreement is a Spousal maintenance is increasingly rare in Malta due to the increase foreign agreement? in women joining the workforce. If a spouse works, even part-time, it is highly unlikely that the spouse will receive maintenance from the Yes, pre- and post-nuptial agreements are enforceable in Malta. If other spouse. However, if spousal maintenance is ordered by a a foreign couple, whose marriage is regulated by a marital agreement, Court, without specific limitation, this is technically due indefinitely, establish themselves in Malta, they will need to register the said and may even be payable from the maintenance debtor’s pension in marital agreement in Malta in order for it to be enforceable. In the the future. event that a pre- or post-nuptial agreement is not registered in Malta, any property acquired by a foreign couple after their arrival in Malta 2.7 Is the concept of matrimonial property recognised in will be regulated by the community of acquests regime.

your jurisdiction?

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3.2 What are the procedural requirements for a marital 5.2 How is child maintenance calculated and is it agreement to be enforceable on divorce? administered by the court or an agency?

There are no procedural requirements for enforcing a marital agree- Under Maltese law there is no fixed amount of maintenance or ment on divorce; the marital agreement would need to be submitted equation intended to calculated maintenance. Child maintenance is in evidence during the course of litigation. quantified depending on needs of the child and the means of the person bound to supply it. Maintenance is administered by order of 3.3 Can marital agreements cover a spouse’s financial the Court and paid by the spouse so compelled by means of the said order. claims on divorce, e.g. for maintenance or compensation, or

are they limited to the election of the matrimonial property 5.3 For how long is a parent required to pay child regime? maintenance or provide financial support for their children? For example, can a child seek maintenance during university? It is not possible for parties to a marital agreement to attempt to vary any of their marital obligations such as maintenance, nor is it poss- ible to decide upon an uneven distribution of assets or debts Maintenance is due by a parent to their child until the age of 18, the acquired throughout the marriage. It is only possible for parties to local age of majority. However, in the event that the child pursues change their matrimonial regime. full-time education or learning, the obligation to supply maintenance increases until the age of 23 or until such time as the child completes 4 Cohabitation and the Unmarried Family their education or learning, whichever is the earliest. In the event that a child suffers from a disability which limits his ability to provide for himself, the child in question may continue to receive mainten- 4.1 Do cohabitants, which do not have children, have ance even after the age of 23 until such time as the child is able to financial claims if the couple separate? What are the grounds provide for himself.

to make a financial claim? 5.4 Can capital or property orders be made to or for the benefit of a child? Yes. Cohabitants are permitted by law to make reciprocal claims for maintenance from one another in certain circumstances as regulated in the Cohabitation Act (Chapter 571, the Laws of Malta). This Lump sum payments, whether as capital or property, in lieu of includes maintenance, periodic or as a lump sum, social assistance, monthly maintenance payments are not excluded expressly by children’s allowance and pensions. Maltese law but are customarily discouraged.

4.2 What financial orders can a cohabitant obtain? 5.5 Can a child or adult make a financial claim directly against their parents? Cohabitants may request the division of assets and liabilities as well as the award of financial aid. Once a child reaches the age of 18 it is possible for the child to make a claim for maintenance directly against the maintenance debtor 4.3 Is there a formal partnership status for cohabitants (for parent. Until such time as a child has acquired the status of a major, example, civil partnerships, PACS)? the child is to be represented in all proceedings by his/her parents.

6 Children – Parental Responsibility and Cohabitants in Malta receive a formal status of cohabitant either automatically, after two years of cohabitation (de facto cohabitation), Custody or through a unilateral declaration filed by either of the cohabitants, or through a cohabitation agreement. The extent of the recognition, 6.1 Explain what rights of custody both parents have in your and consequently the rights afforded by each of these varies. jurisdiction whether (a) married, or (b) unmarried? 4.4 Are same-sex couples permitted to marry or enter other Maltese law does not make any distinction between married and formal relationships in your jurisdiction? unmarried persons when it comes to rights of custody.

Yes. Same-sex couples in Malta are permitted to enter into civil 6.2 At what age are children considered adults by the court? unions and get married.

5 Child Maintenance A child is considered to be an adult at the age of 18.

6.3 What is the duration of children orders (up to the age of 5.1 What financial claims are available to parents on behalf 16 or 18 or otherwise)? of children within or outside of marriage? Child orders concerning matters of custody and access last until the Parents generally, whether married or otherwise, are able to request age of 18. However, if a child is in full-time education after attaining maintenance (alimony) for their child from the other parent through the age of 18, the order remains valid until the child attains the age an application made before the Civil Court (Family Section). of 23 or until the point when the child completes his or her studies, whichever is the earlier. As explained above, in the event that a child

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suffers from a physical or mental impairment, maintenance may be Children in Malta may be represented by a child advocate appointed due indefinitely. by the Court. A child advocate may also be appointed at mediation stage, prior to the commencement of the suit proper. 6.4 What orders can the court make in relation to children? Does the court automatically make orders in relation to child 6.11 Do any other adults have a say in relation to the arrangements in the event of divorce? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution Orders concerning children in Malta mainly include custody and are available to resolve disputes relating to children? access orders and maintenance orders. A Court is not limited to make orders upon request. If the best interests of the child so The Maltese Civil Code envisages the possibility of an individual require, a Court may make orders intended to serve the best interests acting in loco parentis. A parent’s obligation to look after, maintain, of the child including alternative care orders by virtue of which a instruct and educate the children bind a person acting in loco parentis child is placed in care. with regard to another person’s child, by reason of the marriage of such person to a parent of that child, where the other parent of that 6.5 What factors does the court consider when making child, shall have, at any time before or during the marriage, died or orders in relation to children? was declared as an absentee. In Malta, mediation is the legally acceptable method of dispute resolution available to resolve disputes relating to children. The main factor considered by a Court when making orders in relation to children is the ‘best interests of the child’ principle, that is, that which is most advantageous to the child as opposed to its 7 Children – International Aspects parents. 7.1 Can the custodial parent move to another state/country 6.6 Without court orders, what can parents do unilaterally? without the other parent’s consent? For example, can they take a child abroad? No. However, the parent who wishes to change a minor child’s Unless a parent has been stripped of parental authority, any decision residence may petition the Court requesting permission to leave concerning a child must be taken by both parents. In the event that notwithstanding the objection, and if the Court deems the move to consent is not forthcoming, the other parent will need to request a be in the child’s best interests, the Court may authorise the move. court order. A parent who enjoys full custody may be prevented from going abroad with the child if the intended travel is not in the 7.2 Can the custodial parent move to another part of the child’s best interest. state/country without the other parent’s consent?

6.7 Is there a presumption of an equal division of time On account of its small size, this point is unlikely to be disputed. between separating or divorcing parents? 7.3 If the court is making a decision on relocation of a child No. Though it is technically possible, the equal splitting of time abroad, what factors are taken into account? between parents is often considered to run counter to the best inter- ests of the child since it is generally believed that a child requires stability through the designation of a primary residence. The main factor taken into account by a Court when determining a request for relocation is the ‘best interests of the child’ principle. Generally, the main factors taken into account would be the child’s 6.8 Are unmarried parents treated in the same way as right to retain contact with both parents and family members, and married parents when the court makes orders on separation the child’s education. The needs of the parent wishing to relocate or divorce? are considered secondary to those of the child.

In Malta, persons are treated equally irrespective of their civil status. 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into 6.9 Is a welfare report prepared by an independent account? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? If a parent desires to reside on another island within the archipelago this will most likely be allowed provided that the parent shows that The judge may, at any point in the proceedings (including appeal), any visitation rights of the other parent will not be affected. decide that he/she wishes to speak with the child. However, more often than not, a judge will appoint an expert to perform this task. 7.5 In practice, how rare is it for the custodial parent to be The experts at the judge’s disposal include social workers, child allowed to relocate internationally/interstate? psychologists and child advocates.

Courts in Malta rarely authorise the relocation of a minor child 6.10 Is there separate representation for children in your particularly if the other parent objects to the travel. jurisdiction and, if so, who would represent them, e.g. a lawyer?

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7.6 How does your jurisdiction deal with abduction cases? most notable being the Cohabitation Act (Chapter 571, Laws of Malta), the amendments to the Civil Code (Chapter 16, Laws of For example, is your jurisdiction a party to the Hague Malta) concerning domestic violence and the Gender-Based Convention? Violence and Domestic Violence Act (Chapter 581, Laws of Malta).

Malta is a signatory to the Hague Convention. In the case of an 8.2 What are some of the areas of family law which you think abduction, the left-behind parent must contact the Central Authority should be looked into in your jurisdiction? in Malta who will then begin proceedings to return the child.

8 Overview Although the Cohabitation Act has been a major contribution to Maltese law, the act in question requires a number of amendments to make its application more practical, particularly insofar as de facto 8.1 In your view, what are the significant developments in cohabitation and the unilateral declaration are concerned. Moreover, family law in your jurisdiction in the last two years? and possibly more importantly, the institute of the child advocate requires a legislative overhaul to regulate the extent and functions of the child advocate and to ensure that the advocates occupying the Over the course of the last couple of years there have been a position in question are qualified for the position and receive the number of significant developments in family law in Malta. The continuous training required.

Robert Thake qualified as a lawyer with a Doctor of Laws Degree from the University of Malta after successfully defending his dissertation ‘A comparative analysis and examination of Act XIV of 2011 on divorce’. He proceeded to obtain a Master’s Degree from the University of Malta and once again successfully defended his dissertation entitled ‘Protecting the financially vulnerable spouse in matrimonial proceedings’. Robert’s practice focuses on family law, particularly on the financial aspect of matrimonial breakdown and the often-complicated interplay between companies and the family. Robert is an experienced litigator in the field, accustomed to handling complex matrimonial issues. Apart from dealing with cases of separation and divorce, Robert has also successfully dealt with other equally sensitive issues such as care and custody disputes, international child abduction, paternity suits, and domestic violence. Robert is an examiner and casual visiting lecturer within the Civil Law Department of the University of Malta where he lectures Law of Persons and Family Law and is also the Academic Officer of the Chamber of Advocates, Malta.

Fenech & Fenech Advocates Tel +356 79414645 198, Old Bakery Street Email: [email protected] Valletta VLT1455 URL: www.fenechlaw.com Malta

Established in 1891, Fenech & Fenech Advocates is one of the longest practicing in the Courts of Malta and in arbitration on an ongoing basis. The standing law firms in Malta. It is a widely multi-disciplinary law firm, which firm is recognised as Malta’s leading shipping law firm, with four separate and balances a forward-looking, dynamic task force based on tradition and distinct departments dedicated to shipping – marine litigation, ship regis- excellence. tration, ship finance, and yachting. Fenech & Fenech offers precise, value-driven legal solutions and prides itself The current managing partner of the firm is Dr Ann Fenech. with being a law firm that achieves results through a practical application of www.fenechlaw.com the law. The firm’s diverse areas of expertise includes corporate and commercial law, M&A, financial services, tax, banking, trusts and foundations, intellectual property, maritime law, aviation law, IT & TMT law, e-commerce, virtual ledger technology and blockchain, employment law and other related areas. The firm also has experienced teams of litigators in civil, commercial and family law

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Northern Ireland Ireland Northern

Millar McCall Wylie LLP, Solicitors Clare Lenaghan

1 Divorce 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? 1.1 What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, domicile, Even in an uncontested divorce, the Applicant (or “Petitioner”) must etc.? attend Court for the Decree Nisi (the first Decree). The Respondent does not have to attend. The Decree Absolute (the second and final The primary legislation is the Matrimonial Causes (Northern Ireland) Decree) is obtained by post. It is not possible to have a divorce Order 1978 (the MC(NI)O 1978). The law is similar to that in without Court involvement. England and Wales but there are some significant differences. Jurisdiction in Northern Ireland is governed by European Council 1.4 What is the procedure and timescale for a divorce? Regulation Number 2201/2203 (Brussels II bis), which is incorpor- ated into the Order. The Courts have jurisdiction to hear divorce proceedings where one of the following is established: The application is by lodging a Petition with a County Court or the ■ both spouses are habitually resident in Northern Ireland; High Court, which is served on the Respondent. If the Respondent ■ both spouses were last habitually resident in Northern Ireland is not defending, the Petitioner attends the hearing of the first and one of them still resides there; Decree, the Decree Nisi. If the Respondent is defending, the ■ the Respondent is habitually resident in Northern Ireland; Respondent lodges an Answer to the Petition and a Cross-Petition. ■ the Applicant is habitually resident in Northern Ireland and has Both parties then attend the contested hearing of the Decree Nisi. resided there for at least one year immediately before the Contested divorce hearings are rare. application was made; Six weeks and one day after the granting of the Decree Nisi, the ■ the Applicant is domiciled and habitually resident in Northern Petitioner can apply to the Court for the Decree Absolute (unless the Ireland and has resided there for at least six months immediately Court has fixed a shorter period by request at the Decree Nisi). before the application was made; and An uncontested divorce takes approximately six months from ■ both spouses are domiciled in Northern Ireland. issue of the Petition to hearing of the Decree Nisi. In a contested If none of the above apply, the Courts can still have jurisdiction divorce, the timescale is around 12 months or longer. if no other EU State has jurisdiction under Brussels II bis and either party is domiciled in Northern Ireland. 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an In all cases, the Court must be satisfied with the care arrangements uncontested divorce? for the children or be satisfied that the arrangements are the best that can be made in the circumstances. Where the Court is not so satisfied, it may adjourn the hearing of the Decree Nisi for further Divorce is only available in Northern Ireland after two years of information or to decide whether to make an Order relating to the marriage. children or, in some cases, may direct that the Decree Absolute is not There is only one ground for divorce, which is the irretrievable to be granted until the Court orders otherwise. breakdown of the marriage. This is established by proving one or The divorce can be finalised without resolving financial issues. more of the following facts: However, in practice, financial matters are usually resolved before the (a) the Respondent’s adultery; Decree Absolute is applied for. The granting of the Decree Absolute (b) the Respondent’s unreasonable behaviour; restricts pension and some other rights and a party may lose out. (c) the Respondent’s desertion of the Applicant for at least two years; (d) the parties’ separation for at least two years, with the 1.6 Are foreign divorces recognised in your jurisdiction? If Respondent’s consent to the divorce; and so, what are the procedural requirements, if any? (e) the parties’ separation for at least five years. There is provision allowing for attempted reconciliation (for Yes. periods not exceeding six months in total). Most divorces are uncon- For EU Divorce: Brussels II bis provides that a divorce granted in tested. one EU Member State will be recognised in other EU Member State.

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For British Islands Divorce: Under the Family Law Act 1986, divorces ■ Orders for the transfer and settlement of property. granted in a Court in the UK, the Isle of Man and the Channel ■ Orders varying ante-nuptial and post-nuptial settlements, Islands are automatically recognised throughout the UK. including trusts. For Non EU or “Overseas” Divorce: The Family Law Act 1986 makes ■ Pension sharing Orders and other Orders in respect of pensions. provision for foreign divorces to be recognised in Northern Ireland. The Court may also make directions to give effect to the Orders The requirements for recognition are different depending on it makes (including the sale of property). whether the divorced was obtained “by judicial or other proceed- ings” (i.e. the involvement of a public body) or “other than by 2.2 Do matrimonial regimes exist and do they need to be proceedings” (i.e. without the involvement of a public body). addressed by the court on divorce? Is there a default An application for recognition must be made to the High Court in Northern Ireland (under both Brussels II bis and the Family Law matrimonial regime? Act 1986) and any objection to the proposed recognition would also be dealt with in that Court. No. Northern Ireland does not have matrimonial regimes and there- fore there is no default matrimonial regime. 1.7 Does your jurisdiction allow separation or nullity proceedings? 2.3 How does the court decide what financial orders to make? What factors are taken into account? Yes. Both are under the MC(NI)O 1978. A judicial separation may be applied for on the same five facts as Article 27 of the MC (NI) O 1978 sets out the matters to which the for divorce and at any time after the date of marriage. A divorce Court must have regard. These are: may be applied for subsequently. ■ All the circumstances of the case, first consideration being given Nullity proceedings may be brought seeking to have the marriage to the welfare of any minor child. declared void (so flawed as to be declared non-existent from the ■ The income, earning capacity, property and other financial outset) at any time after the date of marriage. resources which each of the parties has or is likely to have in the Nullity proceedings may be brought to have the marriage declared foreseeable future including any increase in earning capacity voidable (existing only until the granting of the Decree Absolute annul- which it would be reasonable to expect a party to take steps to ling the marriage) but must be brought within three years of the date acquire. of marriage otherwise leave must be sought. Nullity proceedings on ■ The financial needs, obligations and responsibilities which each the ground that an interim gender recognition certificate has been of the parties to the marriage has or is likely to have in the fore- issued to either party must be brought within six months from the seeable future. date of issue of the certificate. ■ The standard of living enjoyed by the family before the break- To establish that a marriage is void, one of six specified grounds down. must be proved; for example, that one of the parties was under 16 ■ The age of each party and the duration of the marriage. years old or that one of the parties was already married. ■ The physical or mental disability of either party. To establish that a marriage is voidable, one of eight specified ■ The contributions which each of the parties has made or is likely grounds must be proved; for example, that the marriage has not in the foreseeable future to make to the welfare of the family been consummated owing to the incapacity of either party or that including any contribution by looking after the home or caring one party did not validly consent to the marriage. for the family. Apart from the time limits, there are some other bars to obtaining ■ The conduct of each of the parties, if that conduct is such that a decree on the grounds that the marriage is voidable in this legis- it would in the opinion of the Court be inequitable to disregard lation. it. The procedure for both judicial separation and nullity is similar to ■ The value to each of the parties of any benefit which, by reason that for divorce. of the divorce, that party will lose the chance of acquiring. These factors give the Court a wide discretion. The overriding 1.8 Can divorce proceedings be stayed if there are principle is fairness. In applying the Article 27 matters, the Court proceedings in another country? will always have regard to the principles and developments in case law.

Yes. Under Brussels II bis, the Northern Ireland Court must stay the 2.4 Is the position different between capital and proceedings where proceedings were issued first in another EU Member State (lis pendens). maintenance orders? If so, how? The Court also has power to grant obligatory stays or discretionary stays under Schedule 1 of the MC (NI) O 1978. The Article 27 matters above are considered for both. However, need is the overriding consideration in spousal maintenance claims. 2 Finances on Divorce 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? 2.1 What financial orders can the court make on divorce?

No. There is no obligation to have a Court Order, but it is advisable The Court has far-reaching powers which are set out in the to have the agreed terms reduced to a Matrimonial Agreement and MC(NI)O 1978, in particular, Articles 24 to 26, and which include have that Agreement made into a consent Order. making the following financial provision Orders: The Court can make the Agreement an Order on the hearing of ■ Maintenance pending suit (interim spousal maintenance). the Decree Nisi or at any time thereafter. The parties do not have to ■ Periodical payments (spousal maintenance thereafter). attend Court; although, if the application is made on the hearing of ■ Lump sum(s). the Nisi, the Petitioner will be present. ■ Periodical payments for the benefit of a child of the family.

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2.6 How long can spousal maintenance orders last and are The foreign divorce must be one that is recognised as valid in Northern Ireland (as outlined at question 2.6 above). Remarriage such orders commonplace? prevents a claim by that party. Leave of the Court is required to bring a claim. These can last for such term as the Court decides in each particular The Court has jurisdiction if one of the grounds set out in the case, including for the joint lives of the parties (that is, until the death Order is met. of one of them). Before making an Order for financial provision, the Court must The Courts in Northern Ireland favour a financial clean break. consider whether in all the circumstances of the case it would be Where there is a spousal maintenance entitlement, a clean break can appropriate for such an Order to be made by a Court in Northern be achieved by capitalisation of maintenance (giving the spouse a Ireland and, if not satisfied that it would be appropriate, the Court lump sum or a greater share of property in lieu). must dismiss the application. The Court, in deciding whether it Where a clean break is not possible, spousal maintenance Orders would be appropriate, must in particular have regard to eight factors for two, three or five years are not unusual, depending on the length listed in the Order such as the connection of the parties to Northern of the marriage. Joint lives Orders are virtually non-existent. Ireland, the availability of financial relief outside Northern Ireland, the length of time which has elapsed since the divorce. 2.7 Is the concept of matrimonial property recognised in your jurisdiction? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, Yes. The Court considers all financial resources of both parties in mediation, arbitration? decision-making. The concepts of matrimonial property (property acquired during the marriage) and non-matrimonial property are Outside of the Court process, the parties can avail of accredited recognised in Northern Ireland. The principle of equality applies to mediation and arbitration services with trained lawyers or collab- matrimonial property unless there are reasons justifying departure. orative law services or enter into a Matrimonial Agreement. Once With non-matrimonial property, the party who brought it to the in the Court system, there is a Financial Dispute Resolution hearing marriage will often (but not always) retain a larger share of it or all where the Court tries to help the parties to negotiate a settlement of it. which is made into a consent Order and avoids a full hearing.

2.8 Do the courts treat foreign nationals differently on 3 Marital Agreements divorce, if so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of 3.1 Are marital agreements (pre and post marriage) the jurisdiction? enforceable? Is the position the same if the agreement is a foreign agreement? No. The laws of Northern Ireland apply to everyone.

2.9 How is the matrimonial home treated on divorce? Marital agreements are not automatically enforceable in Northern Ireland. While a matrimonial agreement cannot oust the jurisdiction of the Court to make financial provision on divorce, the Courts have This will normally be treated as matrimonial property whether in become more inclined to uphold marital agreements, in particular, joint or sole names and whatever its origins. The principle of where the agreement has been “freely entered into with a full equality therefore applies unless there are reasons justifying appreciation of its implications unless, in the circumstances departure. Departure is justified in favour of the primary carer of prevailing, it would not be fair to hold the parties to their agreement” the children (usually to 60% but sometimes slightly more). The (Radmacher v Granatino (2010) UKSC42). In this regard, Northern Court may make an Order postponing the sale of the home for the Ireland has been similar to England and Wales. There are now benefit of the children of the family. limited grounds on which a party may be able to set aside an agree- ment. In the case of a pre-marital agreement, it is wise to ensure 2.10 Is the concept of “trusts” recognised in your that it is entered into at least a number of months before the jurisdiction? If so, how? marriage. In the case of all marital agreements, duress or undue influence, inadequate disclosure of finances, lack of legal advice or an unforeseen or overlooked change of circumstances may reduce Yes. Northern Ireland recognises trusts and they regularly appear in the weight to be attached to the agreement or negate it completely. divorce proceedings. The Court in divorce proceedings has power The overriding principle is fairness and provision for children of the to vary, reduce or extinguish a party’s interest in a trust insofar as it family remains paramount. In the case of post-marital agreements, consists of a nuptial settlement under Article 26 of the MC (NI) O parties are usually advised to consider arrangements in the light of 1978. The Court can also take account of any income or benefit to the Article 27 matters relied upon by the Courts in making financial a party from a trust as a “financial resource” of that party. The provision Orders as it is less likely that a Court will overturn it. Court can also join trustees to financial proceedings on divorce. However, the Court will not substitute its own views for that of the

parties as long as the agreement is fair. 2.11 Can financial claims be made following a foreign With foreign agreements, the Court will look at the circumstances divorce in your jurisdiction? If so, what are the grounds? of each case and the parties common intentions. The Court will apply Northern Ireland law and consider the agreement in the light Yes. Either Party can make such a claim in Northern Ireland under of Northern Ireland principles. the Matrimonial and Family Proceedings (Northern Ireland) Order 1989.

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3.2 What are the procedural requirements for a marital 5.2 How is child maintenance calculated and is it agreement to be enforceable on divorce? administered by the court or an agency?

There are none as they are not automatically enforceable as at ques- Child maintenance is calculated either by the CMED or by the tion 3.1 above. Court. Where the CMED has jurisdiction to deal with an application and 3.3 Can marital agreements cover a spouse’s financial an application is made to the CMED, the CMED will make the calculation and thereafter the parties can enter into a voluntary agree- claims on divorce, e.g. for maintenance or compensation, or ment for payment as between themselves or require the CMED to are they limited to the election of the matrimonial property administer the payments. There is an online calculator to assist parents regime? in the calculation of child maintenance. This is based on a percentage of the paying parent’s gross weekly income taking into account a Marital agreements can cover financial claims of both a capital and number of factors. There is a maximum gross weekly income for an income nature. As we do not have matrimonial property regimes CMED calculations. The CMED can enforce payment through the in our jurisdiction, the latter does not apply. Courts. The CMED has no jurisdiction where a parent is abroad. The Court has jurisdiction to make child maintenance Orders by 4 Cohabitation and the Unmarried Family agreement of the parties in a consent Order. The Court also has jurisdiction to make child maintenance Orders under Schedule 1 of the Children (Northern Ireland) Order 1995 and can make “top up” 4.1 Do cohabitants, which do not have children, have awards where a parent’s gross weekly income exceeds that of the financial claims if the couple separate? What are the grounds CMED calculations. The Court does not administer the Orders but a party can be brought back for breach of the Order and for an to make a financial claim? Order for payment of arrears.

Cohabitants who are not married or in a civil partnership, and who 5.3 For how long is a parent required to pay child do not have children, have very limited financial claims if the couple maintenance or provide financial support for their children? separate. They can seek an Order for sale and division of the proceeds of property in which they have a legal interest under the For example, can a child seek maintenance during university? Partition Act 1868 or issue proceedings for an equitable share in property. A parent is normally required to pay until a child is 18 years old or finishes secondary education, whichever is the sooner. However, the 4.2 What financial orders can a cohabitant obtain? Court can specify a later date usually when the child has completed a first degree at university.

Apart from above, there is little that a cohabitant who is not married or in a civil partnership can claim for himself or herself. 5.4 Can capital or property orders be made to or for the If there are children, a cohabitant can seek Orders for the benefit benefit of a child? of the child of the family under Schedule 1 of the Children (Northern Ireland) Order 1995. Yes, in the limited circumstances set out in Schedule 1 of the Children (Northern Ireland) Order 1995. 4.3 Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? 5.5 Can a child or adult make a financial claim directly against their parents? Same-sex couples can enter into civil partnerships under the Civil Partnership Act 2004. Yes, in specific circumstances such as a child over 16 years or an adult of 18 years or over in full-time education. 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? 6 Children – Parental Responsibility and Custody Same-sex couples are not permitted to marry in Northern Ireland.

6.1 Explain what rights of custody both parents have in your 5 Child Maintenance jurisdiction whether (a) married, or (b) unmarried?

5.1 What financial claims are available to parents on behalf The Children (Northern Ireland) Order 1995 is the primary legis- of children within or outside of marriage? lation. The birth mother (whether married or not) and a married father Parents can claim child maintenance through an agency called the will automatically have parental responsibility for their child. Child Maintenance Enforcement Division and, in some circum- Divorce does not change this. Parental responsibility means all the stances, in Court. Parents can claim periodical payments, lump sum rights, duties, powers, responsibilities and authority which by law a orders and property transfer or property settlement Orders on parent has in relation to the child and his property. behalf of their children under Schedule 1 of the Children (Northern An unmarried father does not automatically have parental Ireland) Order 1995. responsibility unless: (a) his name is on the child’s birth certificate; (b) he acquires it by Court Order on an application by the father; or

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(c) the father and mother provide for the father to have parental No. But it is generally considered to be in the child’s best interests responsibility by a parental responsibility agreement. to spend time with both parents and there has been a greater move There are specific provisions for a parent to acquire parental towards joint residence Orders. responsibility where there has been fertility treatment. 6.8 Are unmarried parents treated in the same way as 6.2 At what age are children considered adults by the court? married parents when the court makes orders on separation or divorce? Children are considered adults at 18 years old.

Parents who have parental responsibility will be treated the same 6.3 What is the duration of children orders (up to the age of whether unmarried or divorcing. 16 or 18 or otherwise)? 6.9 Is a welfare report prepared by an independent Up to the age of 16 but exceptionally until the age of 18. professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? 6.4 What orders can the court make in relation to children? Does the court automatically make orders in relation to child A Court may order a welfare report from a Court-appointed arrangements in the event of divorce? children’s officer (social worker) who usually meets the parents and the child, reports back to the Court either orally or in writing and The Court can make: makes a recommendation. The child can meet the Judge but this (a) a residence Order settling where the child is to live; rarely happens. (b) a contact Order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay or otherwise have 6.10 Is there separate representation for children in your contact with another person; jurisdiction and, if so, who would represent them, e.g. a (c) a prohibited steps Order that no step which could be taken by a lawyer? parent in meeting his/her parental responsibility for a child can be taken without the consent of the Court (e.g. prohibiting travel); and Children are not usually separately represented in private law (d) a specific issue Order determining a specific question that has proceedings between parents. However, in certain circumstances, a arisen, or which may arise, in connection with any aspect of child will be represented by a solicitor or by a Guardian ad Litem parental responsibility for a child (e.g. school, religion). (specially trained social worker). The Court does not automatically make an Order in the event of divorce. The principle of no Order applies in Northern Ireland, 6.11 Do any other adults have a say in relation to the which means that the Court will only make an Order where arrangements for the children? E.g. step-parents or necessary. grandparents or siblings. What methods of dispute resolution

are available to resolve disputes relating to children? 6.5 What factors does the court consider when making orders in relation to children? Yes. There are circumstances set out in the Order allowing other adults to apply for Article 8 Orders. For example, relatives may The factors are set out in Article 3 of the Children (Northern apply for an Order in respect of a child but they require the leave of Ireland) Order 1995. This states that the child’s welfare is the para- the Court first. A person, other than a parent, with whom the child mount consideration and that the Court must have regard to a list has lived for a period of three years, may also apply. of factors known as “the welfare checklist” including the wishes and Mediation is available and encouraged by the Courts. Other feelings of the child (in the light of his age and understanding) and assistance is available, such as family therapy. the child’s physical, emotional and educational needs. The Court also has regard to the general principle of no delay in 7 Children – International Aspects that any delay in determining the question is likely to prejudice the welfare of the child. 7.1 Can the custodial parent move to another state/country 6.6 Without court orders, what can parents do unilaterally? without the other parent’s consent? For example, can they take a child abroad? No. Under the Child Abduction (Northern Ireland) Order 1985, it Parents should make significant decisions in relation to the child’s is a criminal offence in Northern Ireland for any person connected upbringing together and, where they cannot agree, either party can with a child, to take or send the child out of the United Kingdom apply to the Court. A child cannot be taken abroad without the without the consent of any other person who has parental consent of the other parent if that other parent has parental responsibility for the child. responsibility. Under the Children (Northern Ireland) Order 1995, where a residence Order is in force with respect to a child, no person can remove the child from the UK without the written consent of every 6.7 Is there a presumption of an equal division of time person who has parental responsibility or the leave of the Court. between separating or divorcing parents? There is one exception to this which is that a person in whose favour a residence Order was made may remove the child from the UK for a period of up to 28 days without obtaining consent or leave. However, failure or refusal to return the child once this period has

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expired will constitute a wrongful retention of the child under the Northern Ireland is a party to the Hague Convention which is Hague Convention and Brussels II bis. incorporated into domestic law by the Child Abduction and Custody A parent could possibly also be charged with the common law Act 1985. The Hague Convention applies as between Northern offence of kidnapping. Ireland and a non-EU country which is a signatory to the Convention. It is based on a system of Central Authorities. Each 7.2 Can the custodial parent move to another part of the country appoints a Central Authority which is the administrative centre for all applications under the Convention. state/country without the other parent’s consent? Abduction cases are divided into incoming cases (where a child is abducted from a Convention Country into Northern Ireland) and Yes. However, all parties with parental responsibility should have a outgoing cases (where a child is abducted from Northern Ireland to say in significant decisions regarding the children’s upbringing. If another Convention Country). agreement to the relocation is not reached, the other parent may For incoming cases, a parent may make an application for the return bring an Article 8 application to regulate the relocation such as a of the child to the Central Authority of the country in which they specific issue application asking the Court for a contact Order or are living. That Central Authority will forward the application to the increased contact Order. In making any Orders, the welfare of the Central Authority in Northern Ireland. If a parent prefers, the child is paramount and the Court will have regard to the welfare parent may apply directly to the Central Authority for Northern checklist outlined above. The Court will consider all of the circum- Ireland. The Central Authority will assess the application and, if it stances of each case including the moving parent’s motive in making meets the requirements, it will refer to the case to an experienced the application and whether the relationship between the child and solicitor who will make an application to the Court on behalf of the the left-behind parent will be maintained. parent. All incoming cases are dealt with in the High Court. The Courts seek to deal with these cases within six weeks and adjourn- 7.3 If the court is making a decision on relocation of a child ments are limited to a maximum of 21 days. Applicants are normally abroad, what factors are taken into account? required to attend the hearing. Legal aid is available for a parent making the application without any assessment of means. In the matter of Q (A Child) 2014 No: 085113, Mr Justice O’Hara pointed In relocation applications, known as applications for leave to remove out how this can unfairly disadvantage the other parent who may a child from the jurisdiction, again the welfare principle is the para- have an arguable defence on the merits to the application but may mount consideration. The Court will consider the welfare checklist not qualify for legal aid on the means. as well as the particular circumstances of each individual case. The For outgoing cases, the parent contacts the Central Authority and approach of the Courts in Northern Ireland to relocation was makes an application for return. The application and any supporting examined and set out in two decisions of the Northern Ireland documentation is sent by the Authority to the Central Authority of Court of Appeal in RE L (2013) NICA 45 and SH v RD (2013) the Hague Convention country to which the child has been NICA 44 and was recently fully considered in WA v KA (2019) abducted. The case will then be dealt with in that country according NIFam 2. In the latter case, the Court considered the English auth- to its internal procedures. orities including the decision of Payne v Payne (2001) Fam 473. The Brussels II bis governs a case where a child has been abducted to Court determined that the welfare principle is paramount which or from an EU country which is a signatory to Brussels II bis. In should be guided by the welfare checklist which the Court went general terms, these applications are processed in the same way as through in some detail in the case. The Court stated that it was applications under the Hague Convention and are also dealt with by taking an “overall holistic view of welfare” on the particular facts of the Central Authority. There are, however, some substantive the case. differences in the procedures. For countries not falling into either of the above categories, the 7.4 If the court is making a decision on a child moving to a European Convention will apply as between Northern Ireland and different part of the state/country, what factors are taken into other countries which are a signatory to the European Convention. account? Again, the Central Authority deals with these cases and the procedure is similar to that outlined above. For Brussels II bis cases and European Convention cases, legal aid This is outlined in question 7.2 above. is available as with Hague Convention cases. For countries which are not a signatory to any of the above, the 7.5 In practice, how rare is it for the custodial parent to be High Court in Northern Ireland may prevent the removal of a child allowed to relocate internationally/interstate? from Northern Ireland by making the child a ward of Court upon the application of a parent to the Court. If the whereabouts of a child are unknown, an application may It depends on the particular circumstances of each case. If there is be made to the Court for a “seek and find” Order or for an order shared residence, or the remaining parent has extensive contact, it seeking disclosure of information which might assist in finding the can be very difficult. But such Orders are not rare and cases are child. These orders are provided for by the Family Law Act 1986. decided on an individual basis. For a recent case where leave was

granted for a parent to relocate to America, see WA v KA (2019) NIFam 2. 8 Overview It is much easier for a parent to be allowed to relocate within the jurisdiction of Northern Ireland, particularly given that Northern 8.1 In your view, what are the significant developments in Ireland is such a small jurisdiction. family law in your jurisdiction in the last two years? 7.6 How does your jurisdiction deal with abduction cases? Developments have been stifled in Northern Ireland by the fact that For example, is your jurisdiction a party to the Hague we have not had a government at Stormont since 2017. The result Convention? is that reforms such as those proposed by the Review Group on

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Family Justice in its report in September 2017 (the Gillen Report) There needs to be more research into the impact of personal cannot be implemented. The uncertainty over Brexit casts a further litigants on the Court process and the effect on opposing parties. shadow over family law. Northern Ireland does not have marriage or civil partnership equality and, in this regard, Northern Ireland is out of step with the 8.2 What are some of the areas of family law which you think rest of the UK.

should be looked into in your jurisdiction?

The law of divorce requires reform. The Gillen Review suggested changes to reduce delay such as allowing applications to be made online and permitting the Decree Nisi to be granted administratively in undefended divorces.

Clare Lenaghan joined Millar McCall Wylie in January 2018 to become Head of the Family and Matrimonial Department, already having more than 25 years’ experience as a highly respected family law barrister at the Bar of Northern Ireland. She has extensive knowledge and experience in representing clients in complex ancillary relief cases and in negotiating settlements. She is regarded as an expert on the law relating to pensions and has advised in cases involving the division of high-value public and private pensions and complex retirement investments. Clare has represented high-net-worth individuals in her local market, both as a barrister and as a solicitor, and brings a wealth of advocacy and negotiation skills to the firm. At present, she is pursuing a point of interpretation of the law in this jurisdiction that may allow same-sex divorce in Northern Ireland. Clare also works from the firm’s second Belfast office: Imperial House, 4–10 Donegall Square East, Belfast, BT1 5HD.

Millar McCall Wylie LLP, Solicitors Tel: +44 28 9020 0050 Eastleigh House Email: [email protected] 396 Upper Newtownards Road URL: www.mmwlegal.com Belfast BT4 3EY Northern Ireland

Millar McCall Wylie, Solicitors, is a full-service law firm with two offices in including those which might otherwise have attracted much publicity, Belfast, Northern Ireland. Recently named The Legal 500 Northern Ireland Law preserving the confidentiality and privacy of the high-profile parties involved. Firm of the Year, its personal approach has ensured it is the chosen practice The firm is also a member of Reunite and has received instructions from the for many leading national and international private clients and business. It Central Authority in complex Hague Convention and Brussels II bis cases. has an established Family and Matrimonial team with a strong reputation and www.mmwlegal.com significant expertise across the full spectrum of family and matrimonial matters, grounded on its renowned commercial reputation and offering a rounded service for clients. Led by experienced former family and matrimonial barrister, Clare Lenaghan, and longstanding litigation partner, Caroline Prunty, the firm offers a unique value to clients in terms of generating costs efficiencies and providing a comprehensive service from start to finish. The firm has acted in many confidential high-net-value matrimonial cases,

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Russia Russia

Julie Losson

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

1 Divorce to end the marriage is enough for the judge. No specific separation period is required. Russian law does not envisage the possibility of filing a joint 1.1 What are the grounds of jurisdiction for divorce divorce petition with the court (only with the Civil Acts Registration Office on the conditions mentioned above). In cases where both proceedings? For example, residence, nationality, domicile, spouses want an uncontested divorce in the presence of minor etc.? children, one of them must file for divorce and the other must agree afterwards to get a divorce order on the previously and mutually Courts in the Russian Federation have jurisdiction in divorce cases agreed conditions. if: ■ one of the spouses is a Russian national, irrespective of the 1.3 In the case of an uncontested divorce, do the parties domicile/place of residence of both spouses/of one of them; need to attend court and is it possible to have a “private” ■ one of the spouses resides in Russia; or ■ the respondent has property in his/her own name on the divorce, i.e. without any court involvement? territory of the Russian Federation. The divorce of a Russian national who married a foreign or state- Under Russian law, Russian or foreign nationals have the right to less person is exclusively within the jurisdiction of the Russian courts handle their divorce in court either in person or through a if both spouses reside in Russia. representative. Although judges respect the parties’ personal For financial disputes, please see question 2.11. involvement in court proceedings, they cannot require them to Regarding the criteria of residence, it must be noted that there is attend court in person if they are represented. no concept of “domicile” or “habitual residence” in Russian law. In the case of an uncontested divorce in front of the Civil Acts The place of residence is where a person permanently or primarily Registration Office, at least one of the spouses must attend the resides as an owner, tenant or on another legal basis. But also, even procedure. if a Russian national relocates abroad, as long as he/she maintains It is possible to have a divorce pronounced by the administration his/her official “registration” in Russia (as everybody does), he/she without minor children at the time of the divorce. will be considered as a Russian resident and on that basis can be sued in Russian courts. 1.4 What is the procedure and timescale for a divorce?

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

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as a rule, substantially less than in the Anglo-American system, and ■ the competing jurisdiction has a treaty on mutual recognition of the Civil Procedure Code is not sympathetic to delaying tactics. court orders in family matters with Russia (like the 1996 Hague Convention on parental rights) or applies the principle of inter- 1.5 Can a divorce be finalised without resolving other national comity (reciprocity or courtesy) involving the mutual recognition of judicial acts. associated matters? For example, children and finances. If one of the spouses proves that the foreign court order is not enforceable in Russia, the Russian court will continue to resolve the A Russian divorce can be finalised separately from the resolution of divorce and two procedures will be carried out simultaneously. matters on finance or children. If one of the spouses files separate claims dealing with finances 2 Finances on Divorce or children, they will be dealt with the divorce issue. However, in the absence of such claims (independently of the consent of both parents), the judge does not raise those questions by himself and 2.1 What financial orders can the court make on divorce? they can be resolved separately (before or after the divorce proceeding). During the divorce proceedings, in cases where one or both spouses

raise(s) a special claim, the court may examine the questions of: 1.6 Are foreign divorces recognised in your jurisdiction? If ■ separation of assets (property and debts, taking into account so, what are the procedural requirements, if any? that financial settlements can only take place during the marriage or up to three years after its termination); A foreign divorce does not need to be legally registered or judicially ■ child support (see the answers to section 5); and recognised in Russia to produce its effects. Divorce orders granted ■ spousal maintenance (noticing that it can be allocated only in by foreign courts, and administrations are considered as valid if very specific situations – see question 2.6). contested by neither spouse. There is no procedural requirement for a foreign divorce to be 2.2 Do matrimonial regimes exist and do they need to be recognised in Russia, except where it needs to be enforced. addressed by the court on divorce? Is there a default matrimonial regime? 1.7 Does your jurisdiction allow separation or nullity proceedings? Matrimonial regimes do exist under Russian law, and the court in charge of the divorce has to deal with the question of separation of Under Russian law, a valid marriage is a union of a man and a assets only if one of the spouses raises a special application for woman, both of whom should be at least 18 years of age, and who liquidation or financial relief. voluntarily commit themselves to starting a family. The Russian default matrimonial regime is a regime of community The legal validity of a marriage entered into on the territory of property. the Russian Federation is determined by the national laws of the Property acquired by the spouses with their joint funds during the spouses at the time of entering into the marriage. marriage, regardless of which of the spouses’ names it was registered If Russian law is applicable, a Russian court may declare a under (except for gifts or inheritances), is owned jointly by both marriage void on one of the following grounds: spouses and is divided upon divorce, annulment, or death. It also ■ if either spouse was not of a (16 years in comprises their income, such as remuneration as an employee, exceptional cases); dividends, social security and pension benefits. ■ if either spouse was already married at the date of the 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 marriage; during the marriage. If it is proved that the property was received ■ where spouses are close relatives in the line directly ascending or by gift or inheritance or acquired prior to the marriage or by one of descending; the spouses during marriage but with his/her own funds, it is not ■ if the marriage was entered into involuntarily or is fictitious subject to division. (without intent to create a family, which factually means under Spouses can decide to enter into a pre-nuptial or a post-nuptial 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. 2.3 How does the court decide what financial orders to Russian law does not provide any special procedure in the case of make? What factors are taken into account? “legal separation”.

The court decides according to the default regime rules (50/50) or 1.8 Can divorce proceedings be stayed if there are to 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 between the same parties, with the same subject matters and children. grounds, the Russian court may stay or terminate the divorce Regarding properties located outside Russia, usually, Russian proceedings. courts do not even take them into consideration in the liquidation But this applies only in the event that the foreign court order may of assets as it is complicated for the judges to acquire any relevant be recognised and enforced in Russia, which is possible in two information on those properties (see question 2.10 on trusts). situations: ■ the order does not require any enforcement (paternity or divorce 2.4 Is the position different between capital and rulings); and/or maintenance orders? If so, how?

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Russian judges do tend to render maintenance orders, but in Russian courts have jurisdiction in financial court proceedings, principle, there is no difference between capital and maintenance where at least one of the spouses is a foreign national, and the orders, except in the way in which they will be enforced. defendant is resident in Russia or has property on its territory. Russian courts do not decide on real estate properties located 2.5 If a couple agrees on financial matters, do they need to outside Russia. Russian courts can make orders applying foreign law. Financial have a court order and attend court? rights and obligations of the spouses are governed by the law of the country where they have a common place of residence. If they do All questions dealing with the separation of assets can be dealt with not have one, Russian courts apply the law of the country where directly by the spouses through a notary agreement and without any they last had a common place of residence. If neither applies, court decision (see question 2.12 on mediation). Russia is a civil law spousal rights and obligations are governed by Russian law. jurisdiction with official notaries competent to split and allocate real If the spouses do not have a common nationality or place of estate properties through deeds registered at the land and property residence, they may choose the law that will be applicable to their registry. financial relations and maintenance obligations by means of a pre- If the court has to deal with such a matter, the spouses can attend nuptial or post-nuptial contract. They may also choose the the court personally or through a representative. appropriate forum to deal with any future dispute arising from their contract. 2.6 How long can spousal maintenance orders last and are such orders commonplace? 2.9 How is the matrimonial home treated on divorce?

Spousal maintenance orders are quite rare as the grounds according There is no particular rule or treatment concerning the matrimonial to which a spouse or a former spouse is entitled to them are very home. limited, despite the general provision stipulating that spouses must support each other financially. The grounds are: 2.10 Is the concept of “trusts” recognised in your ■ the spouse or former spouse is disabled (the disability must jurisdiction? If so, how? occur during the marriage or within one year of its termination); ■ the spouse or former spouse has reached pension age (or will reach pension age within five years of the divorce) and has The concept of “trusts” is generally not recognised in Russia. Even insufficient means to meet the costs of living; if trusts are often used by well-to-do Russians as a wealth manage- ■ the spouse has the care of the common child who presents ment and succession instrument, a trust is not recognised as an disability; independent entity. Therefore, general rules for tax residency apply ■ the spouse is pregnant; and directly to trustees to establish their tax liabilities (if a trustee is an ■ the spouse has the care of the common child who is under three individual residing in Russia, his/her income subject to personal years old. income tax includes income from the trust asset). For the first two grounds, maintenance can be ordered for life- At present, just the concept of “fiduciary management” time, for the third ground, maintenance lasts until the child reaches (“Doveritelnoe Upravlenie”) exists in Russian law (introduced in 1993). the age of majority, and for the two final grounds, maintenance However, it does not imply a transfer of ownership for the entrusted supposedly lasts until the child is three years old. property as opposed to the English trust. Spousal maintenance is not aimed at keeping the same living Further, despite the fact that assets owned by third parties (in trust standards for former spouses and can be refused in consideration of or owned by legal entities) are excluded from the marital community the spouse’s misconduct or the marriage’s duration. Amounts property, the Russian Family Code has “anti-avoidance provisions” allocated for spousal support are therefore not large. If a Russian that allow a spouse to request the tracing of marital assets dissipated judge must give a decision on this matter, one cannot expect to by another spouse and possibly held by third parties. Russian courts receive comfortable life support based on the logic of have already considered claims against trust assets based on these “compensation” or “punitive damages”. provisions. Eventually, new controlled foreign company (CFC) rules were introduced in 2014 and expressly recognise certain trusts as “foreign 2.7 Is the concept of matrimonial property recognised in non-corporate controlled structures” for income tax payments. your jurisdiction? Control is a key criterion to define whether an entity is CFC. It is defined very broadly as “the ability to exert a determining influence” The concept of matrimonial property is recognised in Russia (see and decisions will be made by Russian courts. question 2.2). Also, the Common Reporting Standard (CRS), developed by the The Family Code recognises a contractual regime of matrimonial OECD, is a globally co-ordinated approach to the disclosure of property which allows spouses to agree contractually property rights income earned by individuals and organisations outside their country and obligations during the marriage or after its dissolution. of tax residence. Under this standard, jurisdictions obtain financial information from their financial institutions and exchange that 2.8 Do the courts treat foreign nationals differently on information with other jurisdictions on an annual basis. Russia is part of the jurisdictions taking commitments from 2018. divorce, if so, what are the rules on applicable law? Can the Although CFC and CRS rules are mainly tax-driven, disclosure of court make orders applying foreign law rather than the law of information regarding trusts and other structures would mean that the jurisdiction? this information will become more accessible in divorce cases.

Under Russian law, foreign individuals enjoy the same rights to sue 2.11 Can financial claims be made following a foreign and be sued in Russian courts as Russian individuals and companies. divorce in your jurisdiction? If so, what are the grounds?

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As mentioned in questions 2.1 and 2.6, claims for separation of court, or if it puts one spouse in “an extremely unfavourable assets, child support or spousal maintenance can be made in Russia position”. following a foreign divorce as long as Russian courts have Foreign marital agreements are recognised with difficulty by jurisdiction to hear the case and those questions were not resolved Russian courts, especially if the spouses had a common place of by the foreign judge of a reciprocating jurisdiction or the foreign residence in Russia when entering into the marital agreement and decision cannot be recognised by Russian courts (see question 1.8). decided to sign a contract under a foreign law. When one spouse is a foreigner, Russian courts always have jurisdiction on financial disputes if the defendant resides in Russia 3.2 What are the procedural requirements for a marital or has property on its territory. For spousal or child support matters, agreement to be enforceable on divorce? Russian courts can also be seized on the basis that the claimant resides in Russia. In particular, Russian courts have exclusive jurisdiction in relation Please see question 3.1. A Russian marital contract must be signed to real estate properties located on its territory. Moreover, questions by both spouses before a notary. There is no need for the contract regarding the children can be reviewed at any time if a new element to be witnessed and no requirement for independent legal advice. occurs in the family situation. However, it should not “put one spouse in an extremely unfavour- able situation”.

2.12 What methods of dispute resolution are available to 3.3 Can marital agreements cover a spouse’s financial resolve financial settlement on divorce? E.g. court, claims on divorce, e.g. for maintenance or compensation, or mediation, arbitration? are they limited to the election of the matrimonial property Financial matters can be resolved on a voluntary basis at any time regime? prior to the court decision, even if proceedings are already pending. Any agreement has to be signed by both spouses (or ex-spouses) As long as they deal with financial issues between the spouses, before a notary or a mediator (it has the force and effects of a Russian marital contracts can contain provisions on the liquidation contract) and, if the parties so wish, it can be further homologated of assets and maintenance obligations in the case of separation or by the court. divorce. The first Russian act to govern non-court-based processes, in particular in family law, is the Federal Act on Alternative Procedures of 4 Cohabitation and the Unmarried Family Dispute Resolution with the Participation of a Mediator (Mediation Act). The main principles of the Russian mediation procedure are: volun- tarism of both parties; equality of rights; confidentiality; 4.1 Do cohabitants, which do not have children, have cooperation; impartiality; and independence of the mediator. financial claims if the couple separate? What are the grounds There is no legal requirement to attempt mediation before intro- to make a financial claim? ducing judicial proceedings. However, at any stage of court 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 medi- man and a woman. There is no special legal regime for other forms ation agreement, neither of them can initiate court proceedings for of partnership or relationship. the 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 3 Marital Agreements acquisition or 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. 3.1 Are marital agreements (pre and post marriage) If the asset is just put in the name of one partner, the other partner enforceable? Is the position the same if the agreement is a does not acquire any property or equitable rights in this asset.

foreign agreement? 4.2 What financial orders can a cohabitant 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. notary (there is no need for the contract to be witnessed, and there is no obligation of full disclosure or independent legal advice) and 4.3 Is there a formal partnership status for cohabitants (for determining the spouses’ financial rights and obligations. example, civil partnerships, PACS)? It may not regulate any other matters apart from those dealing with financial issues between the spouses (see question 3.3). There is no formal partnership status for cohabitants and civil Therefore, inheritance matters and issues relating to children partnerships are not legally recognised. (including child support or their shares in property) cannot be dealt with. On the questions of applicable law and forum selection clause, 4.4 Are same-sex couples permitted to marry or enter other see question 2.8. formal relationships in your jurisdiction? A marital agreement can be declared void by a Russian court (the limitation period for claim being one year) in the case of fraud, Homosexuals are not permitted to marry under Russian law. coercion, etc. or if it restricts the legal capacity of one spouse, or the Russian law does not recognise same-sex couples and does not legal right for maintenance of a disabled spouse. It may also be offer any special regimes for people in same-sex relationships. declared void if it contains any waiver of the right to challenge it in

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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 in your jurisdiction whether (a) married, or (b) unmarried? Regardless of the parents’ marriage, the parent with whom the child lives has the right to request, from the other parent, child support As a presumption of equal parental responsibility, both parents have under Russian law. Please see question 2.1. the same rights and duties with respect to their children, regardless Parental rights and responsibilities are determined by the law of of whether the parents are married or not. the country of the parent’s common place of residence. If there is no such a place of residence, the law of the child’s nationality 6.2 At what age are children considered adults by the court? 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). Children are considered adults by the court at the age of 18.

5.2 How is child maintenance calculated and is it 6.3 What is the duration of children orders (up to the age of administered by the court or an agency? 16 or 18 or otherwise)? In the absence of an amicable agreement between the parents on the payment of alimony for their children, the amount is determined by Children orders generally last until the child reaches the age of 18 the court. The minimum amount of child support is set by law at years old. the rate of: ■ One-quarter of a parent’s income for one child. 6.4 What orders can the court make in relation to children? ■ One-third of the parent’s income for two children. Does the court automatically make orders in relation to child ■ One-half of the parent’s income for three or more children. arrangements in the event of divorce? By agreement, the parents can set the amount at a higher rate or 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 The court can make orders on the following matters: child support in a lump sum (for example, if the debtor does not ■ the residence of the child with one of the parents; have any salary in Russia or has a fluctuant income). ■ 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; ■ the studies or any serious medical issue; maintenance or provide financial support for their children? ■ the child’s support; and For example, can a child seek maintenance during university? ■ the limitation of parental rights.

Under Russian law, maintenance obligations end when the child 6.5 What factors does the court consider when making reaches the age of 18. orders in relation to children? If the child is unable to work (due to mental illness), alimony may 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 5.4 Can capital or property orders be made to or for the attachment of the child to brothers, sisters and other family benefit of a child? members, the possibility and capacity to provide proper conditions for the education and development of the child (for example, the Capital or property payments for child support can be only agreed type of professional activities and the parents’ financial and family between the parents, not ordered by a court. situation, etc.), the child’s timetable and also, potentially, the moral capacities of each parent. 5.5 Can a child or adult make a financial claim directly Until the child is 10 years old or capable of expressing his/her wishes, primary care is usually granted to the mother, unless it is against their parents? proved that she cannot accomplish her duties. The father will generally be granted two days every fortnight to spend with the child, Under Russian law, a child cannot make a financial claim directly and a few weeks during the school holidays. against his/her parents. One of the parents, the legal guardian (if General guidelines are offered in the Decree of the Plenum of the appointed), the tutorship authorities or the prosecutor can act on Superior Court of the Russian Federation of 27 May 1998 n°10 behalf of the child. However, an adult can make a claim directly about the application by the courts of the law in conflict resolution against his/her parents. on children’s education.

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6.6 Without court orders, what can parents do unilaterally? 7 Children – International Aspects For example, can they take a child abroad?

7.1 Can the custodial parent move to another state/country Without a court order, parents can sign written agreements before a notary to settle all the issues regarding a child’s custody and contact without the other parent’s consent? rights, support, right to move abroad, etc. On the question of relocation, see question 7.1. Under Russian law, the other parent’s consent to remove a child from Russia is not required (within the limits of the provisions newly 6.7 Is there a presumption of an equal division of time adopted following the accession to Russia to the 1980 Hague Convention – see question 7.6). Such consent is usually required for between separating or divorcing parents? long-term visa purposes and the parent, wishing to relocate with the child, is not granted this consent. Following this, a ban and the Under Russian law, there is no presumption of an equal division of child’s name can be placed on a customs control list at the request time between the parents in the case of separation or divorce. The of a parent, and a relocation claim must be filed by the other parent legal equality of the parental “rights and duties” does not imply the in order to procure a court order authorising the child to be right to spend an equal amount of time with the child. removed. Nevertheless, alternative residence is possible, but in practice, the judge fixes the child’s residence with the mother (except in special 7.2 Can the custodial parent move to another part of the cases) and the father is granted access and accommodation. state/country without the other parent’s consent? 6.8 Are unmarried parents treated in the same way as Yes, the custodial parent can move to another part of the country married parents when the court makes orders on separation without the other parent’s consent unless otherwise provided by a or divorce? notarised parental agreement or a court order.

Under Russian law, unmarried parents are treated in the same way as 7.3 If the court is making a decision on relocation of a child married parents when the court makes orders on separation or abroad, what factors are taken into account? divorce.

Apart from the general rules on children’s rights and international 6.9 Is a welfare report prepared by an independent treaties (such as the United Nations International Convention on the Rights professional or is the decision taken by the Judge alone? If of a Child ), there are no legal criteria to guide the Russian court in so, does the child meet the Judge? making a decision on relocation. Recurrent criteria that come out from case law are: A welfare report is always prepared by the tutorship organ and the ■ Physical conditions to raise, educate and support the child. court takes its decision based on that report. If the child can express ■ Conditions for the child’s development. his/her opinion, the tutorship organ will discuss with him/her in an ■ The child is already registered and actually living with the informal way during its investigation at the child’s place of residence. mother. Where a child is over the age of 10 years old, he/she is summoned ■ Young age of the child requiring maternal presence. and interrogated by the judge. ■ Necessary “routine” for a young child. The court cannot take a decision affecting the child’s interests ■ No contribution to the child’s life. without having received the report from the tutorship authority. ■ State housing: safety and comfort. However, the court may disagree with the report or may ignore the ■ Psychological expertise. child’s opinion (if it is contrary to his/her interests). ■ Previous imprisonment. ■ The child’s desire to live with one of the parents. Courts have to meet the needs and interests of the moving parent 6.10 Is there separate representation for children in your (usually the main custodian) on the one hand, and the need of the jurisdiction and, if so, who would represent them, e.g. a parent remaining in Russia to maintain quality contact with their lawyer? child on the other.

Separation representation does not exist under Russian law. 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into 6.11 Do any other adults have a say in relation to the account? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution The previous conditions of the family living, a professional oppor- are available to resolve disputes relating to children? tunity, the financial support of the child, the stability, the child’s opinion if over the age of 10.

Yes, other adults may have a say in relation to the arrangements for the children but there is no legal statute for it. It is upon the judge’s 7.5 In practice, how rare is it for the custodial parent to be consideration. allowed to relocate internationally/interstate?

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As soon as all conditions are given to the court that the child will be been separated) because it took the authorities three years to reunite sufficiently cared for in the removal country and that the other the boy with his mother. parent was not paying enough attention to the child, Russian courts Conversely, the first British/Russian 1996 Convention case was will permit international relocation. settled in November 2014, in which the Russian courts ordered the return of five- and seven-year-old boys to their habitual residence in 7.6 How does your jurisdiction deal with abduction cases? England after they were taken on holiday to Russia by their Russian For example, is your jurisdiction a party to the Hague father, who then failed to return with them (Neustadt v Neustadt (2013) MCC). Convention? On 4 August 2016, the Russian Supreme Court rendered for the first time a decision under the 1980 Hague Convention. It refused to Russia is a party to the 1980 Hague Convention on the Civil Aspects of order the return of a three-year-old girl to Finland despite the first International Child Abduction (which came into force on 1 October instance court decision which accepted it initially (Ushakov v Kulikova 2011) and the 1996 Hague Convention on Parental Responsibility and (2016)). Protection of Children (which came into force on 1 June 2013). From 2017, a number of Russian court decisions definitively The Central authority for both Conventions is the Department ordered the return of children from Russia to another Member State. for children’s rights protection state policy of the Ministry of This is still insignificant compared to the number of claims for the Education and Science of the Russian Federation. return of a child/children filed each year to the Russian Central Russia’s accession to the 1980 Hague Convention has already been Authority. accepted by 62 countries. Although in Russia children can be taken abroad by one parent without written permission from the other (see 8 Overview question 7.1), according to the 1980 Hague Convention one can talk about international parental abduction if: ■ the child is under 16 years old; 8.1 In your view, what are the significant developments in ■ the child resides in Russia; and family law in your jurisdiction in the last two years? ■ the child is removed abroad or is being detained there without the permission of his/her legal guardian. In Russia, the major evolution in international family law is due to Eight district courts throughout Russia were granted jurisdiction the more patriotic approach in the majority of cases implying a in Hague matters, including the power to grant injunction orders foreign element. prohibiting the defaulting parent to change the child’s place of

residence. Despite the principle of uniformity of judicial practice, Russian 8.2 What are some of the areas of family law which you think court decisions do not have the nature and power of precedent and should be looked into in your jurisdiction? neither case can be viewed as binding on courts. It will therefore take years for the Russian courts to develop a uniform approach in The two main issues in Russian law which should be considered very the return of children from outside Russia and in the recognition of seriously concern, firstly, the notification of a procedure pending foreign family court decisions. before a Russian judge to a defendant living outside Russia (too In 2011, the European Court of Human Rights decreed that many decisions are rendered without any respect to the 1965 Hague Russia had breached a mother’s human rights under Article 8 (which Convention to which the Russian Federation is party) and, secondly, includes a right for a parent to have measures taken by national auth- the lack of detailed and precise rules on the liquidation of assets orities to reunite them with their children from whom they have when there is no pre-nuptial or post-nuptial agreement.

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Julie Losson, Qualified Attorney – Paris Bar. Partner and co-founder of the French law firm “Villard Cornec & Partners”. Registered on the list of foreign lawyers of the Ministry of Justice of the Russian Federation. Legal Advisor for the French Consulate in Moscow. Medal of Merit from the Russian Federal Chamber of Lawyers for the protection of rights and freedoms of citizens (2015). Member of the International Academy of Family Lawyers. A member of the Paris Bar for almost 10 years, Julie Losson co-founded the French law firm “Villard Cornec & Partners”, and since 2012, has managed its Moscow office under the name “OOO Interjurist”. She is experienced in general international family law, especially with Russian citizens. She defends cases involving financial disputes pertaining to divorce settlements and inheritance issues (pre-nuptial agreements, removal and jurisdiction disputes, child and spousal support, child abduction, registration and enforcement of foreign court decisions, etc.). Languages: French; Russian; and English.

Villard Cornec & Partners Tel: +7 965 298 49 51 Street Vozdvizhenka 10 Email: [email protected] Moscow, 125009 URL: www.interjurist-avocats.ru Russia

Anton Zharov, Lawyer, member of the Bar Association of Moscow and Head of “Attorney Zharov’s Team”. Anton Zharov has been practising law in Russian courts since 2000, specialising exclusively in family and juvenile law. As a family law expert, he took part in drafting the Custody and Trusteeship Law, as well as amendments to the Family Code of the Russian Federation and state decrees on child adoption and custody. He also contributed to the development of the training programme for prospective Russian adopters. Since 2006, Mr. Zharov has been lecturing on legal aspects at the oldest Russian School for Adopters (part of the “Family” Charity Fund). As of 2013, he heads “Attorney Zharov’s Team”, the only Russian law firm that specialises solely on family and children rights protection, including trans- national divorce disputes and foreign adoption cases. He also keeps a blog on family and juvenile law at www.zharov.info. Anton Zharov is the author of five papers on the subject of termination of parental rights and complex adoption cases, as well as over 200 professional and editorial publications on family and juvenile law. He was elected in 2016 as the Scientific Director of the Institute of Family Educational and Legal Programs (Moscow).

Attorney Zharov’s Team Tel: +7 495 227 01 21 / +370 5 2143344 5 Build. 5, Petrovskiy pereulok Fax: +7 495 624 23 27 Moscow, 107031 Email: [email protected] Russia URL: www.azh.ru

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

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Singapore Singapore

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1 Divorce Directions). Further, where the parties have agreed from the outset (a) that the divorce proceedings will proceed on an uncontested basis, and (b) on all ancillary matters, they may apply for the divorce 1.1 What are the grounds of jurisdiction for divorce proceedings to be heard by the court within 10 days after the date of setting down (the “uncontested simplified hearing track”) (r 83, proceedings? For example, residence, nationality, domicile, Family Justice Rules). The court may, with the consent of all parties, etc.? make orders in the terms agreed without parties’ attendance (r 670, Family Justice Rules). In respect of non-Islamic marriages, Singapore’s courts have jurisdiction for divorce proceedings, judicial separation or nullity of 1.4 What is the procedure and timescale for a divorce? marriage where one of the parties is either (a) domiciled in Singapore at the start of proceedings, or (b) habitually resident in Singapore for a period of three years immediately before the start Generally, the plaintiff files a writ for divorce and other accom- of proceedings (s 93(1), Women’s Charter). panying papers to initiate divorce proceedings. As mentioned in In proceedings for nullity of marriage on the ground that a question 1.3, if parties have already agreed on the divorce and the marriage is void or voidable, the court can, even where neither of ancillary matters, then the divorce can proceed on the uncontested the two requirements above are fulfilled, grant relief in cases where simplified hearing track, which will be heard within 10 days from the both parties reside in Singapore at the time that the proceedings filing of the writ for divorce and the necessary papers. commence (s 93(2), Women’s Charter). If there is no agreement reached before the plaintiff files a writ In addition, the court only has jurisdiction for divorce proceedings for divorce, then the defendant will need to file a memorandum of if the writ for divorce is filed at least three years from the date of appearance within eight days, indicating whether he/she wishes to marriage (s 94(1), Women’s Charter). The exceptions to this rule are contest the divorce (r 54, Family Justice Rules). If the divorce is where there are grounds of “exceptional hardship” suffered by the contested, parties will have to file various pleadings, followed by plaintiff or “exceptional depravity” on the part of the defendant Affidavits of Evidence-in-Chief, respond to requests for discovery (s 94(2), Women’s Charter). of documents and/or interrogatories, and proceed to a trial with cross-examination of witnesses for the court to make a deter- mination on whether to grant an Interim Judgment dissolving the 1.2 What are the grounds for a divorce? For example, is marriage. There would also be case conferences (r 23, Family Justice there a required period of separation, can the parties have an Rules), counselling and/or mediation (r 174, Family Justice Rules) uncontested divorce? involved in the process. A contested divorce typically takes about nine months to a year to proceed to trial. Of course, the divorce A party may only file for divorce if there is an “irretrievable break- could be settled on an uncontested basis at any point in time if down” in the marriage (s 95(1), Women’s Charter). This is proved parties agree. by one of five facts (s 95(3), Women’s Charter); paraphrased as namely, adultery, unreasonable behaviour, desertion for at least two 1.5 Can a divorce be finalised without resolving other years, separation for at least three years with consent, or separation associated matters? For example, children and finances. for four years. There is no required period of living apart for grounds of adultery After the granting of an Interim Judgment, a divorce may not be and unreasonable behaviour. Parties may choose not to contest the finalised unless satisfactory arrangements have been made for the proceedings regardless of the grounds relied upon above. welfare of the children (s 123(1), Women’s Charter). The court has discretion to dispense with this rule if it is desirable to finalise the 1.3 In the case of an uncontested divorce, do the parties divorce or it has obtained satisfactory undertaking(s) from the need to attend court and is it possible to have a “private” party(ies) to bring the issue before the courts within a specified time divorce, i.e. without any court involvement? (s 123(2), Women’s Charter). In effect, a divorce may only be finalised after the hearing of all applications for ancillary relief, such as the division of matrimonial It is not possible to have a “private” divorce without court involve- assets, has been concluded at first instance unless leave of court is ment. However, the court may dispense with the need for the parties granted otherwise (r 96(3), Family Justice Rules). to attend court if it is to proceed on an uncontested basis (r 81, Family Justice Rules; paras 18, 116, Family Justice Courts Practice

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1.6 Are foreign divorces recognised in your jurisdiction? If There is no equivalent concept of matrimonial regimes which parties could elect or which could operate by default, whether of separate so, what are the procedural requirements, if any? or community property regimes, in Singapore.

The recognition of foreign matrimonial decrees is governed entirely 2.3 How does the court decide what financial orders to by common law principles. A foreign matrimonial decree will be recognised by way of court application to the Singapore courts on make? What factors are taken into account? the grounds of international comity if it originates from a court of competent jurisdiction and is not otherwise impeached for fraud, To determine the appropriate order to make, the court takes into breach of natural justice or contravention of the fundamental public account all the circumstances of the case, including certain statu- policy of the forum (Ng Sui Wah Novina v Chandra Michael Setiawan torily required factors. [1992] 2 SLR(R) 111; Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 With respect to the division of matrimonial assets, the court takes SLR(R) 485; Yap Chai Ling and another v Hou Wa Yi [2016] 4 SLR 581). into account the factors in s 112(2) of the Women’s Charter, such as the contributions made by each party in money, property or work 1.7 Does your jurisdiction allow separation or nullity towards acquiring, improving or maintaining the matrimonial property, and to the welfare of the family (ss 112(2), Women’s proceedings? Charter), and the factors listed in s 114(1) of the Women’s Charter. In practice, we loosely categorise all contributions as either “direct Yes, see question 1.1 above. financial contributions” or “indirect financial/non-financial contributions” towards the acquisition of the matrimonial assets. 1.8 Can divorce proceedings be stayed if there are The court generally takes a “global assessment approach” by first proceedings in another country? identifying the matrimonial pool of assets, then ascribing a ratio representing the parties’ direct contributions relative to each other, followed by ascribing a ratio representing the parties’ indirect Yes, divorce proceedings in Singapore may be stayed in favour of a contributions (non-financial or indirect financial contributions) foreign court on the ground of forum non conveniens unless substantive relative to each other, and finally averaging both the direct and justice will be denied by the stay of proceedings (Mala Shukla v Jayant indirect contributions to determine each party’s share of the Amiritanand Shukla (Danialle An, co-respondent) [2002] 3 SLR 295). matrimonial pool (ANJ v ANK [2015] SGCA 34). Where there are This will be assessed by the courts based on the rules in Spiliada multiple classes of assets within the matrimonial pool and parties Maritime Corporation v Cansulex Ltd [1987] AC 460 (VH v VI [2008] have made varying degrees of contributions within each asset class, 1 SLR(R) 742). the court may opt to apply a “classification approach” which allows the court to ascribe a different distribution ratio for each asset class 2 Finances on Divorce (AYQ v AYR [2013] 1 SLR 476; USA v USB [2019] SGHCF 5). With respect to spousal and child maintenance, the courts take into account the factors listed in s 114(1), such as the income, 2.1 What financial orders can the court make on divorce? earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future, the The court is empowered, when granting a judgment of divorce, to parties’ standard of living and their ages (ss 114(1), 127(2), Women’s order the division or sale of matrimonial assets in such proportion Charter). as is just and equitable (s 112(1), Women’s Charter). The court is Different policy considerations underlie spousal and child main- also empowered to make orders for maintenance for the wife, tenance. The court’s power to order spousal maintenance is incapacitated husband and children of the marriage (ss 113, 127, supplementary to its power to order a division of matrimonial assets. Women’s Charter). There may be no order for maintenance for the former wife if, from With respect to the division of matrimonial assets, the court may the division of matrimonial assets, there is a sum which, if invested make any order necessary or expedient to effect the division, which properly, would be sufficient to maintain the wife (TNL v TNK includes making an order for sale, vesting any asset owned jointly by [2017] SGCA 15; BOR v BOS [2018] SGCA 78 cf. UTQ v UTR [2019] the parties in both the parties in common in such shares as the court SGHCF 13). It should be noted that the courts have decided that deems just, vesting any asset or any part thereof in either party, even nominal maintenance (i.e. $1 maintenance) for a former wife ordering for any asset to be held in trust on such terms as may be is not to be awarded automatically or as a matter of course (ATE v specified in the order, and ordering a payment of sum of money by ATD [2016] SGCA 2). one party to the other party (ss 112(3), 112(5), Women’s Charter). An example of a “necessary or expedient” consequential order includes 2.4 Is the position different between capital and ordering a spouse who has exercised the option of taking over a maintenance orders? If so, how? matrimonial property to bear the mortgage and property tax payments from the date of the court order (TIC v TID [2018] SGCA 75). With respect to maintenance orders, in addition to the typical The Women’s Charter requires the court to take into account all the orders of payment of a lump sum or periodical payments, the court circumstances of the case whether in making orders for division of may provide for an attachment of earnings order, or require security matrimonial assets or for maintenance orders, although the for the maintenance by vesting property in trustees upon trust to pay principles and the specific factors between the two differ. Broadly the maintenance out of the income of the property (ss 81, 115, speaking, the division of matrimonial assets is aimed to be “just and Women’s Charter). equitable” (s 112(1), Women’s Charter) in light of parties’ respective contributions towards the marriage, while maintenance is aimed at 2.2 Do matrimonial regimes exist and do they need to be preserving the wife’s standard of living during the marriage (s 114(2), Women’s Charter). addressed by the court on divorce? Is there a default

matrimonial regime? 2.5 If a couple agrees on financial matters, do they need to have a court order and attend court?

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Yes, the parties’ agreement would be incorporated by way of a unless it was created to deprive the spouse of his/her claim to main- consent order which is filed with, and subsequently granted by, the tenance or asset division (CH v CI [2004] SGDC 131). As for a court. If the proceedings are uncontested, the court can waive the discretionary/revocable trust in favour of a third party, the court requirement for attendance. See question 1.3 above. would exercise its discretion as to whether the trust is a matrimonial asset. The court has power to set aside the trust on application 2.6 How long can spousal maintenance orders last and are under s 132 of the Women’s Charter (NI v NJ [2006] SGHC 198; AQT v AQU [2011] SGHC 138). such orders commonplace? It has recently been clarified that the Singapore Family Justice Courts do not have the jurisdiction or power to hear or determine If the maintenance is for a lump sum, it is intended to extinguish all third-party claims on assets involved in divorce proceedings. Third further and future claims. Otherwise, if the order for periodic parties or spouses must start a separate civil suit to finally determine payments is not expressed to be for any shorter period, the order the legal or beneficial interests in the disputed asset. In the mean- would last until either the death of the paying spouse (if the main- time, proceedings to divide the matrimonial assets must be stayed tenance is unsecured), or upon the payee spouse’s remarriage or (UDA v UDB [2018] SGCA 20). death (s 117, Women’s Charter). In any case, the court has the discretion to treat the value of the assets of the trust or the value of the assets expended to set up the 2.7 Is the concept of matrimonial property recognised in trust as a resource of the settlor/beneficiary, whether for division your jurisdiction? of matrimonial assets or in determining spousal maintenance (Marie Eileen Guin nee Fernandez v Arun Guin [1994] SGHC 157).

Yes, all “matrimonial assets” are subject to division upon a divorce (s 112(1), Women’s Charter). “Matrimonial assets” are defined as 2.11 Can financial claims be made following a foreign (s 112(10), Women’s Charter): divorce in your jurisdiction? If so, what are the grounds? ■ all assets acquired during the marriage by one or both parties to the marriage; or Yes, financial claims following a foreign divorce may be made in ■ all assets acquired before the marriage by one or both parties to Singapore subject to the court’s jurisdictional requirements and leave the marriage: being granted, by way of Chapter 4A, Part X of the Women’s ■ ordinarily used or enjoyed by both parties or their children Charter (Tan Poh Leng v Choo Lee Mei [2014] 4 SLR 462). Further, in for shelter, transportation, household, education, respect of foreign maintenance orders, a person may enforce such recreational, social and aesthetic purposes; or maintenance orders under either the Maintenance Orders (Facilities ■ substantially improved during marriage by one or both for Enforcement Act) or the Maintenance Orders (Reciprocal parties to the marriage. Enforcement Act), as applicable to the reciprocating country. Assets that are excluded are those (not being a matrimonial home) acquired by gift or inheritance by one party at any time and that have 2.12 What methods of dispute resolution are available to not been substantially improved during the marriage by the other party or both parties. resolve financial settlement on divorce? E.g. court, mediation, arbitration? 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Can the The family justice system has undergone substantial reform, with the unified Family Justice Courts, comprising the High Court (Family court make orders applying foreign law rather than the law of Division), the Family Court and the Youth Court being established on the jurisdiction? 1 October 2014; and a Judge-led approach coming into operation on 1 January 2015. Apart from the court’s jurisdictional requirements for granting a With effect from 1 October 2014, for divorce proceedings involving decree for divorce, there is no explicit rule stating that foreign children (below 21 years old), it is mandatory for the court to order the nationals are to be treated differently on divorce (see question 1.1) parties to attend mediation, counselling or both (s 50(3A), Women’s and the Women’s Charter applies even in cases of divorce between Charter), but the court is empowered to refer the parties to attend two foreign nationals in Singapore. mediation, counselling or other family support programmes in other instances (s 50(2), Women’s Charter). Such mediation is conducted by 2.9 How is the matrimonial home treated on divorce? specially appointed judge-mediators or legal professionals, at the Child Focused Resolution Centre or Family Resolution Chambers. With effect from 1 October 2016, the courts no longer mediate in cases A matrimonial home would be considered a “matrimonial asset” where assets are above a gross value of $3 million and there are no under the Women’s Charter and be placed in the pool of contested child issues, but may refer such cases to private mediation. matrimonial assets for division under Part X of the Women’s Private mediation is available through the Singapore Mediation Charter. However, depending on the circumstances, the home need Centre, as well as a number of organisations and individuals in not inevitably be sold and the proceeds divided. One party may Singapore. The Singapore Mediation Centre also has an accredited retain title of the home whilst reimbursing the other party for that Collaborative Family Practice panel. Whilst family arbitration is not party’s share of the matrimonial home or have the right to occupy expressly disallowed under the Arbitration Act, there are no known the home to the exclusion of the other party (s 112(5)(f), Women’s instances of family arbitration in Singapore. Charter). 3 Marital Agreements 2.10 Is the concept of “trusts” recognised in your jurisdiction? If so, how? 3.1 Are marital agreements (pre and post marriage) Yes, trusts are recognised in Singapore. Generally, a fixed/ enforceable? Is the position the same if the agreement is a irrevocable trust settled in favour of a third party will be left alone foreign agreement?

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Marital (pre- and post-nuptial) agreements are not in and of 3.3 Can marital agreements cover a spouse’s financial themselves enforceable whether as an operation of the common law claims on divorce, e.g. for maintenance or compensation, or or by statute (TQ v TR [2009] 2 SLR(R) 961 (CA)). However, for agreements concerning certain specific subject matters, the courts are they limited to the election of the matrimonial property may take such agreements into account when exercising their judicial regime? discretion if no vitiating factors affect their validity. It should also be noted that the courts have made a distinction between pre- and There are no explicit procedural requirements, but the court has post-nuptial agreements in that all things being equal, post-nuptial suggested that greater weight would be given if both parties were agreements would be given more weight as they are made after the represented and advised fully of the circumstances when they parties have undertaken responsibilities as between each other (TQ entered into a marital agreement (in the context of a post-divorce v TR). agreement: Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] Foreign vs Domestic Agreements 3 SLR 1284; AUA v ATZ [2016] SGCA 41). Where a marital agreement is (a) a valid foreign law-governed agree- ment, (b) not contrary to Singapore’s public policy, and (c) entered 4 Cohabitation and the Unmarried Family into between foreign nationals, the courts would accord its terms with “significant (even critical) weight” (TQ v TR). In relation to other agreements which possess a domestic element, e.g. involving 4.1 Do cohabitants, which do not have children, have Singapore nationals, the weight to be accorded to such agreements financial claims if the couple separate? What are the grounds would depend on the facts of the case (TQ v TR). to make a financial claim? Subject Matter of Agreements Agreements on child custody are prima facie unenforceable as there is a presumption that it is in the interests of the parties and not the There is no legislation that deals with a cohabitant’s financial claims child. The onus is on the party asserting otherwise to prove it to the upon separation. The ordinary principles of general property law courts (TQ v TR). The courts’ paramount consideration is the would apply (Chia Kum Fatt Rolfston v Lim Lay Choo [1993] 2 SLR(R) welfare of the child. The courts have power to vary the terms of 793). pre- and post-nuptial agreements relating to custody (s 129, Women’s Charter). 4.2 What financial orders can a cohabitant obtain? Agreements on wife and children maintenance would be subject to judicial scrutiny, in particular on the adequacy of the maintenance, See question 4.1 above. and the courts have power to vary the terms of maintenance if there has been a “material change in the circumstances” (TQ v TR; ss 119 and 132). Such agreements are considered as a part of “all the 4.3 Is there a formal partnership status for cohabitants (for circumstances of the case” (s 69(4); AUA v ATZ [2016] SGCA 41). example, civil partnerships, PACS)? Agreements on the division of matrimonial assets must be taken into account by the courts in their exercise of discretion when No. Singapore does not have a formal partnership status for dividing matrimonial assets if such agreements were made in cohabitants. “contemplation of divorce” (s 112(2)(e); TQ v TR). Significant, even conclusive, weight can be placed on an agreement on the division of matrimonial assets if the parties freely and voluntarily entered into 4.4 Are same-sex couples permitted to marry or enter other the agreement with full knowledge of the relevant circumstances and formal relationships in your jurisdiction? matters to be considered (AUA v ATZ). Some examples of “circumstances” in which the court may not No. Same-sex marriages, whether solemnised in Singapore or else- uphold a nuptial agreement, notwithstanding its formal validity, where, are void under the Women’s Charter (s 12(1), Women’s include: Charter). (a) where there was an element of trickery or coercion used to get one party to sign the pre-nuptial agreement (Chia Hock Hua v 5 Child Maintenance Chong Choo Je [1994] 3 SLR(R) 159); (b) where parties failed to give full and frank disclosure, such as when the husband knew or ought to have known that he would 5.1 What financial claims are available to parents on behalf be receiving substantive stock options at the time parties entered of children within or outside of marriage? into the pre-nuptial agreement which he did not disclose (AFS v AFU [2011] 3 SLR 275); (c) the pre-nuptial agreement is manifestly in one party’s favour and Parents may seek maintenance for their children within and outside to the detriment of the other (TQ v TR); and of marriage. See question 5.2 below. (d) where there was variation by subsequent conduct (TQ v TR). 5.2 How is child maintenance calculated and is it 3.2 What are the procedural requirements for a marital administered by the court or an agency? agreement to be enforceable on divorce? Both parents are under a duty to maintain or contribute to the main- Marital agreements can cover a spouse’s financial claims, but the tenance of the child (s 68, Women’s Charter). The court may order enforcement of the terms is ultimately subject to judicial discretion a parent to pay a monthly allowance or a lump sum for the mainten- (see question 3.1 above). ance of his/her child up until he/she attains 21 years of age (s 69(2), s 127, Women’s Charter).

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A maintenance order may also be ordered for the benefit of a 6 Children – Parental Responsibility and child beyond the age of 21 years if the child: (a) has a physical or mental disability; (b) is or will be serving full-time national service; Custody (c) is or will be studying or undergoing training for a trade, profession or vocation whether or not under gainful employment; 6.1 Explain what rights of custody both parents have in your or (d) has special circumstances justifying the making of the order (s 69(5), Women’s Charter). jurisdiction whether (a) married, or (b) unmarried? When ordering child maintenance, the court must have regard to all the circumstances of the case, including (s 69(4), Women’s There is no difference between married and unmarried parents in Charter): respect of their rights of custody. However, adoption applications (a) the financial needs of the child; made with the intent to form a same-sex family unit have been (b) the income, earning capacity (if any), property and financial declared by the court to be contrary to the Government’s public resources of the parents; policy stance. For such applications to succeed, the factual circum- (c) any disability of the child; stances of the particular case must be sufficient to convince the (d) the age of the parents and duration of the parents’ marriage; court that the statutorily imposed imperative to advance welfare of and the child outweighs all militating public policy considerations. The (e) the standard of living enjoyed by the child before the parent Government is also in the process of determining its official policy ceased providing reasonable maintenance for the child, including regarding surrogacy as well as the appropriate legislative and enforce- how the parties expected him/her to be, educated or trained. ment actions to be taken (UKM v AG [2019] 3 SLR 874). The authorities had been exploring the viability of establishing a formula-based child maintenance table to facilitate the calculation of 6.2 At what age are children considered adults by the court? child maintenance. There is no agency administering maintenance claims in Singapore, and maintenance orders have to be enforced through The Women’s Charter defines a “minor” as a person who is below court proceedings. the age of 21 years, and subject to child custody orders. However, a child who has attained 18 years of age but is below 21 years old would not be considered to be a minor in relation to any legal 5.3 For how long is a parent required to pay child proceeding or action in which, by virtue of s 36 of the Civil Law maintenance or provide financial support for their children? Act, he/she may, in his/her own name and without a litigation For example, can a child seek maintenance during university? representative, bring, defend, conduct or intervene in as if he/she were of full age (r 3(4), Family Justice Rules). A maintenance order may also be ordered for the benefit of a child beyond the age of 21 years in certain circumstances, typically until 6.3 What is the duration of children orders (up to the age of the completion of university education. See question 5.2 above. It 16 or 18 or otherwise)? has been held that if a child is genuinely pursuing a course of studies in order to better prepare him/herself for the working world, as long Child custody orders last until the child is 21 years of age. as it is reasonable for the child to pursue that course and the parents

can afford it, the court may order the parents to maintain the child either fully or partially while still studying (Wong Ser Wan v Ng Cheong 6.4 What orders can the court make in relation to children? Ling [2006] 1 SLR(R)). Where a parent was not informed or Does the court automatically make orders in relation to child consulted on the child’s decision to study overseas, the court may find arrangements in the event of divorce? it more reasonable to assess the parties’ contributions based on the cost of a local university education (BON v BOQ [2018] SGCA 68). The court has to make orders in respect of “custody”, “care and

control” and “access” under the Women’s Charter in the event of 5.4 Can capital or property orders be made to or for the divorce. benefit of a child? The court has the power to place a child in the custody of either parent or (in exceptional circumstances where it is undesirable that The court may, if it considers just, order the person liable to pay the the child be entrusted to either parent) a relative, with paramount maintenance to secure the whole or part of it by vesting any consideration to the welfare of the child (ss 125, Women’s Charter). property belonging to the person in trustees upon trust to pay the The person given “custody” has decision-making control and maintenance or a part of it out of the income from the property for responsibility over the upbringing, education, health and religion of the settlor (s 69(5), Women’s Charter; s 70(5), Women’s Charter). the child (ss 126(1), (2), Women’s Charter). The Court of Appeal has emphasised that parenthood is a lifelong responsibility and endorsed the idea of joint parental responsibility, even where there 5.5 Can a child or adult make a financial claim directly is acrimony between the parents (CX v CY [2005] 3 SLR 690), by against their parents? way of joint or no custody orders. Courts may order sole custody in exceptional circumstances, e.g. where one parent physically, Yes, he/she may do so against his/her parents or the person who sexually or emotionally abuses the child. has accepted him/her as a member of his/her family if he/she has The parent with “care and control” has the right to take care of attained 21 years of age (ss 69(3)(b), 70(4)(b), Women’s Charter). If the child and to make the day-to-day decisions concerning the child’s the child is a minor, his/her siblings who have attained 21 years of upbringing and welfare (CX v CY ). This right naturally belongs to age (ss 69(3)(c), 70(4)(c), Women’s Charter) or his/her guardian or a the parent with whom the child lives (AQL v AQM [2012] 1 SLR person having actual custody of him/her (ss 69(3)(a), 70(4)(a), 840). Orders for shared care and control do subsist but are rarer in Women’s Charter) may do so instead. Singapore on account of various reasons, e.g. due to the logistical difficulties, the fact that it may be disruptive, and the parents having markedly different parenting styles (AQL v AQM). In deciding

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which parent should be given care and control of the children, the after he/she receives the reports or expert evidence as these avenues following are some trends which emerge from local case law: are not mutually exclusive (AZB v AZC). ■ There is a preference towards preserving the status quo and continuity of living conditions (Wong Phila Mae v Shaw Harold 6.10 Is there separate representation for children in your [1991] 1 SLR(R) 680; TSF v TSE [2018] SGCA 49). jurisdiction and, if so, who would represent them, e.g. a ■ 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 ). lawyer? ■ Siblings should not be separated (Kim Chun Ahe v Ng Siew Kee [2002] SGDC 276). Yes, the court may (via an application by a party or otherwise), if it Lastly, the court usually grants “access” to the parent who does is in the best interests of the child to do so, appoint a child not have care and control of the child (AQL v AQM) to have regular representative for a child for any action involving the child or the contact with the child. custody or welfare of the child (r 30, Family Justice Rules).

6.5 What factors does the court consider when making 6.11 Do any other adults have a say in relation to the orders in relation to children? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution See question 6.4 above. The overwhelming factor is the child’s best are available to resolve disputes relating to children? interests.

These other relatives can have a say by giving witness statements on 6.6 Without court orders, what can parents do unilaterally? behalf of a spouse. In particular circumstances, while ordinarily the For example, can they take a child abroad? grandparents’ role could not overtake the priority that the law placed on parental love, responsibility and care, the child’s bond with the Where a custody, or care and control order is in force, unless the trip grandparents had been taken into account (TSF v TSE [2018] SGCA is for a period of less than one month, the child may not be taken 49). However, such relatives do not have locus standi to apply for out of Singapore without the other parent’s written consent or with custody, care and control of the child even under the Guardianship the leave of the court (ss 126 (4), (5), Women’s Charter). of Infants Act, save in limited circumstances as prescribed, such as where the child has no surviving natural parents or the removal of the natural parents as guardians (UMF v UMG [2019] 3SLR640). 6.7 Is there a presumption of an equal division of time For methods of dispute resolution, see question 2.12 above. between separating or divorcing parents? 7 Children – International Aspects There is no presumption of equal division of time. There is no legal principle against, or a legal presumption for, shared care and control. The realities upon a separation or divorce, including the parental 7.1 Can the custodial parent move to another state/country conflict, the parties’ emotional baggage, and the dynamics of the without the other parent’s consent? various relationships may entail that the perceived ideal of equal-time shared parenting or shared care and control could do more harm The custodial parent cannot take and move a child who is subject to than good (TAU v TAT [2018] SGHCF 11). Ultimately, the court a custody order out of Singapore, except with the written consent looks at the best interests of the child to determine the optimal of the other parent or the leave of court (s 126(3), Women’s arrangement. See question 6.4 above. Charter).

6.8 Are unmarried parents treated in the same way as 7.2 Can the custodial parent move to another part of the married parents when the court makes orders on separation state/country without the other parent’s consent? or divorce? This is not applicable to Singapore, which is a small single-state Whilst the procedure for applying for custody, care and control is country. different under the Guardianship of Infants Act for unmarried parents and under the Women’s Charter for married parents, the 7.3 If the court is making a decision on relocation of a child courts treat unmarried parents and married parents in the same way. abroad, what factors are taken into account?

6.9 Is a welfare report prepared by an independent In considering relocation applications, the welfare of the child is professional or is the decision taken by the Judge alone? If paramount and this principle overrides any other consideration (s 3, so, does the child meet the Judge? Guardianship of Infants Act; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] SGHCF 1). The court balances all the circumstances The decision is ultimately taken by the Judge. However, the Judge of the case, including: may (via an application by a party or otherwise) order the production (1) the effects on the child if the (reasonable) wishes of the parent of reports such as a Social Welfare Report, with primary care wishing to take the child abroad are interfered Report, Access Evaluation Report, Special Issues Report, etc. by with – in particular whether there would be transference of professionals from the appropriate disciplines within the Ministry of negativity from the parent (whether due to emotional or physical Social and Family Development and various other government instability) onto the child; agencies (s 28, Family Justice Act; rr 35, 36, Family Justice Rules; (2) the child’s loss of relationship with the parent left behind, AZB v AZC [2016] SGHCF 1). The Judge may still interview a child especially risk of estrangement due to lacking physical contact with a young child (UUI v UUJ [2019] SGFC 59), or the child growing up in an environment without the opportunity to learn

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a common language to communicate with the left-behind presumption that the country of habitual residence would decide parent; such matters in the child’s paramount interests (BDU v BDT ). (3) the feasibility and meticulousness of the applicant’s relocation Undertakings are required as a prerequisite for the return of the plan, including the work, living and care arrangements. This child; this acts as a protective measure to ensure that justice and fair- would include whether an adequate plan has been provided in ness is achieved (BDU v BDT ). respect of any National Service obligations owed by male In determining the child’s country of habitual residence, the court children (UXH v UXI [2019] SGFC 64); and will consider whether the child was habitually resident in that place (4) the compatibility and prospects of the education system that the immediately before the date on which the allegedly wrongful removal child would be exposed to after relocation (TOF v TOE [2019] or retention of the child is said to have taken place (TUC v TUD SGFC 38). [2017] SGHCF 12). The country of habitual residence of the child is determined by considering two things: the degree to which the 7.4 If the court is making a decision on a child moving to a child is settled or integrated in that country; and the joint intention of the parents as to whether the child is to reside in that country different part of the state/country, what factors are taken into (TUC v TUD). The weight to be placed on each concern is account? dependent on the circumstances of each case (TUC v TUD). Regarding the exception of consent under Art 13(a) of the Hague See question 7.2 above. Convention, the parent seeking to invoke the exception must show on a balance of probabilities that the left-behind parent has 7.5 In practice, how rare is it for the custodial parent to be unequivocally consented to the removal or retention of the child. The evidence provided must be clear and compelling (TUC v TUD). allowed to relocate internationally/interstate?

8 Overview Until about 2015, such applications have generally been allowed so long as the custodial parent’s desire to relocate is not unreasonable or founded in bad faith. The Court of Appeal and High Court have, 8.1 In your view, what are the significant developments in since about 2015, criticised this approach and generally appeared to family law in your jurisdiction in the last two years? disallow relocation; the custodial parent’s reasonable wishes are no longer a determinative factor, but are only one of the factors among other composite factors, particularly, the loss of relationship with Further to what was said in the 2019 chapter, the following devel- the left-behind parent depending on the strength of the existing opments have been of interest and significance: bond between that parent and the child (BNT v BNS [2014] 4 SLR Defining Quintessential Matrimonial Assets 859; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] SGHCF 1). Recent cases have unprecedentedly defined “matrimonial assets” as However, since about 2018, there appears to have been an increase including lottery winnings (on the presumption that the spouse in the number of cases allowing relocation. The stricter attitude contributed equally, BOI v BOJ [2019] SGCA 30) and compensation towards relocation means that the court will first examine whether for injuries sustained during a road traffic accident by one spouse relocation is a matter of necessity. Where relocation is merely an (including special damages and past loss of earnings, but excluding optional albeit understandable choice, the applicant will be required compensation for pain and suffering, UMN v UMT [2019] SGCA 35). to establish how relocation serves the best interests of the children’s The law has been clarified for cases where parties have welfare (UXH v UXI [2019] SGFC 64). However, since about 2018, cohabitated before marriage and acquired assets before marriage. there appears to have been an increase in the number of cases For such assets acquired before marriage, the pre-marital part could allowing relocation (ULA v UKZ [2018] SGHCF 19; UOG v UOH be “discounted” and the part of the acquisition that coincides with [2018] SGFC 76; UQN v UQO [2018] SGFC 107; UQV v UQW the period of the marriage could be subject to division (UJF v UJG [2018] SGFC 14; URQ v URR [2018] SGFC 121; TOF v TOE [2019] [2018] SGHCF 1; USA v USB [2019] SGHCF 5). Professor Leong rd SGFC 38. cf. UUI v UUJ [2019] SGFC 59; UXH v UXI [2019] SGFC Wai Kum in Elements of Family Law in Singapore (3 Ed, 2018) 64). The assessment is now an intensely fact-centric exercise (UFZ suggests that there is room for the court to build up principles of v UFY [2018] SGHC 8). when it is appropriate to make such a “discount” and when not (at para 16.152). Approach to Division of Matrimonial Assets 7.6 How does your jurisdiction deal with abduction cases? The law on the approach to division of matrimonial assets has been For example, is your jurisdiction a party to the Hague evolving since the structured approach was laid down in ANJ v ANK Convention? (see question 2.3). The structured approach does not apply to single- income marriages, as this unduly favours the working spouse at the In respect of international abduction cases, the International Child expense of the non-working spouse. Where it is a case of a long Abduction Act came into force on 1 March 2011. It was enacted to single-income marriage, the court will tend towards an equal division fulfil Singapore’s obligations under the Hague Convention on Civil of matrimonial assets (TNL v TNK and another appeal and another Aspects of International Child Abduction (the “Hague Convention”) matter [2017] SCGA 15). It has been held that there is a similar which she acceded to on 28 December 2010. The Ministry of Social tendency to incline towards equality in long dual-income marriages and Family Development is the designated Central Authority to (UYP v UYQ [2019] SGHCF 16). implement Singapore’s obligations under the Convention. There are few reported decisions under the Convention. 8.2 What are some of the areas of family law which you think Singapore subscribes to the Convention policy of securing the should be looked into in your jurisdiction? prompt return of a child who had been removed in breach of custody rights effectively exercised under the law of the country of The following have been discussed in the 2019 chapter: his/her habitual residence, subject to judicial discretion when the Enforcement of Maintenance Orders exceptions in Art 13 of the Hague Convention have been satisfied The enforcement of maintenance orders has been problematic. The (BDU v BDT [2014] SGCA 12). The Singapore courts will not last systemic attempt to redress this was through the Women’s examine the substantive merits of custodial disputes, with the Charter (Amendment) Act 2011, where among other things,

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“Attachment of Earnings Orders” to compel the ex-spouse’s disobeying the court order. However, taking the cue from civil cases, employer to pay the maintenance from the ex-spouse’s monthly wage this requires a high standard of proof; the party alleging the breach (ss 81A, Women’s Charter) was introduced. However, it still remains must show beyond a reasonable doubt that there was a deliberate act a challenge to enforce maintenance orders in Singapore; over 2,000 of breaching an order of court (OCM Opportunities Fund II, LP and enforcement applications are still filed each year. Therefore, more others v Burhan Uray and others [2005] 3 SLR(R) 60). Therefore, there needs to be done to address this. is a need for more expedient and less draconian ways tailored for Enforcement of Access Orders family law to enable a parent to have recourse to when denied access In situations where a parent has been denied access to his/her child to his/her child by the other parent. by the other parent in breach of access orders made by the court, the obvious recourse is to file a case for contempt of court for

Wong Kai Yun has practised law for the past 24 years. Her family law clients typically comprise high-net-worth individuals with especial concerns over financial settlements, and expatriates with cross-jurisdictional issues. Ms. Wong is a Fellow of the International Academy of Family Lawyers, as well as a registered practitioner of the Society of Trust and Estate Practitioners. She is an accredited Mediator with several organisations, including the Singapore Mediation Centre (SMC), SMC’s Family Panel, and the Cross-Border Family Mediators of Mediation bei Internationalen Kindschaftskonflikten (MiKK), Berlin, Germany. She is also on the SMC’s panel for Collaborative Family Practice. Since its inauguration in 2013, Ms. Wong has been honoured by being a member of the Top 200 IFC (International Financial Centre) Power Women and was included in the Citywealth Leaders List. Ms. Wong has been named in the Doyles Guide for Family & Divorce Lawyers from 2015 to 2019.

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

With a strong litigation foundation, the team of lawyers at Chia Wong well as the Boutique Family Law Firm of the Year in the ACQ5 Global Awards Chambers pride themselves on their aggressive style of dispute resolution. 2015. It was also featured in the Business Times Salutes Enterprise in 2016 They have handled many high-profile cases, and recognise the realities of and in Corporate INTL Magazine (2017) and the 2018 Annual Who’s Who media exposure, commercial practicality and individual sensitivity. handbook. The firm handles a variety of cases, including heavily contested matrimonial www.chiawongchambers.com cases. With associate offices in various jurisdictions, they also tackle many cross- border disputes that involve foreign entities and individuals. The firm (previously known as Chia Wong LLP) was named as the Editor’s Choice in the Global Law Experts 2015 Practice Area Awards, as the Boutique Family Law Firm and Boutique Criminal Law Firm of the Year in Singapore, as

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South Africa South Africa

Zenobia du Toit

Miller du Toit Cloete Inc Sandra Van Staden

1 Divorce The plaintiff ’s plea to counterclaim may then follow and formal pleadings are closed. The process of discovery then ensues and the timelines for requests and the replies thereto are set out in the court 1.1 What are the grounds of jurisdiction for divorce rules. Parties can supplement and/or call for further discovery throughout this process. Parties can also request further particulars proceedings? For example, residence, nationality, domicile, for the purposes of preparing for trial and can appoint experts to etc.? deal with specific issues in dispute. When pleadings close, the parties apply for the allocation of a date A court will have jurisdiction if the parties/either of the parties are: before a case management judge (Uniform Rule 37). The judge 1. domiciled in the courts area of jurisdiction on the date upon monitors the parties and holds them to the timelines for further which the action is instituted; or conduct of the matter. Once the matter is declared trial ready, a date 2. ordinarily resident in the court’s jurisdiction on the date and have will be allocated for the hearing of the trial which is ordinarily four been ordinarily resident in South Africa for at least one year to six months after the matter was declared trial ready. immediately prior to that date (Section 2(1) of the Divorce Act). An uncontested divorce can be finalised within a week of non- defence and/or settlement. A contested divorce that proceeds to 1.2 What are the grounds for a divorce? For example, is trial can take up to three years or more to finalise.

there a required period of separation, can the parties have an 1.5 Can a divorce be finalised without resolving other uncontested divorce? associated matters? For example, children and finances. South Africa has a no-fault divorce system. Misconduct is, however, considered by the court when assessing a maintenance claim in terms Parties can, in certain instances, agree to reduce the issues in dispute of Section 7(2) of the Divorce Act. as well as having the issues determined separately. Three no-fault grounds for divorce are recognised, namely: Uniform Rule 33(4) provides that: “If, in any pending action, it appears 1. An irretrievable breakdown in the marriage relationship (Section to the court mero motu that there is a question of law or fact which may 4). The court must be satisfied that the marriage relationship conveniently be decided either before any evidence is led or separately from any between the parties has reached such a state of disintegration other question, the court may make an order directing the disposal of such ques- that there is no reasonable prospect of a restoration of a normal marriage tion in such manner as it may deem fit and may order that all further proceedings relationship between the parties. be stayed until such question has been disposed of, and the court shall on the 2. Incurable mental illness (Section 5(1)). application of any party make such order unless it appears that the questions 3. Continued unconsciousness (Section 5(2)). cannot conveniently be decided separately.”

1.3 In the case of an uncontested divorce, do the parties 1.6 Are foreign divorces recognised in your jurisdiction? If need to attend court and is it possible to have a “private” so, what are the procedural requirements, if any? divorce, i.e. without any court involvement? The divorce itself is automatically recognised if it was granted in a court of competent jurisdiction abroad. Should one wish to Whether contested or not, the court possesses the overriding implement the terms of the agreement in South Africa, one should, discretion to grant the final decree of divorce. All divorce actions without delay, apply to a South African court with jurisdiction to must be instituted and heard in court. have the order registered as a reciprocal order.

Parties should also register the divorce with the Department of 1.4 What is the procedure and timescale for a divorce? Home Affairs.

A party institutes a divorce action by way of combined summons in 1.7 Does your jurisdiction allow separation or nullity court. A defendant has 10 court days to defend the action, failing proceedings? which the plaintiff can set the divorce down for hearing on an uncontested basis. If defended, the defendant has a further 20 court days to file their plea and counterclaim. South African courts do not allow separation proceedings and parties who elect to enter into separation agreements regulating the

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consequences of their separation cannot have such agreements made the event, however, that the ANC predates 1 November 1984, in an order of court. These agreements are only enforceable inter partes. terms of Section 7(3) of the Divorce Act 70 of 1979 (“the Divorce Insofar as nullity proceedings are concerned, our courts can Act”), the court has the discretion to order a redistribution of assets, declare a marriage null and void ab initio on the ground of non- if the court is satisfied that it is “equitable and just ” to do so, taking compliance when the formal or material requirements for a civil into account the factors stipulated in Section 7(5) of the Divorce marriage have not been met. Act. Voidable and putative marriages can also be set aside as null and void. The legal consequences of a valid civil marriage remain in 2.4 Is the position different between capital and place until the court declares the marriage voidable. maintenance orders? If so, how?

1.8 Can divorce proceedings be stayed if there are The factors which the court takes into account in making spousal proceedings in another country? maintenance orders are different to those for capital orders and are found in Section 7(2) of the Divorce Act namely: existing and/or There is no hard and fast rule and our courts have decided prospective means of each of the parties; respective earning differently in respect of these applications. Each is decided on its capacities; financial needs and obligations; ages; duration of the own merits. marriage; standard of living; conduct insofar as it may be relevant to the breakdown of the marriage; any capital award; or any other 2 Finances on Divorce factor that the court deems should be taken into account.

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

Depending on which matrimonial property regime parties chose at Yes, a court order and an appearance in court are required. the time of their marriage, the patrimonial financial orders can take the form of: (a) an equal division; 2.6 How long can spousal maintenance orders last and are (b) a redistribution order – ordering the spouse with the larger estate such orders commonplace? to pay a sum of money ranging from 1% to 50% of the net value of his/her estate; or Spousal maintenance orders are commonplace; however, they are (c) determining the value and ordering payment of the value of an only awarded if the criteria as set out in Section 7(2) of the Divorce accrual claim. Act are met and can take the form of either: The orders in terms of (b) and (c) are claims sounding in money. (a) “rehabilitative maintenance”, for a fixed period (months/years) The values of pension/providend fund and/or retirement annuity either as agreed or as determined by the court; or interests are taken into account in both instances and could also (b) “lifelong maintenance”, until death or remarriage, whichever include the value(s) of a trust(s); however, trust values are not an event occurs first. automatic inclusion.

2.7 Is the concept of matrimonial property recognised in 2.2 Do matrimonial regimes exist and do they need to be your jurisdiction? addressed by the court on divorce? Is there a default matrimonial regime? The concept of “matrimonial property” is not recognised in South African law. If, however the court is applying foreign law in a divorce The court does have regard to and will give effect to the property matter and such foreign law jurisdiction recognises the concept of regime chosen by the parties. There are two property regimes in “matrimonial property”, the South African court will do likewise. South Africa, the default regime being “in community of property” (“ICOP”). If parties wish to marry “out of community of 2.8 Do the courts treat foreign nationals differently on property” (“OCOP”), they must, prior to the marriage, enter into an Antenuptial Agreement (“ANC”) (or “pre-nuptial agreement”, as divorce, if so, what are the rules on applicable law? Can the commonly known in other jurisdictions), attested by a notary public. court make orders applying foreign law rather than the law of The ANC must be registered in the Deeds Registry, whereafter it the jurisdiction? becomes a public document. There are two choices of ANCs. Parties can choose to enter into The general position is that the marriage is governed by the law of an ANC incorporating the accrual system (a type of sharing regime), the domicile of the husband at the time of the marriage. If a foreign alternatively, an ANC expressly excluding the accrual system, but national satisfies the South African court that it has jurisdiction to setting out in each, their chosen terms and conditions governing hear the divorce action, he/she is treated the same as a South African their chosen regime. The consequences of each are different. citizen save that, if applicable, the court will apply foreign law to determine the patrimonial consequences (assets only, not mainten- 2.3 How does the court decide what financial orders to ance) of the marriage upon divorce. make? What factors are taken into account? 2.9 How is the matrimonial home treated on divorce? The court has no discretion as to whether or not to give effect to the parties’ chosen regime or whether or not to give effect to the terms There is no distinction between the matrimonial home and any other and conditions in their ANC. The usual order of a marriage ICOP asset in the parties’ estate. It simply forms part of the estate to be is an equal division of the joint estate. In an OCOP marriage, effect divided. is given to the terms of the ANC – refer to question 2.2 above. In

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2.10 Is the concept of “trusts” recognised in your A pre-marital agreement must be entered into prior to marriage, signed by the parties, attested by a notary and registered in the Deeds jurisdiction? If so, how? Registry within three months of execution or such extended period as the court may permit, and may not be immoral, illegal or imposs- In terms of South African law, trusts are recognised and regarded as ible. It is binding upon third parties. The matrimonial proprietary separate legal entities. It is commonplace for trusts to be joined as regime will be implemented. No requirements for separate legal defendants (respondents) in divorce proceedings and the court being advice or execution within a certain period of time before the asked to find that the trust is the “alter ego” of a party, to order that marriage exist, although it is advisable. the assets of the trusts are “deemed” to fall in the estate of such party Valid post-marital agreements are enforceable. and must be taken into account when determining the value of A foreign marital agreement, if executed in terms of the laws of his/her estate for purposes of dividing the parties’ combined estates such foreign jurisdiction and regarded there as valid, would be in accordance with their chosen property regime. Claims that a trust enforceable. is a “sham” have also become commonplace; however, such claims The law governing the marriage is that of the domicile of the are more difficult to prove. husband at time of the marriage; Franco’s Estate vs The Master 1950(1) “Alter ego” and “sham” claims are commonly referred to as “trust SA220(A) and Sperling vs Sperling 1975(3) SA 707(A). A subsequent busting”. Following the relatively recent decision in the Supreme change of domicile does not affect this rule’s applicability. The Court of Appeal (“the SCA”) in the case of “Mills v Mills (2017) 2 doctrine of immutability is accepted by the courts. Should the legal All SA 364 (SCA)” (“Mills-case”), trust busting has become far more system of domicile provide that the spouses may change their difficult. In the Mills-case, the SCA found that: proprietary regime by post-nuptial agreement, such a change will be “Although the appellant administered the trusts with very little regard for his recognised. The lex loci contractus is used to test the formal validity fiduciary duties as a trustee and without proper regard for the essential dichotomy of an antenuptial contract (Ex parte Spinazzenno 1985 (3) SA 650 of control and enjoyment essential to the nature of a trust and although such (A)). conduct may have justified his removal as a trustee…the evidence did not prove In terms of Section 87(2) of the Deeds Registry’s Act 47 of 1937, that he transferred personal assets to these trusts and dealt with them as if they an antenuptial contract executed outside South Africa shall be were assets of these trusts, with the fraudulent or dishonest purposes of avoiding attested by a notary public or entered into in accordance with the lex his obligation to properly account to the respondent for the accrual of his estate. loci contractus and shall be registered in a South African Deeds Registry In addition, it was not established that the transfer of assets to these trusts by within a certain period. It is effective against third parties. Where a the appellant was simulated with the object of cloaking them with the form and husband is not domiciled in South Africa at the time of the marriage, appearance of assets of the trusts, whilst, in reality, retaining ownership.” he is not required to register the antenuptial contract for recognition. (emphasis added). Thus, post Mills v Mills, absent proof of a fraudulent or dishonest 3.2 What are the procedural requirements for a marital intent with the purpose of avoiding a spouse’s claim, it has now become very difficult for a claimant spouse to succeed in “trust agreement to be enforceable on divorce? busting”. The pre-marital agreement must have been executed in terms of the 2.11 Can financial claims be made following a foreign laws of the country of the husband’s domicile at the time of marriage. If the husband had not been domiciled in South Africa, divorce in your jurisdiction? If so, what are the grounds? then any post-marital agreement will have to be executed in terms of the laws of the country of his domicile to be valid. If the If the divorce was heard and finalised by a competent court having husband had been domiciled in South Africa or if the parties jurisdiction in a foreign country, no further financial claims can be relocate to South Africa or are domiciled in South Africa, then an made. agreement may be entered into post-marriage in terms of the Section 21 of the Matrimonial Property Act 88 of 1984. They may 2.12 What methods of dispute resolution are available to jointly apply to a court for leave to change the matrimonial property resolve financial settlement on divorce? E.g. court, system, provided that sound reasons exist, sufficient notice has been given to all creditors and no other person will be prejudiced thereby. mediation, arbitration? The court will authorise them to enter into a notarial contract to regulate their future matrimonial property system. Mediation has, for many years been available and is widely used to resolve family disputes. The legislature is in favour of, and there is 3.3 Can marital agreements cover a spouse’s financial a drive towards, alternative dispute resolution (“ADR”). The South African Law Reform Commission is currently considering all legis- claims on divorce, e.g. for maintenance or compensation, or lation relating to/affecting family law with a view to amend the are they limited to the election of the matrimonial property relevant legislation by including provisions to re-direct family law regime? disputes to ADR as a starting position before approaching the courts. The Arbitration Act 42 of 1965 currently still prohibits Marital agreements can cover a spouse’s proprietary claims on arbitration in family matters, but it is being considered an alternative divorce, but not personal nor children’s maintenance claims. dispute resolution procedure. Compensation is unknown in South African law, except for a right of recourse in terms of Section 23 of the Matrimonial Property Act 88 3 Marital Agreements of 1984, for pro rata agreed contributions for necessaries of the joint household. ST v CT (1224/16) [2018] ZASCA 73 found on certain facts that 3.1 Are marital agreements (pre and post marriage) to deal with the exclusion of personal maintenance claims in pre- enforceable? Is the position the same if the agreement is a marital agreements is against public policy. foreign agreement?

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4 Cohabitation and the Unmarried Family A parent is required to pay child maintenance or provide financial support for their children until a child is self-supporting. A parent’s duty to pay child maintenance is thus not dependant on the age of 4.1 Do cohabitants, which do not have children, have the child or any time period. However, this does not mean that such maintenance obligation continues for an unreasonable length of financial claims if the couple separate? What are the grounds time. to make a financial claim? 5.4 Can capital or property orders be made to or for the No automatic consequences arise from cohabitation. Cohabitants benefit of a child? may, however, prove an express or tacit universal partnership in regard to assets specifically or generally. Commercial elements have to be proved; such as that each party must have brought in some- Generally, capital or property orders cannot be made to or for the thing for the joint benefit of both parties with the object to make a benefit of the child. However, in instances where it can be shown profit legitimately, but not necessarily for a commercial purpose. See that there is a pattern of default, the court can order that the parent’s Butters v Mncora 2012 (4) SA (1) (SCA). pension benefit be interdicted and preserved for the benefit and as An unjust enrichment claim may arise where one cohabitant’s security for the maintenance of a child. estate has been unjustly enriched at the expense of the other. No personal maintenance claims arise, unless by agreement to the 5.5 Can a child or adult make a financial claim directly contrary. against their parents? A civil union in terms of the Civil Unions Act No 17 of 2006 would have the same consequences as marriage. Yes, a child or adult can make a financial claim directly against their parents. 4.2 What financial orders can a cohabitant obtain? 6 Children – Parental Responsibility and A cohabitant cannot automatically obtain financial orders – see Custody above.

4.3 Is there a formal partnership status for cohabitants (for 6.1 Explain what rights of custody both parents have in your example, civil partnerships, PACS)? jurisdiction whether (a) married, or (b) unmarried?

No automatic formal partnership status arises for cohabitants. Section 19(1) of the Children’s Act 38 of 2005 (“the Act”) provides that the biological mother (married or unmarried) of a child has full 4.4 Are same-sex couples permitted to marry or enter other parental responsibilities and rights (to care for, maintain contact with, act as guardian of, and contribute to the maintenance of, the child) formal relationships in your jurisdiction? in respect of the child. The biological father has the same rights if he is married to the child’s mother; or was married to the child’s Same-sex couples are permitted to marry and/or enter into a civil mother at the time of the child’s conception, the child’s birth or any union or a written contractual agreement. time between the child’s conception and birth (Section 20 of the Act). 5 Child Maintenance Unmarried fathers who do not have parental responsibilities and rights in terms of Section 20, acquire the same rights as the child’s mother if they meet the following requirements (Section 21): 5.1 What financial claims are available to parents on behalf (a) at the time of the child’s birth he is living with the mother in a of children within or outside of marriage? permanent life partnership; (b) he, regardless of (a), above consents to be identified or success- Parents can claim maintenance in the form of periodic payments on fully applies to be identified as the child’s father or pays damages behalf of children within or outside of marriage. in terms of customary law; (c) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and 5.2 How is child maintenance calculated and is it (d) contributes or has attempted in good faith to contribute towards administered by the court or an agency? expenses in connection with the maintenance of the child for a reasonable period. Child maintenance is calculated based on the reasonable needs of the child, taking into account the best interests of the child in line 6.2 At what age are children considered adults by the court? with the Children’s Act 38 of 2005. It will differ on a case-by-case basis according to the needs of the child, the parents’ ability to pay A child becomes a major at the age of 18 years. and the circumstances of the particular case. Child maintenance can be administered by the court; however, this is not a requirement. Instead, maintenance can be paid directly by the parent ordered to 6.3 What is the duration of children orders (up to the age of pay maintenance to the parent who is to receive the maintenance. 16 or 18 or otherwise)? Direct payments are utilised more often in South Africa. A court order in regard to Parental Responsibilities and Rights in 5.3 For how long is a parent required to pay child respect of a minor child remains in effect until: maintenance or provide financial support for their children? (1) the child becomes a major; (2) it is terminated by the court; For example, can a child seek maintenance during university?

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(3) the death of the child; or stage of development of the child; or the gender of the child – see (4) the death of the person who has parental responsibilities and question 6.5 above. rights. 6.8 Are unmarried parents treated in the same way as 6.4 What orders can the court make in relation to children? married parents when the court makes orders on separation Does the court automatically make orders in relation to child or divorce? arrangements in the event of divorce? Married or unmarried parents who hold parental rights and In terms of Section 6(1)(a) of the Divorce Act 70 of 1979, the court responsibilities are treated in the same way. The best interests of the may not grant a decree of divorce until it is satisfied that child is primary. On divorce, a separate document () arrangements with regard to the welfare of any minor child of the is prepared to regulate the exercise of parental rights and marriage are satisfactory [whether by agreement between the parties responsibilities. Unmarried parties may enter into a parenting or not]. If the court is not so satisfied, it has a discretion to order plan/parental rights and responsibilities agreement which may be an investigation. If the court is satisfied, the court may make an incorporated in an order of court or registered at the Office of the order in regard to the parental responsibilities and rights regulating Family Advocate (see question 6.9 below). These agreements may the: care; contact to; guardianship; and maintenance of the minor be reviewed as the child’s developmental needs change. child. 6.9 Is a welfare report prepared by an independent 6.5 What factors does the court consider when making professional or is the decision taken by the Judge alone? If orders in relation to children? so, does the child meet the Judge?

Section 28(2) of the Constitution of the Republic of South Africa, A court will look towards input/recommendations by an expert 1996 (6) provides that a child’s best interests are of paramount (psychologist, social worker, etc.) or the Office of the Family importance in every matter concerning the child. Section 7(1) of the Advocate whose mandate will derive from the court order. The Children’s Act 38 of 2005 sets out the factors for a court to consider latter is a neutral institution (with Family Advocates/legal officers when having to apply the best interest of the child standard. employed by the Department of Justice) which renders services to the public free of charge. 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? 6.10 Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a Each co-holder of parental responsibilities and rights may act lawyer? without the consent of other co-holders except where the Act requires otherwise – Section 30 of the Act. In respect of certain The Constitution of the Republic of South Africa 108 of 1996 major decisions, Section 31 requires that due consideration be given guarantees children the right to be heard through a legal practitioner. to the views and wishes of co-holders of parental responsibilities Section 14 of the Act provides that every child is entitled to bring/be and rights and includes any decision which is likely to change assisted in bringing a matter to a court, provided that the matter falls significantly, or to adversely affect, the co-holder’s exercise of within the jurisdiction of that court. Section 55(1) of the Act obliges parental responsibilities and rights. Section 18(3) provides that all a Children’s Court to refer a matter to Legal Aid South Africa (state- guardians of a child must consent to: funded assistance for the poor/vulnerable) where a child is (i) the child’s marriage; unrepresented, if in the court’s opinion it would be in the best inter- (ii) the child’s adoption; ests of the child to have legal representation. Generally, a child’s (iii) the child’s departure or removal from the Republic; parents assist the child, but in certain instances this is not possible (iv) the child’s application for a passport; and and/or desirable. In terms of Section 6 of the Divorce Act 70 of (v) the alienation or encumbrance of any immovable property of 1979, in safeguarding the interests of dependant and minor children, the child. the court in a divorce action may appoint a legal practitioner to A parent cannot travel abroad with a minor child unless a co- represent a child at the proceedings and may order the parties (or holder of parental rights and responsibilities has consented thereto one of them) to pay the costs of the representative. in writing. The appointment of a curator ad litem is also becoming prevalent. The curator ad litem, while assisting the court and the child during the 6.7 Is there a presumption of an equal division of time legal process, advances the child’s best interests and reports to the between separating or divorcing parents? court on any pertinent facts and circumstances, as opposed to a legal representative who takes instructions from the child and represents The overriding principle in disputed contact and care matters is the the child’s views. best interests of the child. Having full parental rights and responsibilities in respect of a child does not translate into a 6.11 Do any other adults have a say in relation to the presumption of equal division of time. Relevant factors to be arrangements for the children? E.g. step-parents or considered include (but are not limited to): the nature of the grandparents or siblings. What methods of dispute resolution personal relationship between the child and the parent(s); the are available to resolve disputes relating to children? capacity of the parent(s) to cater for the needs of the child (including emotional and intellectual needs); the effect on the child of any change in the child’s circumstances, in particular separation from one The views of interested/collateral parties may be taken into account or both of the parents or a sibling; the age, level of maturity and in contact/care disputes, e.g. through interviews by experts conducting assessments into the best interests of children. Third parties may by way of application to court acquire/be assigned

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parental rights and responsibilities where a myriad of factors would South Africa) and international relocations. This decision is untested be taken into consideration in determining whether it would be in and does not depart significantly from the considerations and legis- the child’s best interests, including but not limited to: the relationship lation referred to above. It demonstrates how different considerations between the applicant, and any other relevant person, and the child; may be relevant in a particular matter. The court distinguished the degree of commitment shown by the applicant towards the child; between international and national relocations. Nationally, a the contributions made by the applicant towards expenses in relocated child would generally be no more than five hours’ travel connection with the birth; and maintenance of the child. away from the left-behind parent, versus much longer travel distances Co-holders of parental rights and responsibilities experiencing in international relocations. The court considered international difficulties in the exercise of these rights are obliged in terms of the relocations to be more drastic. In casu, deference was given to Act to seek the assistance of the Office of the Family Advocate or custodian parent’s bona fide and rational wish to relocate. a social worker or, alternatively, enter into a mediation process through a social worker or suitably qualified person before 7.5 In practice, how rare is it for the custodial parent to be embarking on litigation. allowed to relocate internationally/interstate?

7 Children – International Aspects The facts and circumstances of each case will be taken into account. It has been held (also referred to in M, TP v P, DMI, at question 7.4 7.1 Can the custodial parent move to another state/country above) that “..it is not to say that the opinion and desires of the custodian without the other parent’s consent? parent are to be ignored..”. The child’s best interest consideration is a broad enquiry that takes into account all relevant factors, including Section 7 of the Children’s No. Permission for relocation of minor children abroad (to another Act. A primary parent may wish to relocate; however, other factors Country or State) is governed by Sections 18(3)(c)(iii) and 18(5) of such as the impact of relocation on the children and loss of contact the Children’s Act (38 of 2005). In terms of these provisions, (inter with the other parent will also be relevant. The fact that the alia) both parents’ consent is required for removal of a minor child “custodial or primary parent” may wish to relocate is not a singular from South Africa. If one co-holder of full parental rights and decisive factor to determine the child’s best interests. responsibilities refuses or fails to provide consent, the other parent Investigations by qualified experts who furnish recommendations can approach the High Court of South Africa, (the upper guardian regarding the children`s best interests are the norm in contested of minor children within its jurisdiction), for assistance. relocation matters in South Africa. The child’s best interests are paramount in all matters concerning the child. This is entrenched in the South African Constitution (see 7.6 How does your jurisdiction deal with abduction cases? Section 28(2) of Act 108 of 1996). The High Court may grant an order for removal of the child abroad in the absence of consent of For example, is your jurisdiction a party to the Hague one of the parents. Such an order is likely to follow where the Convention? request is bona fide and/or consent has been unreasonably withheld and/or it is determined, by the court, to be in the child’s best inter- Yes, South Africa ratified the Hague Convention on the Civil Aspects ests to do so. of International Child Abduction. The Act (Act 720/1996) came into operation on 1 October 1997. 7.2 Can the custodial parent move to another part of the In terms of Article 6, the office of the Chief Family Advocate in state/country without the other parent’s consent? South Africa acts as designated Central Authority, assisting in both outgoing (unlawful removal) and incoming (unlawful retention) Hague cases. Application can be made to the Central Authority for No. The same considerations and procedures referred to in question the return of the child or access/contact. 7.1 apply to permanent, regional relocations of minors.

8 Overview 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? A High Court as upper guardian of minor children is under a duty, when resolving disputes regarding children (including disputes about Question 8.2 below refers to some of the important aspects care, contact and relocation) to ensure that the children’s best inter- presently being considered in South Africa. ests are served. In addition to Section 28(2) of the Constitution, In a recent case, the Supreme Court of Appeal considered the Section 7 of the Children’s Act sets out a list of factors that must be validity and enforceability of a waiver of the right to claim mainten- taken into consideration to determine the child’s best interests. Other ance upon dissolution of the marriage which was contained in an factors may be specifically relevant to relocation, such as the bona fides antenuptial (pre-nuptial) agreement. In casu ST v CT (Judgment on 27 of the relocating parent and the impact of the relocation on contact. February 2018 SCA Bloemfontein Case Number 1224/16) the SCA, (in a matter where Miller Du Toit Cloete Inc represented the 7.4 If the court is making a decision on a child moving to a plaintiff/wife in the Western Cape High Court and the SCA) held different part of the state/country, what factors are taken into that the waiver in the antenuptial contract regarding maintenance account? was invalid and unenforceable. The Judgment includes different reasons for this finding; see paragraphs 170–196 of the Judgment. The court also found that a living annuity does not form part of a The same factors as set out in question 7.1. party’s estate for purposes of an accrual calculation on dissolution. In a recent decision of the Gauteng Local Division of the South On the issue of parent co-ordination/facilitation developments African High Court, in M TP v P DM (Case number: 1917/2018 - are underway to, inter alia, contextualise and circumscribe the roles 1/2/2019) the court distinguished between local relocations (within and powers of parent coordinators. See Van der Merwe v Van der

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Merwe (Case number 12624/2018), Western Cape High Court, and TC v Christel Beukes qualified with a B. Proc in 1999 and an LL.B. in SC (Case number 20286/2017), Western Cape High Court. 2000 (both from the University of the Free State). She was admitted as an attorney in 2003 in Bloemfontein and obtained her right of 8.2 What are some of the areas of family law which you think appearance in the Western Cape High Court in 2005. Christel has should be looked into in your jurisdiction? practised as a specialist family law attorney since 2010. Email: [email protected] Samantha Lewis qualified with an LL.B. in 2010 and LL.M. in The following areas should be looked into: 2011 (both from the University of the Western Cape). Prior to ■ The general procedures to expedite divorce litigation including commencing her articles, she was a graduate lecturing assistant in the financial disclosure. Department of Private Law at the University of the Western Cape. ■ The Code of Conduct for attorneys, cohabitation relationships Samantha was admitted as an attorney of the Western Cape High and the status thereof. Court in 2012. She has a keen interest in and practical understanding ■ The status and legal recognition of religious marriages. of artificial reproductive technologies (“ART”) and the ever-evolving ■ Alternative despite resolution forums. legal conundrums that flow therefrom. Her experience in this regard ■ The implementation and governance of surrogacy agreements includes, but is not limited to, the drafting and implementation of and related aspects. South African and cross-border surrogacy agreements. She remains an ardent researcher and in addition to having written and presented Acknowledgments papers at our annual conference, she has also co-written and presented a paper with Zenobia du Toit on Co-Habitation/Domestic The authors would like to thank Yumna Mookrey, Lorinda Venter, Partnerships in South Africa for the International Academy of Christel Beukes, Samantha Lewis and Rachel Sloth-Nielsen for their Family Lawyers Annual Conference (New-Delhi, India 2016) invaluable contributions to this chapter. and with Advocate Julia Anderssen of the Cape Bar on Contact and Yumna Mookrey graduated with a B.A. Degree in 1992 and an Care in South Africa, which they presented at a training workshop LL.B. degree in 1995 (both from the University of Cape Town). attended by Regional Court Magistrates in 2012. Her paper titled She was admitted as an attorney in 1997 in the Western Cape. In “A Synopsis of Surrogacy Agreements in South Africa” was published in 2004 she was also admitted as a conveyancer. She has specialised in the 2015 International Association of Family Lawyers Annual and family law since 2004. She has a particular interest in Hague her paper short titled “The Importance of the Genetic Link” was Convention- and child-related disputes/matters. Yumna is also a published in the 2015 International Bar Association’s Annual mediator. She has attended various international law conferences Committee Newspaper. and has presented papers internationally, including A Commentary Email: [email protected] on the draft Namibian Child Care and Protection Act (Windhoek, Rachel Sloth-Nielsen qualified in 2017 with a B.A. LL.B. from the Namibia 2009) and antenuptial contracts at the LAWASIA University of Stellenbosch. She is currently completing her LL.M. conference (Penang, Malaysia 2012). at the University of Cape Town while simultaneously working as a Email: [email protected] candidate attorney at Miller du Toit Cloete Inc. Her first article, Lorinda Venter qualified with an LL.B. in 2005 from the “Genital Normalisation and in the Best Interest of the Child ”, was University of Stellenbosch and was admitted as an attorney in published in the University of Stellenbosch Law Review in 2018. December 2007. Lorinda has also completed her South African Family Arbitration Training Course in 2016. Previously having worked in a general litigation environment, and more specifically collections, Lorinda decided to change directions in 2015 when she joined the Miller du Toit team and has been practising as a specialist family law attorney since then. Email: [email protected]

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Zenobia du Toit obtained her B.A. LL.B. from the University of Stellenbosch, and was admitted as an Attorney in April 1982. She is a director and founder of Miller du Toit Cloete Inc and has worked exclusively in family law, human rights, ART, children’s rights, gender equality, pre- and post-marital agreements, matrimonial property matters, civil unions, religious marriages, customary marriages, domestic relation- ships, same sex unions, family violence and related constitutional law and commercial law issues from 1 April 1998 onwards, dealing with matters from various jurisdictions. She has presented at various workshops, institutions and conferences, regarding developing family law and comments regularly on draft Bills to Government and the Law Commission in South Africa. She is a past chair of the IBA Family Law Committee, a member of the IAFL, a member of the Hague Conference Art 13(1)(b) Working Group on the Hague Convention of the International Abduction of children, a past member of the Family Law Committee of the Cape and National Law Society and member of other expert committees. She writes articles and has acted as co-editor of publications relating to family law.

Miller du Toit Cloete Inc Tel: +27 21 418 0770 Suite 1002, 10th Floor Email: [email protected] 80 Strand Street URL: www.mdtcinc.co.za Cape Town South Africa

Sandra Van Staden is a director at Miller du Toit Cloete Inc. She qualified with a B. Proc from the University of Port Elizabeth (now NMMU) and was admitted as an attorney in 1994. She was admitted as a conveyancer in 1996 and followed this with her notary qualification in 2005. Sandra has over 20 years of pure family law experience and has a particular interest in financial disputes and ADR. Sandra is a member of the International Academy of Family Lawyers (“IAFL”) and the International Bar Association (“IBA”), until recently served as a member of the Cape Law Society Family Law Committee and comments on draft Bills relating to family law to Government and the Law Commission from time to time.

Miller du Toit Cloete Inc Tel: +27 21 418 0770 Suite 1002, 10th Floor Email: [email protected] 80 Strand Street URL: www.mdtcinc.co.za Cape Town South Africa

Miller du Toit Cloete Inc is a leading national and international specialist family law firm, that has participated innovatively in the development of all aspects of family law for many years. The firm continues to develop its strong expertise, strategic thinking and negotiation skills. It is based in Cape Town, South Africa. www.mdtcinc.co.za

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Spain Spain

Arbáizar Abogados Amparo Arbáizar

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

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Article 769 of the Spanish Law of the 1.7 Does your jurisdiction allow separation or nullity competent Court in Spain to make orders in matrimonial and child proceedings? proceedings: ■ First instance Court of the matrimonial residence, last matrimonial residence, respondent’s residence and if it cannot Yes, they do. be found, the petitioner’s residence. Separation proceedings are treated like divorce proceedings. ■ Agreement on divorce: First instance Court of the last The grounds for nullity are different and it is much more difficult matrimonial residence or residence of any of the petitioners. to obtain than a divorce or separation decree. Only for childcare arrangements proceedings (custody and main- tenance): 1.8 Can divorce proceedings be stayed if there are ■ First instance Court of the parent’s last residence. If the parents proceedings in another country? live in different countries, the petitioner can choose 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 Otherwise, the “Declinatoria” proceedings, due to a lack of inter- uncontested divorce? national 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 2 Finances on Divorce proceedings three months after the marriage. These three months will not be required in cases where there is a danger to the petitioner 2.1 What financial orders can the court make on divorce? or the children. Yes, the parties can have an uncontested 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. In the case of the separation of assets matrimonial regime, a need to attend court and is it possible to have a “private” compensation order to the spouse for his/her dedication to the divorce, i.e. without any court involvement? family which has produced a corresponding loss of professional opportunities, as well as a financial order to put an end to the joint Yes, they do if they have children together, since only the Courts can properties of the spouses, can both be made on divorce. make child arrangement orders. They can sign the agreement before a notary public if they do not have any children and therefore obtain 2.2 Do matrimonial regimes exist and do they need to be directly the Divorce Absolute. addressed by the court on divorce? Is there a default

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

■ Navarra: Matrimonial company of conquests “Sociedad conyugal 1.6 Are foreign divorces recognised in your jurisdiction? If de conquistas”. so, what are the procedural requirements, if any? ■ Parts of Extremadura: Community of assets “Fuero del Baylío”.

Yes, they are directly recognised by all parties of the Brussels II a 2.3 How does the court decide what financial orders to Regulation. make? What factors are taken into account? Otherwise, a foreign divorce will be recognised in an “Exequatur” proceeding on grounds of international/bilateral conventions or on The choice of orders on divorce is ruled in the Spanish Civil Code a mutual recognition basis. and the Spanish Law of Civil Procedure rules on how to obtain them

from the Court.

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The Divorce Court Order must rule parental responsibility and all After a divorce, it is normally expected that each spouse supports the child arrangement issues including, but not limited to: mainten- him or herself. ance; custody; right of access; and use of the matrimonial home. The main aim of these orders is to help the ex-husband or ex-wife The Court will only order spousal maintenance obligations if it is maintain the same “standard of living as during the marriage”. The requested in the divorce petition. main criteria for spousal maintenance are: if the divorce produces After the Divorce Decree any ex-spouse can issue court proceed- an adverse economic imbalance to one of the spouses; and if there ings to liquidate the matrimonial property regime. has been a loss of professional opportunities because of the Interim measures order on maintenance, custody, rights of access marriage. The age, health, duration of the marriage and the career and use of the family home during the divorce proceedings must prospects and ability to earn a living of the spouse are also taken into also be requested by any party to the divorce petition and not more account. than 30 days before the divorce petition is lodged. The compensation usually consists of temporary maintenance payments for a couple of years but a single payment can be also 2.4 Is the position different between capital and taken into account. Lifelong spousal maintenance orders are rare and only apply in maintenance orders? If so, how? cases in which the marriage was very long and the spouse is of an age with no prospects to earn a living after having invested his/her The position of the Court is a little bit different. The aim of main- life in the family welfare. tenance orders is to redistribute the family incomes in order to minimise the effects of the divorce mainly upon the children’s costs 2.7 Is the concept of matrimonial property recognised in and expenses and, secondarily, upon the spouses. The spouse with the larger income must pay more child maintenance and, eventually, your jurisdiction? maintenance to the other spouse. Maintenance obligations between spouses are not commonplace. Please see question 2.6 below. Yes, it is. There are three matrimonial property regimes recognised Capital orders are made regarding the rules of the liquidation of in the Spanish Civil Code: joint ownership of assets; separation of the matrimonial property regimes of the Spanish Civil Code. The assets; and participation in acquisitions. assets and liabilities of the marriage will be split between the spouses Joint ownership of assets: the acquisitions obtained by each of following these articles in quite an impartial manner. the spouses during the marriage are common and divided equally The exception is the matrimonial property regime of the separ- when the matrimonial property is liquidated. The assets that each ation of assets. If there is no matrimonial property, on divorce, the spouse brought into the marriage and those inherited or acquired Court can issue an order to compensate one of the spouses for gratuitously afterwards are considered personal property of each his/her dedication to the family which has produced a spouse. corresponding loss of professional opportunities. Separation of assets: each spouse retains what he/she brought We must take into account whether the couple has children and into the marriage and becomes the sole owner of the property whether they have entered into a matrimonial property regime other acquired during the marriage. Where it cannot be established to than the separate ownership of assets. whom the property belongs, there is a presumption of a half share If the couple has children, maintenance orders must be made by for each spouse. the Court on divorce, regardless of whether there is an agreement Participation of acquisitions: each spouse retains what he/she or not. If there is an agreement, the Judge and the “Ministerio Fiscal ” brought into the marriage and becomes the sole owner of property (see question 6.4 below) must approve the settlement protecting the he/she acquired during the marriage. At the end of the marriage, child’s best interest. the acquisitions made will be calculated and each spouse is entitled If the couple lived under a separate ownership of assets, on to a share of the acquisitions made by the other spouse during the divorce, the Court can issue an order to put an end to the joint marriage. This regime is rather unusual in Spain. properties of the spouses and to compensate one of the spouses for There are other matrimonial property regimes recognised under his/her dedication to the family which has produced a corresponding the family law of some autonomous communities, as explained in loss of professional opportunities. question 2.2.

2.5 If a couple agrees on financial matters, do they need to 2.8 Do the courts treat foreign nationals differently on have a court order and attend court? divorce, if so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of A couple without children that agrees on financial matters can sign the jurisdiction? an agreement in a Deed in front of a Spanish notary public on divorce regarding spousal maintenance obligation and liquidation of Spain is a party of the Council Regulation (EU) No. 1259/2010 matrimonial property regime. of 20 December 2010 implementing enhanced cooperation in the A couple with children must always issue divorce proceedings area of the law applicable to divorce and legal separation, known as before the Court to obtain maintenance orders and the use of the the “Rome III Regulation”. This Regulation shall apply in conflicts family home. of laws on divorce between participating Member States. After the divorce, a couple that agrees on financial/capital matters Article 107.2 of the Spanish Civil Code rules the applicable law can sign, in front of a Spanish notary public, a Deed of liquidation on divorce for foreign nationals and it has been reformed to of the matrimonial property regime. They do not need to have a converge with the grounds as set out in “Rome III Regulation”. Court Order or to attend Court. The Deed of liquidation of the Spain has opted in to the 2007 Hague Protocol of the EC matrimonial property regime can be directly enforced by the Courts Regulation No. 4/2009 in relation to maintenance as set out in in Spain as a Court Order. article 15. The general rule (article 3) on applicable law in accord- ance with the 2007 Hague Protocol on the applicable law to 2.6 How long can spousal maintenance orders last and are maintenance obligations shall be the law of the State of the habitual such orders commonplace? residence of the creditor. According to articles 7 and 9 of the

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Spanish Civil Code, the applicable law to maintenance obligations Regional Code contains the rules of the “fiducia continuada” which is shall be ruled by the 2007 Hague Protocol. quite similar to the trust. Spain is a party of the Council Regulation (EU) No. 2016/1103 There are different civil law contracts which can be selected on a of 24 June 2016, implementing enhanced cooperation in the area of case-by-case basis to obtain the same purpose as with a trust: jurisdiction, applicable law and the recognition and enforcement of donation; agency; company; mortgage; foundation; mandate; and decisions in matters of matrimonial property regimes and the protected properties for the disabled, etc. Council Regulation (EU) No. 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, 2.11 Can financial claims be made following a foreign applicable law and the recognition and enforcement of decisions in divorce in your jurisdiction? If so, what are the grounds? matters of the property consequences of registered partner- ships. These Regulations shall apply in conflicts of laws between participating members to marriages or civil partnerships performed The foreign divorce must be recognised by the Spanish Courts. after 29 January 2019. The financial claim must be related to immovable assets situated Otherwise, the Spanish Civil Code rules in articles 2–3 and 9, that within the Spanish jurisdiction upon which the foreign Judge did not the applicable law to the matrimonial regimes is determined by: have jurisdiction to rule. ■ Common nationality when they got married. It might also consist of liquidating a Spanish property regime ■ Public Deed choosing between the national law/habitual before the Spanish Courts if it was not decided in the foreign residence of any spouse. Divorce Decree. ■ First common habitual residence after the marriage. This is not commonplace. ■ Country where the marriage took place. Foreign law can be applicable by the Spanish Courts, subject to 2.12 What methods of dispute resolution are available to the proof of the Foreign Law by the party who seeks its application. resolve financial settlement on divorce? E.g. court, How to give evidence of the Foreign Law before the Spanish mediation, arbitration? Court: 1. Content and validity of the Foreign Law: by a public document issued by the Embassy in Madrid or the Spanish Embassy in the Court and mediation are the most common now whilst arbitration foreign country. and collaborative law are not as common. 2. Application of the Foreign Law to the specific case: two different expert reports (foreign lawyers) explaining to the 3 Marital Agreements Spanish Judge how the Foreign Law would be applied to this case by the foreign Court. There is the risk that, if the Judge considers that the Foreign Law 3.1 Are marital agreements (pre and post marriage) was not sufficiently proved, Spanish law will be directly applied. enforceable? Is the position the same if the agreement is a foreign agreement? 2.9 How is the matrimonial home treated on divorce? The marital agreements are recognised as private contracts under the The children remain in the matrimonial home with the spouse who Spanish law and are therefore binding for the contracting parties if has custody of them. they are not against the child’s best interest and the Spanish “ordre In the case of shared custody, the children remain in the public”. The marital agreement will be enforceable when included in matrimonial home with the spouse who has more difficulty in a Court Order after the divorce proceeding. earning a living and the spouse whose financial situation is better The foreign marital agreement can also be recognised as a private must find a new home. When both spouses are in a similar financial contract subject to evidence of the Foreign Law before the Court. position, the children will live each period of shared custody in each It can be enforced if the Court recognises its terms and conditions parent’s new home. The parents can then put an end to the and includes them in the Court Order. matrimonial joint property. The marital agreement can be directly enforceable if it is granted If there are no children, the spouse who is in a weaker financial in a Deed in front of a Spanish notary public. position remains in the matrimonial home until he/she can have access to another home. The Divorce Decree can determine how 3.2 What are the procedural requirements for a marital long this spouse might remain in the matrimonial home. agreement to be enforceable on divorce?

2.10 Is the concept of “trusts” recognised in your The marital agreement must first be approved by the Court on jurisdiction? If so, how? divorce and included in the Divorce Decree, which can be enforced afterwards. No, it is not. Spain is not party to the Hague Convention of 1985. The marital agreement could be directly enforced on divorce if it A foreign trust can be recognised by the Spanish Court subject to was granted in a Deed in front of a Spanish notary public and the strong evidence of the Foreign Law (as explained in question 2.8) so couple does not have children. that the Spanish Judge can understand the content, legal nature, instrumentality, purpose, etc. of the trust in this specific case. 3.3 Can marital agreements cover a spouse’s financial There are some Spanish legal instruments similar to trusts, such claims on divorce, e.g. for maintenance or compensation, or as investments funds, pension funds, protected properties for the disabled, etc. are they limited to the election of the matrimonial property The Spanish foundation (“fundación”) must have a general interest regime? purpose but its legal frame is similar to the trust. In the Spanish Law of Succession, the “fideocomiso” is similar to a Marital agreements can cover a spouse’s financial claims on divorce, trustee as outlined in article 781 of the Spanish Civil Code and article e.g. maintenance. Compensation can be agreed in cases where 426 of the Catalonian Civil Code. Law 293 of the Navarra New

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couples choose the separation of assets matrimonial property The incomes of each parent are also taken into account when regime. considering maintenance and which spouse remains in the The election of the matrimonial property regime must be granted matrimonial home. in a Deed in front of a Spanish notary public. The Spanish General Council of Justice has produced an illus- trative table of child maintenance calculation for the Courts, lawyers, 4 Cohabitation and the Unmarried Family parents, etc. The main aim is to facilitate the estimation of child maintenance nationwide to encourage agreements between the parents. 4.1 Do cohabitants, which do not have children, have financial claims if the couple separate? What are the grounds 5.3 For how long is a parent required to pay child 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 cohabitant 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 (for other cases, such as to protect disabled children. example, civil partnerships, PACS)? 5.5 Can a child or adult make a financial claim directly The formal partnership status for cohabitants is not regulated in the against their parents? Spanish Civil Code or at a national level. Some autonomous communities have produced their specific laws An adult can make a claim for financial support directly against their on partnership with legal provisions for the existence of a partner- parents when he/she is older than 18 and the child maintenance ship register: Andalucía; Aragón; Asturias; Balearic Islands; Basque obligation has ended. Country; Canary Islands; Castilla-La Mancha; Castilla y León; The child’s maintenance obligation claim is made between the Extremadura; Galicia; Madrid; and Valencia. parents on behalf of their children. Catalonia only provides for municipal registers. The existence of

a partnership is proved by means of an authentic/notarial Deed. Each autonomous community regulates the register in a different 6 Children – Parental Responsibility and way, and the effects of registration range from being simply Custody declarative to having practical equivalence with marriage. Some autonomous communities do not provide for such a regional register. 6.1 Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried? 4.4 Are same-sex couples permitted to marry or enter other formal relationships in your jurisdiction? In Spain, “rights of custody” actually refers to “parental responsibility” which is for both parents. When they cannot agree on an issue, they must take the matter to a Court which will issue an

Yes, they can marry and adopt children or adopt a civil partnership. order stating which parent decides this specific matter. Parental responsibility will not be affected by a divorce. The 5 Child Maintenance Court must decide at the time of the divorce which parent the child lives with (custody) and which parent has the “right of access”. However, it should be noted that the usual order is one of “shared 5.1 What financial claims are available to parents on behalf custody”. of children within or outside of marriage? There is no difference between married or unmarried parents to exercise the rights of custody. Child maintenance and use of the matrimonial home are available. There is no difference within or outside of marriage. 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 when they are 18 years administered by the court or an agency? 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 Child maintenance can only be calculated and administered by the be heard before if he/she shows enough maturity. Court. The costs and expenses of the child, such as upbringing, clothing, 6.3 What is the duration of children orders (up to the age of education, healthcare, etc. must be estimated. 16 or 18 or otherwise)?

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Children orders can be made until the children are 18 years old. 6.9 Is a welfare report prepared by an independent Normally, however, they stop at the age of 16, because at this age it professional or is the decision taken by the Judge alone? If is useless and counterproductive to oblige a child to visit or live with a parent if he/she does not want to. so, does the child meet the Judge?

6.4 What orders can the court make in relation to children? Most Family Courts have a psychologist that prepares a welfare report upon the request of the parents, the Ministerio Fiscal or the Does the court automatically make orders in relation to child Judge. arrangements in the event of divorce? The Judge will meet the child if he/she is 12 years old or older. If they are much younger, the Judge will only take into account the Maintenance orders, parental responsibility orders, custody orders, welfare report to avoid disturbing the children too much with the right of access orders, national and international relocation orders divorce proceedings. and payment orders of reimbursement of extra costs and expenses The Judge will ensure that his decision meets the Ministerio Fiscal made on the child’s behalf and not included in the maintenance report. obligation. If the parents must make a decision concerning the child and they 6.10 Is there separate representation for children in your cannot agree, they must issue a proceeding and the Court will issue jurisdiction and, if so, who would represent them, e.g. a an order stating which parent can decide in this specific matter (for example, religious issues, medical treatments, surgery, choice of lawyer? school, etc.). Yes, the Court must automatically make a child arrangements The Ministerio Fiscal must always be invited by the Court to proceed- order on divorce. The “Ministerio Fiscal” must be invited to the ings relating to children, to defend the child’s best interest. The divorce proceedings to protect the child’s best interest. They Ministerio Fiscal cooperates closely with the Court and has a similar represent the Spanish Authorities’ protection of the child’s best education and professional background to a Judge but they are not interest. The Ministerio Fiscal cooperates closely with the Court and independent because they are Spanish Government Civil Servants. has a similar education and professional background as a Judge; They represent the Spanish Authorities’ protection of the child’s best however, they are not independent because they are Spanish interest. Government Civil Servants. Otherwise, the children are represented by their parents until they A parent can also request the Court to order interim measures are 18 years old. regarding maintenance, custody, rights of access and use of the family home until the Divorce Decree is produced. 6.11 Do any other adults have a say in relation to the

arrangements for the children? E.g. step-parents or 6.5 What factors does the court consider when making grandparents or siblings. What methods of dispute resolution orders in relation to children? are available to resolve disputes relating to children?

The main factor is the child’s best interest. They also take into Grandparents, siblings and other close relatives (also step-parents) account the child’s opinion when he/she is older than 12 years and have the right to be in contact (right of access) with the children, also the welfare report. according with article 160.2. of Civil Code. At present, the principal method is mediation. There are also 6.6 Without court orders, what can parents do unilaterally? some collaborative lawyers. For example, can they take a child abroad? 7 Children – International Aspects Both parents almost always have the children’s parental responsibility; therefore, they must agree in almost every important decision relating 7.1 Can the custodial parent move to another state/country to their children’s welfare. They can take a child abroad on holidays unilaterally. They must without the other parent’s consent? inform the other parent; however, his/her permission is not required. No, he/she cannot do it in any event.

6.7 Is there a presumption of an equal division of time 7.2 Can the custodial parent move to another part of the between separating or divorcing parents? state/country without the other parent’s consent?

The tendency now, is to grant shared custody to both parents if at No, he/she cannot do it in any event. least one of them applies for it and it is in the child’s best interest. 7.3 If the court is making a decision on relocation of a child 6.8 Are unmarried parents treated in the same way as abroad, what factors are taken into account? married parents when the court makes orders on separation or divorce? The child’s best interest is taken into account, as well as the age of the children, wider family support in the new country, better They are equally treated in relation to parental responsibility, child education opportunities and whether there will eventually be a better arrangements and use of the family home. standard of living in the new country.

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7.4 If the court is making a decision on a child moving to a The EU Regulation on Matrimonial Property Regime and the EU Regulation on Property of the Registered Partners have been different part of the state/country, what factors are taken into applicable in Spain and other Member States since 29 January 2019. account? The most significant development is the Spanish High Court of Justice (Tribunal Supremo) case law establishing shared custody as The child’s best interest is taken into account, as is the distance most beneficial for the child’s best interest. between the former and new residence which would facilitate the There is a draft bill to rule pets in family disputes, which will other parent to meet the child. Better employment opportunities for modify some articles of the Civil Code. the parent who wants to move, as well as wider family support in the new place are also taken into account. 8.2 What are some of the areas of family law which you think

should be looked into in your jurisdiction? 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? ■ We need a nationwide Registered Civil Partnership Law (PACS) (please see question 4.3). If both parents are foreigners, it is easier to relocate internationally. ■ I am in favour of regulating surrogacy in Spain, which is If one parent is Spanish, and therefore the child is too, it is more currently prohibited. difficult. ■ Family law experts request a better ruling of the use of the The main ground to allow relocation in Spain is a better job with family home on divorce and separation in the Civil Code articles. better financial prospects for the custodial parent when the earnings ■ Spain comprises several territorial units, some of which have of the left-behind parent are not relevant and it would provide a their own rules of law in respect of family and succession. better standard of living to the children. Please see question 2.2. This situation affects the applicable law Other factors are the distance between the left-behind parent and regarding the “EU Regulation on Succession” and the “EU the new home, the existence of wider family support in the new Regulation on Matrimonial Property Regime” and treats Spanish residence, etc. nationals and other Member States nationals differently. ■ Articles 9 and 8 of the Spanish Civil Code must be amended to 7.6 How does your jurisdiction deal with abduction cases? be in accordance with the EU Succession Regulation’s general For example, is your jurisdiction a party to the Hague rule on applicable law: the law of the State in which the deceased had his/her habitual residence at the time of death (not the Convention? deceased’s nationality). ■ Articles 8 and 9 of the Spanish Civil Code must be amended to Spain is a party of the Hague Convention and of the Brussels II a be in accordance with the “EU on Succession” and the “EU Regulation. Regulation on Matrimonial Property Regime” which rule that Articles 778 quáter – 778 sexies of the Spanish Law of Civil the applicable law to the succession rights of the widowed Procedure rule the return proceedings in Spain between party States spouse is the law of the succession (not the law of the in cases of the wrongful removal or retention of the child. matrimonial effects). The Spanish Central Authority is the Ministerio de Justicia – Servicio de Convenios. Address: Calle San Bernardo, nº 62 – E- 28071, Madrid Tel: +34 91 390 4437 Email: [email protected]

8 Overview

8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years?

There have not been any new laws in Spain in the last two years regarding the Family jurisdiction.

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

Arbáizar Abogados Tel: +34 965 03 09 96 / +34 678 50 88 91 Avenida Maisonnave, 41 – 7º H, E- 03003 Alicante Email: [email protected] Spain / URL: www.arbaizarabogados.com Calle Kandinsky, 4 – 2º B, E- 29010 Málaga Spain

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

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Switzerland Switzerland

Borel & Barbey Sonia Ryser

1 Divorce Even in cases in which both parties are in full agreement, the spouses must appear in person at a divorce hearing. The judge is required to hear them separately, then together, and 1.1 What are the grounds of jurisdiction for divorce must ensure that they have filed their application and concluded their agreement willingly and after careful consideration and that the proceedings? For example, residence, nationality, domicile, agreement and conclusions relating to their children can be approved etc.? before the decree is issued.

In domestic cases, the courts at the domicile of one of the two 1.4 What is the procedure and timescale for a divorce? spouses have sole jurisdiction to rule on any application based on family law as well as on requests for provisional measures. In cases with an international context, the following courts have The Swiss Code of Civil Procedure provides for special procedural jurisdiction to hear divorce proceedings: the Swiss courts of the rules for family law disputes. One of the peculiarities of Swiss respondent’s domicile; the Swiss courts of the petitioner’s domicile, procedure is that matters relating to children and the question of the if the petitioner has resided in Switzerland for one year at least or is spouses’ pension rights must be examined ex officio by the judge, a Swiss national; and, where the spouses are not domiciled in regardless of the position of the parties or even where the parties Switzerland and one of them is a Swiss national, the courts of the have reached agreement on these subjects. place of origin will have jurisdiction if the proceedings cannot be An amicable divorce can be finalised within a few months, while brought in the forum of another jurisdiction (domicile of one of a contentious divorce can take several years in Geneva. the spouses) or if the parties cannot reasonably be required to bring the action in a non-Swiss forum. 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances. 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an In principle, in its decision, the court also rules on the associated uncontested divorce? effects of the divorce. The general rule is that the court’s ruling in divorce matters is global in scope. If the spouses have reached full agreement in principle regarding However, a partial decision limited to the principle of divorce divorce, they may at any time petition for divorce by joint application does not violate this principle. and produce a complete or partial agreement on the effects of the Where they are able to show good cause, the spouses may request divorce (parental rights, child maintenance, spousal maintenance, the court to rule in separate proceedings on the termination of their liquidation of the matrimonial regime, division of the pension matrimonial regime. The allocation of their pension rights may also rights), in which case the judge will resolve the aspects as to which be referred in its entirety to separate proceedings where pension the parties still disagree. rights abroad are concerned and a decision on the division of such In the absence of an agreement in principle between the spouses rights can be obtained in the State in question. regarding divorce, one spouse may apply on his or her own for Moreover, a divorce may be finalised in Switzerland without the divorce if the spouses have lived apart for at least two years. A questions relating to children being settled, where general jurisdiction spouse may also petition for divorce before expiry of the two-year over matters relating to children are vested in the authorities at the period if there are serious reasons beyond his or her control place of the child’s habitual residence. rendering continuation of the marriage untenable, but the conditions for this are extremely restrictive. 1.6 Are foreign divorces recognised in your jurisdiction? If so, what are the procedural requirements, if any? 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” Subject to existing international Conventions between Switzerland divorce, i.e. without any court involvement? and the other countries in question, as a general principle, foreign divorce decisions are recognised in Switzerland when they have been It is not possible to undergo a “private” divorce without the inter- rendered in the country of the spouses’ domicile or habitual vention of a court. residence, or in the national courts of the state of one of the

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spouses’ nationality, or if they are recognised in one of these coun- Child support is determined based on the financial situation of the tries. However, a decision rendered in a country of which neither parents and the children and the agreed custody arrangements. of the spouses or only the petitioner is a national will only be Spousal maintenance is determined based on the specific circum- recognised in Switzerland in the following cases: if at the time the stances of the case (in particular the length of the marriage, division application is made, at least one of the spouses was domiciled or had of labour, childcare) and the financial situation of the parties (family his or her habitual residence in that state and the respondent was not income and expenses, lifestyle during marriage, savings, debts, hypo- domiciled in Switzerland; where the respondent has submitted to the thetical income and earning capacity (in particular according to age, jurisdiction of the foreign court without reservation; or where the health, education, professional experience, wealth, expectations, etc.). respondent has expressly consented to the recognition of the With regard to the spouses’ pension rights and termination of the decision in Switzerland. matrimonial regime, Swiss law provides rules governing how these However, Swiss courts will refuse to recognise a foreign divorce aspects should be dealt with by the judge. if it violates Swiss public policy. In practice, in order to obtain recognition of a foreign divorce 2.4 Is the position different between capital and decree, it will be necessary to contact the competent civil registry maintenance orders? If so, how? office in Switzerland and submit the requisite documents in order to register a divorce decree issued abroad on the Swiss civil registry. The rule is that maintenance contributions are to be paid in the form of a monthly “pension”. Under certain conditions (very strict in the 1.7 Does your jurisdiction allow separation or nullity case of child support), maintenance can be settled in the form of a proceedings? capital/lump sum payment. The main difference between these two options is that “pensions” automatically terminate by law under An action for spousal separation is possible under Swiss law (request certain conditions (death of one of the spouses or remarriage of the for provisional measures to protect the conjugal union) and is spouse) or may be modified upon the request of a spouse based on common in practice, in view of the two-year separation period changed circumstances, whereas a capital payment will remain due spouses are required to comply with before unilaterally initiating in any event, as it is intended as a final settlement payment covering divorce proceedings. the financial relations between the spouses. A capital payment has A marriage may also be annulled under certain special and also significant tax consequences. restrictive conditions (for example: one of the spouses lacked mental capacity or was under duress at the time of contracting marriage). 2.5 If a couple agrees on financial matters, do they need to

have a court order and attend court? 1.8 Can divorce proceedings be stayed if there are proceedings in another country? Yes, wherever the parties’ agreement is related to a divorce, the courts must always be involved. Divorce proceedings initiated in Switzerland can be stayed if divorce proceedings have already been initiated abroad and it is expected 2.6 How long can spousal maintenance orders last and are that, within a reasonable timeframe, they will lead to a decision that such orders commonplace? is capable of being recognised in Switzerland (also see question 1.5 above). This depends on the circumstances of the case (spouse’s occupation 2 Finances on Divorce during the marriage, age, training, experience, childcare, expectations, etc.). In general, a maintenance contribution will be ordered for a limited period of time, the rule being that the creditor may acquire 2.1 What financial orders can the court make on divorce? financial autonomy within a reasonable timeframe. Nevertheless, depending on the circumstances of the case, a judge may order the payment of maintenance until a spouse’s retirement, or even beyond. Financial orders that can be made include: spousal and child main- tenance support arrangements; division of the spouses’ pension rights accrued during the pendency of the marriage; division of 2.7 Is the concept of matrimonial property recognised in marital assets (which may involve the sale of a property); and your jurisdiction? provisional measures (freezing of bank accounts, rendering of accounts). Yes (see question 2.2 above).

2.2 Do matrimonial regimes exist and do they need to be 2.8 Do the courts treat foreign nationals differently on addressed by the court on divorce? Is there a default divorce, if so, what are the rules on applicable law? Can the matrimonial regime? court make orders applying foreign law rather than the law of the jurisdiction? Yes: the regime of joint property (default regime); the regime of community property; and the regime of separate property. In the A court may have to apply foreign law if the spouses elected such event of divorce, the matrimonial regime applicable to the spouses law, which may be that of the state in which they are both domiciled must be terminated. or will be domiciled after contracting marriage, or the law of the

state of which one of them is a national. In the absence of a choice 2.3 How does the court decide what financial orders to of law, the court will have to determine the applicable law, which is make? What factors are taken into account? governed by the law of the state in which both spouses are domiciled at the same time or were last domiciled at the same time.

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A Swiss judge will apply foreign law unless it violates Swiss public may also require the parties to seek therapy in order to improve policy. communications between the parents. A Swiss judge may also apply the foreign law of the children’s habitual residence when determining support contributions for 3 Marital Agreements children. Similarly, before granting the divorce, the court will apply the law of the creditor’s habitual residence when determining the pension due between spouses. 3.1 Are marital agreements (pre and post marriage) With regard to questions relating to spousal pension rights enforceable? Is the position the same if the agreement is a accumulated in Switzerland, exclusive jurisdiction is vested in the foreign agreement? Swiss courts, which will apply Swiss law in this context.

Swiss law does not prescribe any binding form for pre- or post- 2.9 How is the matrimonial home treated on divorce? nuptial contracts, except for those aimed at selecting a matrimonial regime. The Swiss courts will include the matrimonial home owned in The contract will have to be approved by the family court judge common by the spouses in their decision on terminating the in the divorce proceedings. The judge may decide not to approve matrimonial regime. Generally, one of the spouses will agree to buy the contract because he considers it manifestly unfair or because a back the other’s share of the asset owned in common. Where the spouse objects to this at the time of the divorce. parties fail to reach agreement as to the price, the judge will order Thus, a foreign marital contract will be recognised with regard to the property to be sold at auction. Alternatively, the judge may also the matrimonial regime (provided that the choice of law is valid, and award usage of the property to one of the spouses, for a limited subject to any public policy concerns), but will in any case be subject period of time and in return for compensation, if this is justified by to the judge’s ruling on the other points. the presence of children or other important reasons. If the family home is rented by the spouses, the judge can transfer its use (during 3.2 What are the procedural requirements for a marital the separation proceedings), then the lease itself (during the divorce agreement to be enforceable on divorce? proceedings), to one of the spouses, usually the one who is awarded custody of the children. The judge must conduct a hearing and establish that the spouses 2.10 Is the concept of “trusts” recognised in your have made their marital agreement willingly and after careful consideration and that it is not manifestly unfair. In matters relating jurisdiction? If so, how? to children, the judge has free discretion.

Yes, following Switzerland’s ratification of the Hague Convention 3.3 Can marital agreements cover a spouse’s financial of 1 July 1985 on the Law Applicable to Trusts and on their claims on divorce, e.g. for maintenance or compensation, or Recognition, trusts have become fully recognised in Swiss law. However, the Swiss legislature has not developed specific rules are they limited to the election of the matrimonial property relating to trusts; foreign law trusts are an autonomous concept, and regime? it is not considered necessary to categorise them according to similar concepts in Swiss domestic law. An agreement is not limited to the election of the matrimonial The Swiss Private International Law Act governs questions of regime and may also cover the spouses’ maintenance or contribution jurisdiction and applicable law. rights, but in order to be valid as to the latter point the parties’ agree- ment must be approved by the divorce judge. However, in practice, 2.11 Can financial claims be made following a foreign marital contracts under Swiss law will usually cover all matters divorce in your jurisdiction? If so, what are the grounds? relating to the associated effects of divorce.

Yes, Swiss courts have jurisdiction to hear requests aimed at 4 Cohabitation and the Unmarried Family completing or modifying a divorce decree, either if the decree was rendered by a Swiss court or if the respondent is domiciled in 4.1 Do cohabitants, which do not have children, have Switzerland, or if the petitioner has resided in Switzerland for at least one year. financial claims if the couple separate? What are the grounds In order to request modification of a divorce decree, new facts to make a financial claim? must be alleged. In addition, questions relating to division of the spouses’ pension No. The only claims that can be asserted by cohabitants are the rights now fall within the exclusive jurisdiction of Swiss courts. Any standard claims (co-ownership, loans, simple partnership, etc.), but related decision rendered by a foreign court after 1 January 2017 in it is not, for example, possible for a cohabitant to claim a pension this context must be supported by a supplemental decision of the from his or her cohabitant. Swiss courts on the question of the spouses’ pension rights.

4.2 What financial orders can a cohabitant obtain? 2.12 What methods of dispute resolution are available to resolve financial settlement on divorce? E.g. court, In addition to claims under standard law, a partner who has ceased mediation, arbitration? working or reduced his occupational activity in order to care for children may indirectly obtain a pension for his own expenses (see Family mediation is increasingly advocated by the judicial authorities. question 5.1 below re care contribution). In the context of a family law dispute involving children, the judge now has the option of ordering mandatory mediation. The judge

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4.3 Is there a formal partnership status for cohabitants (for payments in certain circumstances (typically if he or she no longer has contact with the child). example, civil partnerships, PACS)? The “care contribution” (see question 5.1 above) decreases gradually as the child progresses through school, as the custodial No. It should be noted, however, that some cohabitants choose to parent is expected to gradually return to gainful work as the child sign a private contract to govern the financial terms of their grows up (in principle: when the youngest child enters compulsory unmarried partnership. school, the parent may return to work on a 50% basis; this rises to 80% when the child enters secondary school and then 100% when 4.4 Are same-sex couples permitted to marry or enter other the child reaches the age of 16). formal relationships in your jurisdiction? 5.4 Can capital or property orders be made to or for the Same-sex couples cannot marry but may enter into a registered benefit of a child? partnership, which is an institution similar to marriage with comparable effects. The general rule is that child support is paid out in monthly instal- ments. By way of exception (for example, if the paying parent does 5 Child Maintenance not wish to have any contact with the child in the future) and under certain conditions (specifically, where a judge has approved this), the payment of a lump sum in lieu of monthly instalments may be agreed 5.1 What financial claims are available to parents on behalf by the parties, but this will not be ordered by the judge. of children within or outside of marriage? 5.5 Can a child or adult make a financial claim directly Since 2017, Switzerland has sought to put children of married and against their parents? unmarried parents on an equal footing by establishing that in addition to direct costs (rent, health insurance, food, clothing, As long as he or she is a minor, the child cannot make a claim on his schooling fees, transport, extracurricular activities, etc.), child support or her own against his parents and has to be represented in order to must now also cover the “subsistence costs” of the custodial parent do so, either by one of his parents (with legal custody) in an action who has given up his or her job – or who has reduced his or her against the other parent, or by a curator named by the Court upon hours of work – to take care of the child; this is called the “care the child’s request. contribution”. The notion of “subsistence costs” is indeterminate Once he turns 18, the child can act on his or her own. and may include different costs depending on the financial situation In the event that the child comes of age during the proceedings, of the parties, but includes at least the rent expenses of the custodial the parent or guardian who claimed child support even after the parent, his or her health insurance, a lump sum for current expenses child’s majority may continue to act on his or her behalf, subject to (food, clothing, etc.) and a bus pass. the child’s – and the judge’s – approval.

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

If the parents disagree, decisions on child maintenance are vested in the courts. The method used depends on the family’s financial 6.1 Explain what rights of custody both parents have in your situation; where the family is well-situated financially, the mainten- jurisdiction whether (a) married, or (b) unmarried? ance payment will be set in such a way that the child’s full effective costs are covered, the idea being that he or she should benefit from Since 1 July 2014, joint legal custody has been the rule, whether or the comfortable lifestyle of at least one parent. On the other hand, not the parents are married. if the family’s financial situation is not as strong, the amount of the Married parents at the time of the child’s birth automatically contribution payment will be limited and will include a contribution benefit from joint legal custody. In the case of unmarried parents, to the custodial parent’s rent, health insurance and a lump sum for a declaration of joint legal custody must be filed with the civil current expenses (food, clothing, etc.). registry office. It should be noted that the parent ordered to pay contributions Legal custody means that parents have to make important must be able to cover his or her own basic expenses (rent, health decisions concerning the child jointly (surname, first name, custody, insurance, general living expenses) after payment of the habitual residence, education, religion, health, representation, contribution; if this is not the case, child support will be reduced administration of the child’s property, etc.). In regards to everyday accordingly, or may even be suspended if the paying parent’s income matters (leisure activities, food, clothing, etc.) or urgent matters, is insufficient to cover these expenses. When appropriate, the “care however, the parent who cares for the child can make the decisions contribution” is added to these costs (see question 5.1 above). on his or her own. Similarly, if the other parent cannot be reached

despite reasonable efforts by the first parent, the first parent can 5.3 For how long is a parent required to pay child decide. maintenance or provide financial support for their children? By way of exception, the general rule of joint legal custody will For example, can a child seek maintenance during university? not apply if the child’s welfare requires this (sole parental custody). Legal custody must be distinguished from physical custody. With regard to physical custody, the judge must assess whether alternating Child maintenance is payable until the child reaches 18 years of age, custody is in the child’s best interests, based on several criteria, or until he or she completes regular and seriously pursued vocational including the equivalent parental capacity of the parents, the training or university studies, but, in principle, until no later than the geographical location and distance from the parents’ place of age of 25. After the child reaches the age of majority, the paying residence, the ability and willingness of each parent to promote parent has the option of requesting cancellation of the support contact between the child and the other parent, the stability that this

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solution would bring, the child’s age, his or her preferences, etc. 6.7 Is there a presumption of an equal division of time These assessment parameters apply to both married and unmarried between separating or divorcing parents? parents. In the event of exclusive physical custody being granted to one of the parents, access rights will be granted to the non-custodial No. Swiss law distinguishes between joint legal custody, which is parent (usually every other weekend and half of the school holidays; now the rule, and alternating physical custody. Since 1 January 2017, the judge has free discretion in this respect). courts have been required to consider the possibility of , in the light of what is best for the child (see question 6.1 above). 6.2 At what age are children considered adults by the court? Alternating custody is thus not the most frequent model, but balanced participation of both spouses in the daily care of the child At the age of 18. is encouraged.

6.3 What is the duration of children orders (up to the age of 6.8 Are unmarried parents treated in the same way as 16 or 18 or otherwise)? married parents when the court makes orders on separation or divorce? In principle, decisions relating to children are applicable until they reach the age of majority. With regard to the subject-matter jurisdiction of the court over Nevertheless, judges will regularly order maintenance contributions matters relating to children, no. The jurisdiction of the authorities for children up to the age of 18, or even up to the age of 25 where differs depending on whether the parents are married or not, and the child is pursuing regular and serious studies. whether or not the question of child support is involved. For instance, if unmarried parents only intend to litigate parental rights, 6.4 What orders can the court make in relation to children? they must turn to a child protection court. On the other hand, if Does the court automatically make orders in relation to child one of the unmarried parents files a maintenance application, the arrangements in the event of divorce? civil judge will be competent to rule on all matters relating to the child. With regard to the merits, married or unmarried parents are not The judge acts ex officio with respect to children; this means that he treated differently financially when it comes to children. One of the or she must necessarily consider all matters relating to children and aims of the new law which came into force on 1 January 2017 was has free discretion in this regard, even if the parents agree. The main to eliminate discrimination against children of unmarried parents points to be settled are: legal custody; physical custody (alternating relative to children of married or divorced parents, by including the or not, see question 6.1 above); visitation rights; and maintenance. cost of their care in the calculation of the maintenance contribution The law provides that the child may be heard by the judge (who for the child. may also delegate the hearing of the child to the child protection With regard to parental rights, parents who are married at the time services) in the context of the parents’ divorce proceedings. A legal of the child’s birth automatically benefit from joint legal custody. In guardian may be appointed to represent the child. the case of unmarried parents, the father must recognise the child with the civil registry office and file a declaration of joint legal 6.5 What factors does the court consider when making custody together with the other parent. orders in relation to children? 6.9 Is a welfare report prepared by an independent The judge’s decisions must be governed by the best interests of the professional or is the decision taken by the Judge alone? If child. For rulings on physical custody, the judge must examine, so, does the child meet the Judge? notwithstanding any potential agreement by parents, whether the envisaged custodial arrangement is compatible with the child’s well- In divorce or separation proceedings, the judge must hear the child being and stability, taking particular account of the parents’ living before making a decision, provided that the young age or other good arrangements. The welfare of the child is the fundamental rule in reasons do not militate against this. allocating parental rights, with the interests of the parents relegated The judge may also delegate the hearing of the child to the child to secondary place. protection service, asking it to draw up a report (which is very often

the case in practice). The report informs the judge as to the current 6.6 Without court orders, what can parents do unilaterally? situation of the family and helps him or her to form an opinion on For example, can they take a child abroad? issues relating to the allocation of parental rights and the organ- isation of personal relations. It also informs the judge whether When parents have joint legal custody, the right to determine the protective measures are necessary to safeguard the child’s interests. child’s place of residence belongs to both parents. If one parent is In practice, when the question of custody is not contentious thinking of moving abroad with the child, the agreement of the between the parents, the judge waives the right to hear the child, other parent is necessary. This agreement can be reached amicably. unless he or she has doubts about the position adopted by the However, if the parents cannot agree on this point, the decision is parents (see question 6.1 above). one for the judge or child protection services. If a hearing of the child is carried out, this must be done in a A parent exercising sole legal custody may make any decision proper fashion. In practice, the judge will order a hearing of the relating to the child on his or her own; if he or she wishes to change child by the competent protection services authority, but not before the child’s place of residence; however, he or she must inform the the child is six years old. other parent in good time. However, the child may refuse to be heard and may also object to a record of his or her hearing being kept. From the age of 11–12 years, the child can ask to be heard.

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6.10 Is there separate representation for children in your comports with effective care arrangements, taking account of the child’s age and wishes. jurisdiction and, if so, who would represent them, e.g. a If both parents are considered primary attachment figures, as in lawyer? the case of alternating custody, other criteria will be taken into account such as, inter alia, the parents’ educational capacities, their Yes, the judge must consider whether a legal guardianship should be ability to effectively take care of the child, the stability of family ordered to represent the child, in particular if the parents file relations, the child’s wishes in light of his or her age and maturity, different submissions relating to the child’s fate (including child the language or the child’s schooling. support), if the child or the child’s parents or protection services so request, or if the judge has doubts as to the merits of the parents’ 7.4 If the court is making a decision on a child moving to a joint submissions or considers ordering a protective measure for the different part of the state/country, what factors are taken into child. At the request of a child that is capable of judgment (in principle, where the child is 11 years of age or older), the judge account? appoints a legal guardian. Under Swiss law, the judge must appoint a guardian experienced in the field of legal assistance (e.g. a social See question 7.3 above. worker, a child psychologist or a lawyer). 7.5 In practice, how rare is it for the custodial parent to be 6.11 Do any other adults have a say in relation to the allowed to relocate internationally/interstate? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution If one parent has sole custody and the relocation is in the child’s best are available to resolve disputes relating to children? interests, he or she will, in principle, be allowed to take the child abroad. No, not in a litigation context. However, a mediator might consider integrating the extended family circle into the mediation; this will 7.6 How does your jurisdiction deal with abduction cases? depend on the agreement between the parties. For example, is your jurisdiction a party to the Hague The relatives of a child may also be heard by child protection Convention? services in connection with their preparation of the report that may be requested by the court in the course of litigation. With regard to conflict resolution in matrimonial proceedings, the Switzerland is a party to the 1980 Hague Convention on the Civil judge may urge the parties to mediate. But mediation can now also Aspects of International Child Abduction. be ordered as a child protection measure. In addition, maintenance proceedings brought by an unmarried parent are always preceded by 8 Overview conciliation. In general, a negotiated solution should be encouraged wherever possible. 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? 7 Children – International Aspects Significant development in Swiss family law include: ■ The new child maintenance law that came into force on 1 7.1 Can the custodial parent move to another state/country January 2017 (including: equality as between children of married without the other parent’s consent? and unmarried parents; introduction of the care contribution; and priority of the contribution for a minor child). Only if the custodial parent has exclusive legal custody. The other ■ New law on the division of the spouses’ pension rights upon parent must be informed in good time prior to the departure. divorce (in particular, exclusive jurisdiction of Swiss courts When parents have joint legal custody, the agreement of the other where occupational pension rights have been accumulated in parent or the judge is required. Switzerland). ■ Possibility of adoption of the child of one’s partner or registered partner. 7.2 Can the custodial parent move to another part of the state/country without the other parent’s consent? 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? Only if the custodial parent has exclusive legal custody. Otherwise, and if the move to a different part of the country has significant impacts on the exercise of legal custody by the other ■ Better standardisation of the methods of calculating mainten- parent and on the child’s personal relationships, then the agreement ance contributions. of the other parent or the judge is required. ■ Standardisation and clarification of the introduction of alter- nating custody. ■ Promotion of collaborative and multidisciplinary support as 7.3 If the court is making a decision on relocation of a child between the various stakeholders (psychologists, lawyers, magis- abroad, what factors are taken into account? trates, mediators, etc.). ■ Necessary developments in the law of cohabitants and the law The interests and wellbeing of the child are taken into account. It of registered partners. is generally in the child’s best interests to continue to be cared for by his or her primary attachment figure and therefore to remain in Switzerland or move abroad with the latter, provided that this

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Sonia Ryser (Certified Specialist SBA Family Law) is a specialised family law lawyer and practises in all areas of family law. Her particular specialities include: marriage and divorce proceedings; and all matters involving children, in particular international proceedings relating to the abduction of children or adoption proceedings. She also advises on matrimonial planning, particularly pre-nuptial agreements with a national or international context. She often participates and speaks at different conferences on family law around Europe. She is also a member of the following lawyers associations: ■ Geneva Bar Association. ■ Swiss Lawyer Federation. ■ Lawyer and Specialized Lawyers Association SBA Family Law VF/FA. ■ International Association of Family Lawyers (IAFL). Sonia Ryser also appeared in the Chambers High Net Worth 2018 and 2019 ranking (Band I). Languages Spoken: French; English; and German.

Borel & Barbey Tel: +41 22 707 18 00 Rue de Jargonnant 2 Email: [email protected] CP 6045, 1211 URL: www.borel-barbey.com Geneva 6 Switzerland

Borel & Barbey provide advice to their clients in the areas of pre-nuptial plan- Barbey was ranked in 2017, 2018 and 2019 in the Top 5 Law Firms in ning and family estate law, both in the domestic Swiss and international Switzerland in marriage and family law (Recognition “Best law firm 2018”, context. awarded by Bilanz and Le Temps). Borel & Barbey support and represent their clients in court in various types of www.borel-barbey.com family law matters, such as marital protective measures, divorce proceedings, guardianship and actions under filiation law (parental rights, maintenance contributions). As a result of its multidisciplinary approach, our firm has the necessary expertise to undertake a full analysis of the collateral effects of any change of parties’ civil status, in particular as regards tax and immigration rules. Following a survey of 7,200 attorneys, 450 in-house lawyers, the general counsels of the 500 largest companies in Switzerland and clients, Borel &

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United Arab Emirates United Arab Emirates

TWS Legal Consultants Nita Maru

1 Divorce 1.5 Can a divorce be finalised without resolving other associated matters? For example, children and finances.

1.1 What are the grounds of jurisdiction for divorce In the UAE, a divorce is rarely concluded without resolving matters proceedings? For example, residence, nationality, domicile, relating to children and finances. etc.? 1.6 Are foreign divorces recognised in your jurisdiction? If Residency is key in determining jurisdiction for divorce proceedings so, what are the procedural requirements, if any? in the UAE. Individuals applying for a divorce in the UAE can be of any nationality or religion. Yes, a foreign divorce is recognised in the UAE as long as the documentation is appropriately legalised by the relevant authorities. 1.2 What are the grounds for a divorce? For example, is there a required period of separation, can the parties have an 1.7 Does your jurisdiction allow separation or nullity uncontested divorce? proceedings?

The grounds for divorce are regulated by the Personal Status Law. A marriage contract can be nullified where it contravenes public They can range from non-payment of dowry, mental incapacity, policy or Sharia law. The Personal Status Law provides circum- desertion and adultery. There is no required period of separation. stances under which nullity can occur. An uncontested divorce is possible and is a popular option as long as the parties agree on issues such as children and finances if applicable. 1.8 Can divorce proceedings be stayed if there are proceedings in another country? 1.3 In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” The UAE Courts will cease a case where it is proven that proceed- ings are concluded in another country. divorce, i.e. without any court involvement?

2 Finances on Divorce The parties must attend Court even in an uncontested divorce. There is a mandatory conciliatory process that must be attended at Court by both parties. An amicable divorce must be concluded by 2.1 What financial orders can the court make on divorce? a settlement agreement and executed by a Judge. Therefore, it is not possible to have a private divorce. In the UAE, the Courts will not generally make orders relating to

spousal maintenance. However financial maintenance orders in 1.4 What is the procedure and timescale for a divorce? respect of children are very common. These include, but are not limited to, monthly child alimony, education fees, housing, and trans- This depends on whether the divorce is amicable or contested. An portation, etc. amicable divorce where parties agree to all terms, commences with opening a file at Court. The mandatory conciliatory process begins 2.2 Do matrimonial regimes exist and do they need to be where both parties are required to attend Court to meet a conciliator addressed by the court on divorce? Is there a default to discuss their issues with the objective of resolving them. Parties matrimonial regime? who wish to pursue the amicable route can have their divorce concluded in a matter of weeks through the execution of a settlement agreement by a Judge and obtaining the divorce In the UAE, each party retains assets and property held in their certificate. A contested divorce can take anywhere between eight respective names. Property division must follow the legal ownership and 24 months. that exists at the time of the breakdown of the marriage. For example, if all the properties are in one spouse’s name, that spouse is considered the owner even following a divorce.

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2.3 How does the court decide what financial orders to 2.11 Can financial claims be made following a foreign make? What factors are taken into account? divorce in your jurisdiction? If so, what are the grounds?

The UAE Personal Status Law applies and the amount of mainten- The Court may follow judgment made under foreign law or UAE law. ance awarded can vary. The Court will look at the financial It is always in the Judge’s discretion as to whether they will consider circumstances of the parents in particular that of the husband. The the application or whether they will dismiss it on the basis that it has income of the husband is of paramount importance when assessing been adequately dealt with in the country the divorce was granted. child maintenance. Any moral compensation or iddah payments to a spouse are also assessed carefully by the Courts. A husband does 2.12 What methods of dispute resolution are available to not have the right to claim spousal maintenance from his wife. resolve financial settlement on divorce? E.g. court,

mediation, arbitration? 2.4 Is the position different between capital and maintenance orders? If so, how? In the UAE, mediation is widely recognised and formally recognised by the Court. There is no legal distinction between such orders in the UAE. In the UAE the Personal Status Law recognises maintenance orders. 3 Marital Agreements

2.5 If a couple agrees on financial matters, do they need to have a court order and attend court? 3.1 Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement is a A couple is required to attend Court to have an agreement executed foreign agreement? to become legally binding. In the UAE, whilst a marital agreement will not be enforceable per 2.6 How long can spousal maintenance orders last and are se, it is presented to the Courts as evidence of intention between the such orders commonplace? signatory parties and will be given its due weight as long as it does not contravene UAE public policy or UAE law.

In the UAE a husband is not permitted to claim spousal mainten- 3.2 What are the procedural requirements for a marital ance. Women can claim compensation where the husband has failed to provide her maintenance and for moral damages as a result of agreement to be enforceable on divorce? being divorced. Pre-nuptial agreements are introduced into divorce proceedings and 2.7 Is the concept of matrimonial property recognised in would be held as evidence of intention of the parties. your jurisdiction? 3.3 Can marital agreements cover a spouse’s financial The matrimonial regime in the UAE is separation of property. claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property 2.8 Do the courts treat foreign nationals differently on regime? divorce, if so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of Yes, a couple can include terms relating to financial claims on the jurisdiction? divorce. However, the agreement should not be drafted against public policy.

It is permissible under the Personal Status Law for an individual to 4 Cohabitation and the Unmarried Family apply their home country laws and petition before the Court. Where a husband and wife have different nationalities, the UAE law stipulates that the law of the husband is to be upheld. Where the 4.1 Do cohabitants, which do not have children, have law of the parties fails to address an aspect of the divorce procedure, financial claims if the couple separate? What are the grounds the Court will exercise its discretion to apply UAE law. to make a financial claim? 2.9 How is the matrimonial home treated on divorce? In the UAE, it is illegal for an unmarried man and woman to cohabit and as such no financial claims are available to cohabiting couples. The matrimonial home will be treated as being held in ownership as per the title deed. 4.2 What financial orders can a cohabitant obtain? 2.10 Is the concept of “trusts” recognised in your A cohabitant will not be able to apply for financial relief in the UAE. jurisdiction? If so, how?

4.3 Is there a formal partnership status for cohabitants (for The UAE is a civil code jurisdiction and does not recognise the concept of a common law trust except in the Dubai International example, civil partnerships, PACS)? Financial Centre (DIFC) free trade zone. Relationships between same-sex couples are illegal.

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4.4 Are same-sex couples permitted to marry or enter other 6.3 What is the duration of children orders (up to the age of formal relationships in your jurisdiction? 16 or 18 or otherwise)?

No, this is not permitted. Please see question 4.3 above. The duration is until the age of majority. Please see question 6.2 above. 5 Child Maintenance 6.4 What orders can the court make in relation to children? Does the court automatically make orders in relation to child 5.1 What financial claims are available to parents on behalf arrangements in the event of divorce? of children within or outside of marriage?

The Court can make orders relating to custody, guardianship, main- Child maintenance encompasses all types of expenses to care for a tenance and visitation of the children. The Court will automatically child. There are a number of factors taken into consideration make such orders relating to children in the event of a divorce. including housing, food, education, medical, flight tickets, etc. The father is solely responsible for these maintenance provisions following divorce. 6.5 What factors does the court consider when making orders in relation to children? 5.2 How is child maintenance calculated and is it administered by the court or an agency? The paramount consideration of the Court is the child’s best interest when making orders relating to children.

Child maintenance is calculated in accordance with the father’s income which is what the Courts will look at in the first instance. 6.6 Without court orders, what can parents do unilaterally? For example, can they take a child abroad? 5.3 For how long is a parent required to pay child maintenance or provide financial support for their children? Generally, any decisions relating to the children need to be consented For example, can a child seek maintenance during university? to and approved by the guardian which is typically the father. Therefore, the parent who is the guardian can make a range of decisions regarding the children unilaterally, including travel since the The father is responsible for child maintenance until full-time guardian also holds the rights of possession of the child’s passport. education is completed for boys and marriage for girls or until the However, this is not the case for the custodian parent which is the child reaches the age of 21 years old. mother. She will need the father’s consent in order to make any major decisions regarding the children. 5.4 Can capital or property orders be made to or for the benefit of a child? 6.7 Is there a presumption of an equal division of time between separating or divorcing parents? A father can transfer capital to a child; however, structured child maintenance remains applicable. No. There is no such presumption.

5.5 Can a child or adult make a financial claim directly 6.8 Are unmarried parents treated in the same way as against their parents? married parents when the court makes orders on separation or divorce? A child may claim against the father for education costs, as the father is responsible for maintenance at least until the child has completed Cohabitees are not legally recognised in the UAE. their education.

6 Children – Parental Responsibility and 6.9 Is a welfare report prepared by an independent Custody professional or is the decision taken by the Judge alone? If so, does the child meet the Judge?

6.1 Explain what rights of custody both parents have in your Discretion lies with the Judge. jurisdiction whether (a) married, or (b) unmarried? 6.10 Is there separate representation for children in your There is no concept of shared parental responsibility on equal terms jurisdiction and, if so, who would represent them, e.g. a under Sharia Law. The Court will follow the principle of acting in lawyer? the best interests of the child in accordance with the Personal Status Law. The mother is considered the custodian of the child and as having physical custody, while the father is the guardian and financial There is no separate representation for children in the UAE. provider. 6.11 Do any other adults have a say in relation to the 6.2 At what age are children considered adults by the court? arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution The age of majority is 21. are available to resolve disputes relating to children?

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Usually the parents are the only adults considered. Counselling and of the child and the father is the guardian of the child. Part of the mediation are available as dispute resolution methods to resolve guardianship rights include the father’s right to determine the children disputes. children’s residence. Therefore, if the father as guardian does not agree to a relocation then it cannot occur. 7 Children – International Aspects 7.6 How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague 7.1 Can the custodial parent move to another state/country Convention? without the other parent’s consent?

The UAE is not a party to the Hague Convention. Therefore, The custodian must obtain the prior consent of the guardian. abduction cases are dealt with on a case-by-case basis. However, the

UAE has its own rules for abduction cases commonly known as a 7.2 Can the custodial parent move to another part of the travel ban. Where there is fear of abduction by one parent and it is state/country without the other parent’s consent? successfully established before the Court, the Judge has power to impose a travel ban on the child. The custodian must obtain the prior consent of the guardian. 8 Overview 7.3 If the court is making a decision on relocation of a child abroad, what factors are taken into account? 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? As a primary concern the Court will consider whether or not the guardian has consented to the move. It is under the guardian’s In 2018, under new visa reforms, widows, divorced women and their decision-making authority to consent to a move. children are granted a one-year residence visa without the need for a sponsor following divorce or the death of a spouse. 7.4 If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into 8.2 What are some of the areas of family law which you think account? should be looked into in your jurisdiction?

All the circumstances of the case, including the ages of the children, The following areas of family law should be looked into: the difficulty the father would face in arranging contact and whether ■ The financial relief/compensation a wife is entitled to in the the father agrees to the children relocating, would be taken into UAE. account. ■ More resources and outreach programmes for women suffering from domestic abuse. 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate?

Unless the non-custodial parent agrees, this is unlikely. The reason for this is that by default, the law dictates the mother is the custodian

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Nita Maru is a British qualified solicitor and Founding/Managing Partner of TWS Legal Consultants, a proactive and dynamic law firm offering private client and corporate legal services in Dubai. She is a full member of STEP and holds a full legal consultancy licence from the Government of Dubai Legal Affairs Department. She is also registered on the DIFC’s Register of Legal Practitioners. With over 20 years of experience, Nita has authored numerous articles on family and inheritance matters in the UAE. Nita is well-known for her personal yet professional approach and ensuring her clients are in safe hands. She has a natural passion for safe- guarding families, children, and heirs in succession/inheritance matters in Sharia jurisdictions and has extensive experience with the administration of deceased’s estates in the UAE. Her deep-rooted passion for family comes from her own role as a mother of three – she understands, first- hand, the importance of protecting one’s children and ensuring their rights, wealth, and guardianship are preserved and protected. Nita has established a successful and thriving UAE and UK family/divorce law department and prides herself on providing clients with a holistic approach in addressing their requirements. Her natural sense of empathy is conveyed through her client dealings in every respect.

TWS Legal Consultants Tel: +971 4 448 4284 3307–3308, 33rd Floor Email: [email protected] Oaks Liwa Heights Tower – Cluster W URL: www.willsuae.com Jumeirah Lakes Towers Dubai United Arab Emirates

TWS Legal Consultants is a leading full-service law firm specialising in private client, wills & estate administration/inheritance, probate, matrimonial & family matters for both UAE and UK, mediation & reconciliation, employment, corporate and real estate matters. TWS is 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. The firm’s mission quite simply is to provide peace of mind to their clients and protection for their families/assets. As a multicultural firm, the team are well placed to advise clients on inter- national matters regarding their personal and business affairs. As a well-established firm for over 10 years in Dubai, TWS continues to build on their strong reputation understanding the need for specialist tailored advice for their clients. www.willsuae.com

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USA – Illinois USA – Illinois

Peskind Law Firm Steven N. Peskind

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

One commences a divorce by filing a petition for dissolution of 1.1 What are the grounds of jurisdiction for divorce marriage in the county where either party then resides. For the court proceedings? For example, residence, nationality, domicile, to have personal jurisdiction over the respondent, that party must be etc.? served with a summons unless that party voluntarily appears in the proceeding. The respondent must have some minimum contacts Illinois accepts subject matter jurisdiction over a divorce if either with the State of Illinois for the court to invoke personal jurisdiction party resides in the state for 90 days preceding the filing of the case regardless of service. Most local court rules require both parties to or entry of the judgment for dissolution of marriage. This means complete a financial disclosure form early in the proceeding before that one could file a dissolution of marriage proceeding immediately any formal financial discovery may take place. after relocating to Illinois but the court would not enter a judgment Once served with a summons, a party has 30 days to respond to until the residency remained for 90 days (Reference 750 ILCS 5/401). the petition. By Illinois Supreme Court Rule, within 182 days of filing, the court is required to conduct a case management conference to determine the contested issues and set deadlines for 1.2 What are the grounds for a divorce? For example, is discovery and expert reports. In family law matters most local court there a required period of separation, can the parties have an rules provide for case management status hearings before 120 days. uncontested divorce? At the first case management date, if the parties have minor children, and have yet to reach an agreement concerning post-divorce parenting, the court will typically order them to mediation to try to “Irreconcilable Differences” is the sole basis to dissolve an Illinois reach an agreement (Reference Illinois Supreme Court Rule 218). marriage. If the parties have remained separated for at least six Parents with minor children must tender to the court, within 120 months, there is an irrebuttable presumption that “irreconcilable days from service of the original petition, a written parenting plan differences have caused the irretrievable breakdown of the incorporating any agreements regarding parental decision making marriage”. No further proof is necessary to achieve the divorce. and allocation of parenting time. In the absence of an agreement, For the purposes of the statute, separation does not require proof the parties are to individually present his or her proposed parenting of separate residences, but rather is based upon the period the plan to the court. Ultimately, if the parents cannot reach an agree- parties stopped emotionally living together as a couple. For separ- ment the court will determine after a hearing and based upon the ations of less than six months, the petitioning party will need to best interest of the children, the allocation of parenting time and prove that the marriage has irretrievably broken down as a result of decision-making rights. irreconcilable differences (Reference 750 ILCS 5/401). The court may resolve temporary issues throughout the case including: temporary restraining orders or injunctions; allocating 1.3 In the case of an uncontested divorce, do the parties possession of the marital home; temporary child support and/or need to attend court and is it possible to have a “private” parenting time; temporary maintenance or allocation of responsibility divorce, i.e. without any court involvement? for marital expenses; and other issues that rise between the parties throughout the case. The presiding judge may also become involved with negotiations by making settlement recommendations at a The petitioner must physically appear in court at a “prove-up” settlement or “pretrial” conference. The presiding judge also resolves hearing, a final court appearance, to present evidence of the any disputes concerning discovery and oversees the case generally. jurisdictional prerequisites and that irreconcilable differences have Other than deadlines related to the children, there are no other occurred. The statute requires the court to approve the agreement statutory deadlines for resolution of divorce cases and the length of and find that it is “not unconscionable”. The court does this by the case will depend upon a variety of factors: judicial management reviewing the proposed agreement and judgment, and through the (or lack thereof ); competence of the attorneys involved; the testimony of the petitioner (Reference 750 ILCS 5/502). contested issues; and venue of the case, etc. The general chronology It is not possible to have a private divorce, but procedures permit of a divorce case involves: determining the contested issues; possible a court to maintain a couple’s privacy by approving agreements that mediation of child or financial issues; discovery (written and deposi- are referenced but not included in the publicly accessible court file. tions); identifying and valuing property; using experts to value Additionally, many judges will permit the prove-up hearing to business interests and other assets; negotiation; and ultimately, trial, proceed privately in the judge’s chambers, rather than a public court- if no agreement can be reached. room.

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If the parties reach an agreement on all issues, a prove-up hearing orders known as Qualified Domestic Relations Orders (QDROs) is scheduled after the agreement is reduced to writing and the parties that divide an interest in a qualified retirement plan (Reference 750 agree to the written draft (see question 1.3 above). If no agreement ILCS 5/503). is achieved, the case will be tried, typically before the judge that In addition to dividing property, Illinois courts can enter awards presided over the case. No jury trials are permitted. of spousal support (known as maintenance) both temporarily and permanently. Courts can also enter orders for child support 1.5 Can a divorce be finalised without resolving other including contributions for school fees, medical costs and extra- curricular activity fees. Also, courts can enter orders allocating associated matters? For example, children and finances. college expenses for children (Reference 750 ILCS 5/504 and 750 ILCS 5/505). Yes, the Court may resolve the divorce and reserve any of the companion issues if the parties agree or upon a finding of the court 2.2 Do matrimonial regimes exist and do they need to be that appropriate circumstances exist (Reference 750 ILCS 5/401). addressed by the court on divorce? Is there a default 1.6 Are foreign divorces recognised in your jurisdiction? If matrimonial regime? so, what are the procedural requirements, if any? Illinois uses a default statutory scheme of equitable distribution of property designated as marital property. Yes, Illinois courts will give full faith and credit to foreign divorce The scheme can be pre-empted by agreement of the parties and decrees (Reference 735 ILCS 5/12-651 et seq.). Orders for child our courts will generally defer to the parties’ agreements on property custody from a foreign court will be enforced under Illinois’ issues. If an agreement is designated unconscionable, however, the adoption of the Uniform Child Custody Jurisdiction Enforcement court will not permit it. Act (UCCJEA). However, even if a court finds that the originating court had competent jurisdiction, and the respondent was given notice and an opportunity to be heard, an Illinois Court need not 2.3 How does the court decide what financial orders to enforce a foreign court order if the child custody law of the foreign make? What factors are taken into account? country “violates fundamental principles of human rights” (Reference 750 ILCS 36/101). Illinois uses an equitable distribution model for dividing property. While ordinarily marital property is divided on a 50/50 basis, in some 1.7 Does your jurisdiction allow separation or nullity instances equitable does not mean “equal”. Courts may award a proceedings? disproportionate share of the marital estate to one of the spouses if equitable circumstances so warrant. The factors that a court is to consider in dividing the marital estate include: the length of the Illinois allows judgments for legal separation. Once a separation marriage; the parties’ respective incomes and future ability to acquire judgment is entered, since the parties are still technically married, assets; respective contributions; their non-marital holdings; and they can file joint tax returns as a married couple. Also, most various other equitable factors (Reference 750 ILCS 5/503). employer sponsored health insurance plans will continue to cover the separated spouse. Any assets acquired by either spouse post judgment of separation would remain his or her separate property 2.4 Is the position different between capital and in the event of a subsequent divorce. maintenance orders? If so, how? Illinois also allows a judgment of legal invalidity (formerly known as an annulment) if the marriage is determined to be invalid from its Yes, courts address property division and maintenance allocation inception (Reference 750 ILCS 5/301 et seq.). separately. Although determined separately, the issues intersect and one can influence the other. For example, if one of the parties 1.8 Can divorce proceedings be stayed if there are receives $20 million as part of his or her property settlement, the proceedings in another country? court may consider that fact in denying a separate award of spousal maintenance.

Under Illinois law, if two proceedings are pending in different jurisdictions, the latter filed proceeding would be subject to dismissal. 2.5 If a couple agrees on financial matters, do they need to Therefore, if a divorce is filed first in a foreign jurisdiction, the latter have a court order and attend court? filed case in Illinois would be subject to dismissal. However, if there were questions about jurisdiction in earlier case, an Illinois court Yes (see question 1.3 above), at least one of the spouses will need to might stay the dismissal pending resolution of the jurisdictional testify to its terms and obtain court approval of the agreement at a question in the original forum. prove-up hearing.

2 Finances on Divorce 2.6 How long can spousal maintenance orders last and are such orders commonplace? 2.1 What financial orders can the court make on divorce? For families with combined gross income under $500,000 per year, Assuming proper jurisdiction, an Illinois court can divide property and when maintenance is determined appropriate, it is to be set classified as “marital property”. Generally, marital property is any based upon legislative guidelines, unless the court finds the guidelines property acquired during the marriage, regardless of title, with the to be inappropriate. Under the guidelines, the maintenance is deter- exception of the following: property gifted to a party individually; mined by taking the difference between 33 1/3% of the payer’s net property inherited; or property acquired with money derived income and 25% of the recipient’s income. That sum is the annual exclusively from non-marital property. Illinois courts can also enter amount of maintenance, ordinarily paid in monthly installments. However, the amount of maintenance is not to result in the recipient

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receiving an amount that is in excess of 40% of the combined net terms, modify judgments for spousal maintenance. Any financial income of the parties. For families with combined gross income in provision for the children would be subject to modification in Illinois excess of $500,000 the maintenance is determined by application of if Illinois became the home state residence of the children. 14 equitable factors including the income, needs and financial Inasmuch as property distributions are non-modifiable under Illinois circumstances of each party (Reference 750 ILCS 5/504). law, the courts in Illinois would not likely allow for a modification The initial maintenance award can be entered either for a fixed of that foreign allocation of property. term, for an indefinite period, or to be reviewed at a definite future date for continued propriety. But the guidelines have durational 2.12 What methods of dispute resolution are available to provisions based upon the length of the marriage. For a long-term resolve financial settlement on divorce? E.g. court, marriage (in excess of 20 years), the maintenance is presumed permanent. But permanent orders are still modifiable based upon a mediation, arbitration? future change in circumstance (a good faith retirement by the payer for example). Illinois does not mandate mediation or arbitration for financial Unless the court decides otherwise or the parties agree otherwise, settlements. The only option available is court. However, the parties all court-ordered maintenance orders are modifiable if there is a could agree to mediation or arbitration but the final arbitration award subsequent and unforeseen change in circumstances. Except by or mediated agreement will need court approval before it is finalized. agreement otherwise, maintenance is to terminate upon the death of either party, the remarriage of the receiving spouse, or cohabitation 3 Marital Agreements by that spouse with someone in a spousal-type relationship.

2.7 Is the concept of matrimonial property recognised in 3.1 Are marital agreements (pre and post marriage) your jurisdiction? enforceable? Is the position the same if the agreement is a foreign agreement? Yes, property is either considered marital and divided at the time of the divorce, or non-marital and if so it remains the property of the Pre- and post-marital agreements are enforceable. Pre-marital agree- owner spouse. ments are presumed valid if they comport with the Illinois Premarital Agreement Act (750 ILCS 5/10). Post-marital agree- 2.8 Do the courts treat foreign nationals differently on ments are not specifically addressed by statute but are interpreted under Illinois common law. They must contain valid consideration divorce, if so, what are the rules on applicable law? Can the and not be found to be unconscionable. court make orders applying foreign law rather than the law of the jurisdiction? 3.2 What are the procedural requirements for a marital agreement to be enforceable on divorce? No, foreign nationals are treated identical to citizens. Foreign law would only be applied to determine whether to grant full faith and As noted above, a pre-marital agreement must comport with the credit to an existing foreign court order or if the parties contractually Illinois Premarital Agreement Act. agree to apply foreign law under a premarital agreement. Expert This Act provides that agreements must be in writing, that there testimony on that foreign law would be necessary under that circum- be full disclosure of the parties’ respective financial holdings, and stance. that each spouse enters into the agreement freely and voluntarily.

Prudent execution would include allowing both spouses access to 2.9 How is the matrimonial home treated on divorce? attorneys before execution of the agreement. Agreements entered into under duress are not enforceable but one must prove more than The marital home is considered an asset to be divided in the divorce. a last minute signature to prove duress. The court will consider the residential placement of the children in Post-marital agreements must similarly be entered into freely and determining disposition of the marital home. The home will either voluntarily and be in writing to be enforced. Full disclosure is critical be sold as part of the judgment or if one of the parties want to keep to ensure enforceability as well as an independent right to counsel. it, that party will need to pay his or her spouse the equitable portion In addition, post-marital agreements must include some contractual of the home. For example, if the house has equity of $600,000 and “consideration” or be bargained for exchange. Unlike a premarital the division of property is based on a 50/50 division, the spouse agreement that relies on the marriage itself as the consideration of keeping the residence will need to pay the spouse $300,000 or the the agreement, post-marital agreements need some independent entitlement might be offset against other assets (the spouse might consideration for the contract to be enforceable. forgo $300,000 from another asset). 3.3 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 compensation, or jurisdiction? If so, how? are they limited to the election of the matrimonial property regime? Yes, trusts are recognized and honored under Illinois matrimonial law. Trusts are used as estate planning devices and asset protection. Yes, parties can contractually agree to limit or exclude financial support for the spouse. However, support may be allowed if an 2.11 Can financial claims be made following a foreign economically dependent spouse would be left destitute as a result of divorce in your jurisdiction? If so, what are the grounds? unforeseen circumstances. In that event, despite a waiver of main- tenance, the court could override the agreement and enter an order of spousal support. If a foreign divorce is enrolled in Illinois, the Illinois court could

either enforce the terms of that judgment or depending upon its

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4 Cohabitation and the Unmarried Family during the period that the child attends school (no later than the child’s 26th birthday).

4.1 Do cohabitants, which do not have children, have 5.4 Can capital or property orders be made to or for the financial claims if the couple separate? What are the grounds benefit of a child? to make a financial claim? The court can, under certain circumstances, allocate a portion of a No, Illinois allows no financial claims by unmarried cohabitants parent’s marital property and place that into a child support trust for against each other. Illinois also does not recognize “common law the benefit of the child. This procedure is typically used when there marriage” status of long-term cohabitants. are concerns about that parent honoring support orders (Reference 750 ILCS 5/503(g)).

4.2 What financial orders can a cohabitant obtain? 5.5 Can a child or adult make a financial claim directly Courts can order the partition of jointly-owned property but beyond against their parents? that, no remedies are available for unmarried cohabitants without children. No, they cannot.

4.3 Is there a formal partnership status for cohabitants (for 6 Children – Parental Responsibility and example, civil partnerships, PACS)? Custody

Illinois does recognize a formal civil union. The laws pertaining to 6.1 Explain what rights of custody both parents have in your its dissolution are the same as those for a divorcing couple jurisdiction whether (a) married, or (b) unmarried? (Reference 750 ILCS 75/1).

4.4 Are same-sex couples permitted to marry or enter other Except in instances when the children would be in danger, both parents have rights or reasonable access to the children and decision- formal relationships in your jurisdiction? making rights. Those rights are not dependent upon the marital status of the parents. Children of unmarried parents are treated Yes, same-sex couples can marry or enter into a civil union. identically to those of married couples.

5 Child Maintenance 6.2 At what age are children considered adults by the court?

5.1 What financial claims are available to parents on behalf Children are considered adults at age 18.

of children within or outside of marriage? 6.3 What is the duration of children orders (up to the age of Rights of parents are the same regardless of the marital status of the 16 or 18 or otherwise)? parents. Courts can determine child support, allocate responsibility for medical expenses, health insurance, school fees and extra- Child support terminates upon the child’s 18th birthday or graduation curricular fees. Parents can also be ordered to contribute support of high school (whichever is later). Separate provisions are available for disabled adult children and contribute to their children’s post for disabled children or children attending college or trade school. high school, educational costs (e.g. college or technical school) (Reference 750 ILCS 5/513, 750 ILCS 5/513.5). 6.4 What orders can the court make in relation to children?

Does the court automatically make orders in relation to child 5.2 How is child maintenance calculated and is it arrangements in the event of divorce? administered by the court or an agency? Using a best interest of the child standard, courts decide all non- Illinois uses child support guidelines that are based upon the net agreed upon issues that impact children. incomes of both parents, published economic needs tables, and the Agreed resolutions still must be approved by the court. If parents parenting schedule (allocation of parenting time) (Reference 750 cannot agree on residential placement or who will decide issues ILCS 5/505). involving the children, the court is to determine an appropriate schedule and allocate decision-making responsibilities. In the event 5.3 For how long is a parent required to pay child of disputes regarding the children, the court retains jurisdiction after maintenance or provide financial support for their children? the proceeding to enter appropriate orders resolving disputes, either by modifying past orders or by enforcing them. For example, can a child seek maintenance during university?

6.5 What factors does the court consider when making Parents are obligated to pay child support and contribute toward other expenses until the child is 18 or graduates from high school, orders in relation to children? whichever is later. If the child continues onto post high school education, the parent can be obligated to contribute to the child’s The court ultimately uses a “best interest of the child standard”. But school fees, living expenses and other reasonable and necessary costs there are 17 factors courts consider when weighing the child’s inter- ests vis-a-vis the parent. Those factors include: the wishes of the

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parents and the child; past domestic violence; residential circum- While under very limited circumstances, grandparents, siblings and stances; the needs of the child; and each parents’ willingness to step-parents have rights of visitation with the children, they have no facilitate a relationship with the child by the other parent (Reference decision-making rights, nor do they have rights to independently 750 ILCS 5/602.7). advocate for the children. Mediation is mandatory for disputes involving children. Any 6.6 Without court orders, what can parents do unilaterally? unresolved issues are then submitted to the court for final resolution.

For example, can they take a child abroad? 7 Children – International Aspects Parents may leave the country for temporary periods without leave of court unless the time impinges on the other parent’s parenting 7.1 Can the custodial parent move to another state/country time. Prior to the entry of any divorce decree or parenting judg- without the other parent’s consent? ment, a parent seeking to relocate could be enjoined by a court order if the other parent objects. No. Court permission to relocate is necessary under Illinois law if the parent seeking to relocate has the majority of parenting time. 6.7 Is there a presumption of an equal division of time This rule applies intrastate or if the relocation is to another state or between separating or divorcing parents? county. Moves less than a specified distance (e.g. 25 miles) are permitted without court permission (Reference 750 ILCS 5/609.2). No, there is not. 7.2 Can the custodial parent move to another part of the 6.8 Are unmarried parents treated in the same way as state/country without the other parent’s consent? married parents when the court makes orders on separation or divorce? See the answer to question 7.1.

Yes, parenting provisions for unmarried couples are identical to 7.3 If the court is making a decision on relocation of a child those of a married couple. abroad, what factors are taken into account?

6.9 Is a welfare report prepared by an independent Whether the move is local or international, the court weighs 11 professional or is the decision taken by the Judge alone? If factors to determine whether the move is in the best interest of the so, does the child meet the Judge? child. Those factors include the reasons for the move, the reason for any opposition to the move, the circumstances of the child, the nature and extent of the relationship with the non-moving parent, There is no involvement by social workers or other actors in making and any other factor that affects the best interest of the child. A the final decisions regarding child placement or decision making. parent’s desire to move alone is insufficient to permit the move. A The judge may hear from mental health or other professionals if parent who does not have primary residence need not have questions arise concerning the needs of the children or the fitness permission to relocate (Reference 750 ILCS 5/609.2). of either parent. Judges may meet with a child in an “in camera” hearing. This hearing is conducted in the judge’s chambers and gives the judge an 7.4 If the court is making a decision on a child moving to a opportunity to speak directly with the child about his or her different part of the state/country, what factors are taken into preferences. The hearing is informal and in the presence of a court account? reporter. The child’s representative (Guardian ad litem) would be present as would the parents’ attorneys. Parents’ attorneys will often See the answer to question 7.3. waive their appearance to enhance the comfort of the child.

7.5 In practice, how rare is it for the custodial parent to be 6.10 Is there separate representation for children in your allowed to relocate internationally/interstate? jurisdiction and, if so, who would represent them, e.g. a lawyer? While not usual, courts do regularly allow international moves if the circumstances warrant it. The court may appoint a Guardian ad litem (GAL) to investigate issues involving the children for the court. The GAL makes 7.6 How does your jurisdiction deal with abduction cases? recommendations regarding the best interest of the children, which For example, is your jurisdiction a party to the Hague the court may adopt or reject. The court can also appoint a child representative who advocates for the child in court but makes no Convention? recommendations. Both the GAL and child representative advocate based on what representatives consider best for the child rather than Yes, the United States is a party to the Hague Convention. For non- the child’s requests. The child may also have a traditional attorney international abductions, the Federal Bureau of Investigation (FBI) who advocates for what the child wants (Reference 750 ILCS 5/506). is authorized to intervene in child abduction investigations.

6.11 Do any other adults have a say in relation to the 8 Overview arrangements for the children? E.g. step-parents or grandparents or siblings. What methods of dispute resolution 8.1 In your view, what are the significant developments in are available to resolve disputes relating to children? family law in your jurisdiction in the last two years?

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Illinois has dramatically overhauled its family laws over the past four rules to allow more effective use of mediation on financial issues. years. Concepts such as grounds have been abandoned. Illinois no Mediation is mandatory on child-related issues but should also be longer designates parents as custodians of children and instead used more effectively to resolve financial issues. Also, Illinois should references allocation of time and responsibilities. Maintenance is authorize the use of private judges to resolve cases more efficiently. now determined by guidelines and child support now is based upon the income of both parents.

8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction?

Illinois needs a period to let the courts interpret all of the changed laws. No coherent body of case law has yet to evolve due to the massive changes to the statutes. That being said, Illinois could adopt

Steven N. Peskind has practiced matrimonial law for over 34 years. He is a fellow of the American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers. Mr. Peskind has also been inducted as a Diplomate in the American College of Family Trial Lawyers. He is the author of five books on family law related issues. Mr. Peskind’s practice concentrates on family law issues including allocation of parental responsibility, financial disputes, marital contracts and other matters related to domestic relations. He practices throughout the State of Illinois.

Peskind Law Firm Tel: +1 630 444 0701 2445 Dean Street Email: [email protected] St. Charles URL: www.peskindlaw.com Illinois USA

Peskind Law Firm is a full-service family law firm representing clients throughout the State of Illinois. Led by Attorney Steven N. Peskind, the firm concentrates on all aspects of family law and matrimonial matters. The firm practices both in the Trial and Appellate courts of the state. Peskind Law Firm brings a high level of professionalism, discretion, and expertise to its cases. www.peskindlaw.com

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Cohen Rabin Stine Schumann LLP Gretchen Beall Schumann

1 Divorce ■ Irretrievable breakdown of the marriage for a period of at least six months, provided that one party states so under oath. (The court will not issue a Judgment of Divorce until the ancillary 1.1 What are the grounds of jurisdiction for divorce custodial and economic issues have been resolved.) The parties may be granted an uncontested divorce, either in the proceedings? For example, residence, nationality, domicile, event of one party’s default (failure to appear and defend) or in the etc.? event that neither party is contesting the cause of action (grounds). Parties often submit uncontested divorce filings following a The parties must meet jurisdictional requirements, found in New settlement. These documents would include a proposed Judgment York Domestic Relations Law (“NY DRL”) §230, as follows: of Divorce; if there is litigation and the parties appear at a ■ The marriage occurred in New York, one party has resided in Preliminary Conference before the court, the parties must indicate New York continuously for at least one year immediately prior at that time whether they have resolved grounds for divorce. Even to the commencement of the action (“commencement”) and when the parties indicate that the grounds for divorce are resolved, that party remains a resident as of commencement. in most instances the Judgment of Divorce is not granted until the ■ The parties have resided in New York as husband and wife and conclusion of the proceedings. one party has resided in New York continuously for at least one year immediately prior to commencement. 1.3 In the case of an uncontested divorce, do the parties ■ The cause of action has arisen in New York and both parties are need to attend court and is it possible to have a “private” residents at commencement or one party has resided in New York continuously for at least one year immediately prior to divorce, i.e. without any court involvement? commencement. (However, see Stancil v. Stancil, 47 Misc.3d 873 [Sup. Ct., N.Y. Co. 2016], where the trial court found under the No, the parties do not need to attend Court, provided that the facts presented that a party could not accelerate the two-year necessary submissions have been filed with the Supreme Court of residency requirement by alleging one year of residency coupled the State of New York, in the county where the parties are divorcing. with no fault grounds.) It is not possible to procure a divorce without the Supreme Court’s ■ Either party has resided in New York for a continuous period entry of a Judgment of Divorce, even if the matter is resolved of two years prior to commencement. without court intervention.

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? There is no mandatory timescale and courts maintain discretion with respect to the length of individual proceedings. Courts in some Grounds for divorce are set forth in NY DRL §170(1)-(7), as counties have established timescale guidelines by level of case follows: complexity. ■ Cruel and inhuman treatment (the conduct of the defendant must endanger the physical or mental wellbeing of the plaintiff 1.5 Can a divorce be finalised without resolving other as to render it unsafe or improper for the plaintiff to cohabit associated matters? For example, children and finances. with the defendant). ■ Abandonment (actual or constructive, for a period of one or Upon consent or court approval, and with the exception of NY more years). DRL §170(7) (irretrievable breakdown), the cause of action may be ■ Imprisonment (defendant incarcerated for three or more bifurcated from the ancillary relief, but this is atypical. The Supreme consecutive years after the marriage). Court, which hears all divorce actions, may also refer relief (e.g. ■ Adultery. custodial and child support issues) to the Family Court for resol- ■ Living separate and apart for one or more years pursuant to a ution, as set forth in New York’s Family Court Act. The New York written separation agreement which was subscribed by the courts may also address limited issues where another jurisdiction is parties and acknowledged or proved in the form required for a the forum in which one or more requests for ancillary relief must be deed to be recorded or pursuant to a decree/judgment of separ- heard (e.g. the parties are divorcing in New York and addressing the ation; the plaintiff must have substantially performed all the ancillary financial matters in New York, but the custody/access terms and conditions of the agreement or decree/judgment. matters must be heard in a different state/country which is the

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child(ren)’s home state or which otherwise has jurisdiction over the relief, the parties may submit an uncontested divorce packet which child(ren)). will result in a Judgment of Divorce. For more complex matters, the parties may submit a written Settlement Agreement or Stipulation 1.6 Are foreign divorces recognised in your jurisdiction? If of Settlement, acknowledged or proved in the manner required to entitle a deed to be recorded, with uncontested divorce filings, which so, what are the procedural requirements, if any? will likewise result in a Judgment of Divorce.

Yes, provided that they do not violate public policy. If a party is 2.6 How long can spousal maintenance orders last and are asking a court to enforce the provisions of a foreign divorce, then the party would make an application for recognition and/or regis- such orders commonplace? tration of the foreign decree, depending upon the provisions sought to be enforced (e.g. financial, custodial, etc.). 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 circumstances, lifetime maintenance may be awarded. New York has proceedings? adopted both Temporary and Post-divorce maintenance guidelines, at NY DRL §236B, which provide for a presumptive amount and Yes. Actions may be maintained to void a marriage, for annulment deviations from the presumptive amount in circumstances where the or separation (NY DRL §§5, 6 and 7, 140 and 200, respectively). presumptive amount would be unjust or inappropriate; in that case, the court will consider various factors contained within the statute. 1.8 Can divorce proceedings be stayed if there are In the case of post-divorce maintenance, the statute provides proceedings in another country? duration guideposts, which are percentage ranges applied to the length of the marriage. Such orders are commonplace where a party is the dependent Yes, they can. spouse.

2 Finances on Divorce 2.7 Is the concept of matrimonial property recognised in your jurisdiction? 2.1 What financial orders can the court make on divorce? Yes, NY DRL contains a definition of “marital property” at The court may make orders which distribute marital and separate §236B(1)(c). This includes “all property acquired by either or both property, award spousal support and/or necessaries, grant child spouses during the marriage and before the execution of a separ- support and direct that a party maintain disability and/or life ation agreement or the commencement of a matrimonial action, insurance. The court may also award counsel and expert fees to the regardless of the form in which title is held […]. Marital property less monied spouse. shall not include separate property as hereinafter defined”. Separate property is defined in §236B(1)(d) as “(1) property acquired before 2.2 Do matrimonial regimes exist and do they need to be marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal addressed by the court on divorce? Is there a default injuries; (3) property acquired in exchange for or the increase in value matrimonial regime? of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) New York is an Equitable Distribution state. The definitions of property described as separate property by written agreement of the marital and separate property are contained within NY DRL parties which conforms with DRL §236B(3)”. §236B(1). Please see question 2.7. 2.8 Do the courts treat foreign nationals differently on 2.3 How does the court decide what financial orders to divorce, if so, what are the rules on applicable law? Can the make? What factors are taken into account? court make orders applying foreign law rather than the law of the jurisdiction? The court considers 14 factors set forth in NY DRL §236B(5). Foreign nationals are not treated differently upon divorce. New 2.4 Is the position different between capital and York law will be applied unless there is a marital agreement maintenance orders? If so, how? containing applicable choice of law provisions which require the application of foreign law.

Yes, support orders are calculated pursuant to formulaic guidelines. The court may also consider potential factors, distinct from the 2.9 How is the matrimonial home treated on divorce? distribution factors, which are set forth in the Temporary and Post- divorce maintenance guidelines at NY DRL §236B. The court has the discretion to distribute the home to either party, to issue an order directing the home to be sold (upon decision after 2.5 If a couple agrees on financial matters, do they need to trial unless the parties consent earlier), either immediately or in the have a court order and attend court? future. If one party retains the marital residence as his or her distribution, the other party will typically receive a credit for his or her interest in the marital equity. To the extent a party meets his or The couple does not need to attend court, but they will need to her burden of proof that he or she invested separate property into obtain a Judgment of Divorce, which is in the form of a court order. If the matter is simple, and there is no property distribution or other

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the marital residence, the separate property may be returned prior to a deed to be recorded. These formalities, including the form distribution of the remaining proceeds/equity. acknowledgments, are found in New York’s Real Property Law.

2.10 Is the concept of “trusts” recognised in your 3.3 Can marital agreements cover a spouse’s financial jurisdiction? If so, how? claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property The court may consider distributions from a trust in determining a regime? party’s income. To the extent that marital assets have been utilised to acquire property held by a trust, that property might, in certain Marital agreements may cover the spouses’ financial obligations circumstances, be deemed marital property or result in distribution during the marriage and/or financial claims upon divorce, including, credits. without limitation, maintenance, distribution and counsel/expert fees. The agreement might outline a process for the valuation and 2.11 Can financial claims be made following a foreign distribution of assets with specificity. Marital agreements often divorce in your jurisdiction? If so, what are the grounds? address estate and other rights upon death of a party.

Financial claims can be made following a foreign divorce, to the 4 Cohabitation and the Unmarried Family extent that issues are left open by the foreign judgment for enforce- ment and/or modification by another jurisdiction or where the laws 4.1 Do cohabitants, which do not have children, have of the State of New York allow for enforcement and/or 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 resolve financial settlement on divorce? E.g. court, There is no relief available under NY DRL. There may be remedies mediation, arbitration? available in a civil suit, especially if the parties entered into a cohabitation agreement or otherwise maintain a basis for court inter- vention (e.g. civil litigation related to the disposition of a jointly-titled Alternative dispute resolution (mediation, arbitration and/or collab- asset). orative law) is available and may be entered into voluntarily by the parties, to be conducted by privately retained individuals. 4.2 What financial orders can a cohabitant obtain? Alternative dispute resolution programmes are also available in many county courts and judicial districts, which either mandate party participation or permit voluntary participation by parties and/or This is not applicable in our jurisdiction, with the exception of those their attorneys (e.g. matrimonial mediation programmes, matrimonial outlined in question 4.1 above. neutral evaluation programmes). 4.3 Is there a formal partnership status for cohabitants (for 3 Marital Agreements example, civil partnerships, PACS)?

3.1 Are marital agreements (pre and post marriage) It is possible to enter into a domestic partnership; however, domestic partnerships provide limited rights and can be terminated by either enforceable? Is the position the same if the agreement is a partner at any time by filing a termination statement in person at the 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 NY terminated and the partners are no longer partners. If either DRL §236B(3): “An agreement of the parties made before or during domestic partner gets married to another person, or to each other, the marriage, shall be valid and enforceable in a matrimonial action the domestic partnership is automatically terminated. Domestic if such agreement is in writing, subscribed by the parties and partnerships are 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 other that the necessary formalities are met for the agreement to be valid 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 no effective choice of law provision pertaining to validity, then the Yes, they are. 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 What are the procedural requirements for a marital agreement to be enforceable on divorce? The court may award basic child support to the party who is the primary residential custodian of the child(ren). The parties may also be ordered to pay a pro rata share of additional (“add-on”) expenses For a New York agreement to be enforceable, it must be subscribed articulated in NY DRL §240(1-b.)(a) et seq. and New York Family by the parties and acknowledged or proved in the form required for Court Act §413, identical statutes referred to as the “Child Support

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Standards Act” or “CSSA”. Add-ons may include childcare, 6 Children – Parental Responsibility and unreimbursed health-related expenses, and at the court’s discretion, educational and enrichment costs. A party might also be directed to Custody maintain health insurance for the child(ren) and to provide life insurance to secure child support obligations. The court may also 6.1 Explain what rights of custody both parents have in your award counsel fees to the party seeking support on behalf of the child(ren). jurisdiction whether (a) married, or (b) unmarried?

5.2 How is child maintenance calculated and is it Married and unmarried parents have the same rights to seek custody administered by the court or an agency? of and access to their child(ren).

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

5.3 For how long is a parent required to pay child 6.6 Without court orders, what can parents do unilaterally? maintenance or provide financial support for their children? For example, can they take a child abroad? For example, can a child seek maintenance during university? Parents have broad discretion and freedom of movement in the Until age 21; however, the parties may agree to extend the age of absence of court orders; however, a parent who is objecting to the emancipation beyond age 21. removal of the child(ren) from the jurisdiction may contest the other parent’s removal by seeking court intervention. (Applicable laws are 5.4 Can capital or property orders be made to or for the the federal Parental Kidnapping Prevention Act and the Uniform benefit of a child? Child Custody Jurisdiction and Enforcement Act.) For international removals, please see question 7.2 below.

No, they cannot. 6.7 Is there a presumption of an equal division of time 5.5 Can a child or adult make a financial claim directly between separating or divorcing parents? against their parents? No, there is not.

Yes, a child who is not emancipated may make a claim in limited circumstances. Such actions are rare.

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6.8 Are unmarried parents treated in the same way as 7.3 If the court is making a decision on relocation of a child married parents when the court makes orders on separation abroad, what factors are taken into account? or divorce? The court has broad discretion to consider the individual facts and Yes, although for child support purposes, a court might consider circumstances of each case. In Tropea v. Tropea, the New York Court whether the parties established a particular standard of living for the of Appeals articulated: “[…] we hold that each relocation request child(ren) within a joint household. must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best inter- 6.9 Is a welfare report prepared by an independent ests of the child. […] in all cases, the courts should be free to professional or is the decision taken by the Judge alone? If consider and give appropriate weight to all of the factors that may so, does the child meet the Judge? be relevant to the determination. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing If custody and access issues are disputed, the court will often the move, the quality of the relationships between the child and the appoint a forensic evaluator (e.g. a mental health professional) who custodial and noncustodial parents, the impact of the move on the prepares a report. The court maintains discretion to make a deter- quantity and quality of the child’s future contact with the mination without such an appointment. The court is not bound by noncustodial parent, the degree to which the custodial parent’s and any conclusions or recommendations in the report. child’s life may be enhanced economically, emotionally and Courts may interview the child, if the circumstances warrant. educationally by the move, and the feasibility of preserving the This is referred to as a Lincoln hearing (or in camera interview), where relationship between the noncustodial parent and child through suit- only the court, the Attorney for the Child and the child are present. able visitation arrangements. In the end, it is for the court to Either party’s attorney may ordinarily submit questions for consider- determine, based on all of the proof, whether it has been established ation by the court. The transcript of the Lincoln hearing is sealed by a preponderance of the evidence that a proposed relocation from access by the parties and their attorneys. would serve the child’s best interests.” 87 N.Y.2d 727 (1996).

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

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

6.11 Do any other adults have a say in relation to the 7.5 In practice, how rare is it for the custodial parent to be arrangements for the children? E.g. step-parents or allowed to relocate internationally/interstate? grandparents or siblings. What methods of dispute resolution are available to resolve disputes relating to children? While not uncommon, these cases often present complexities and are highly fact-specific. The burden may be high.

If standing exists, grandparents, siblings and half-siblings may maintain claims for visitation; relatives or third parties may also 7.6 How does your jurisdiction deal with abduction cases? petition for custody on the basis of extraordinary circumstances. For example, is your jurisdiction a party to the Hague With regards to dispute resolution methods available, please see Convention? question 2.12 (with the exception of neutral evaluation, which involves discrete financial issues). Several county courts have Yes, the jurisdiction is a party to the Hague Convention. established custody and access mediation programmes. Parents may Domestically, the Parental Kidnapping Prevention Act and the also retain the services of a parent coordinator, who will assist the Uniform Child Custody Jurisdiction and Enforcement Act would parties in resolving child-related disputes; the implementation of a apply. parent coordinator is sometimes incorporated into the parties’ final custody/access agreement. 8 Overview 7 Children – International Aspects 8.1 In your view, what are the significant developments in family law in your jurisdiction in the last two years? 7.1 Can the custodial parent move to another state/country without the other parent’s consent? In August 2016, the Court of Appeals issued a seminal ruling in the matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), wherein No; however, there is an exception for emergency circumstances the court established a new pathway to parentage for non-biological, pursuant to the Uniform Child Custody Jurisdiction and non-adoptive parents, holding that “…where a petitioner proves by Enforcement Act. clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co- 7.2 Can the custodial parent move to another part of the parents, the petitioner has presented sufficient evidence to achieve state/country without the other parent’s consent? standing to seek custody and visitation of the child”.

Please see question 7.1 above.

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8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction?

One area that is likely to continue being addressed is the impact of changing tax laws as they relate to divorce (e.g. the loss of alimony deductions in 2019 and beyond).

Gretchen Beall Schumann is a partner of the firm. An experienced attorney with regard to domestic and international matters, she 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 family law and electronic privacy, and for the French American Bar Association with respect to distribution of New York business interests; a fellow of the International Academy of Family Lawyers, she is a frequent speaker at other legal forums, as well as academic and corporate institutions in New York and abroad. Ms. Schumann was recently 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 President of the New York Women’s Bar Association Foundation. Ms. Schumann received a J.D. from Cornell Law School and A.B. in English from Columbia College, Columbia University.

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

The 11-attorney full-service family law firm of Cohen Rabin Stine Schumann, professionals, people entering marriages and people exiting marriages, and founded by esteemed family lawyers Harriet Newman Cohen, Bonnie E. Rabin, the children of divorce, among others, bringing the same level of focused Martha Cohen Stine and Gretchen Beall Schumann, offers decades of experi- effort to all of their clients. They have also been responsible for cutting edge, ence. The Cohen Rabin Stine Schumann team of lawyers provides committed landmark decisions, which have been cited and for which they are recognised. and personal legal service to clients (regardless of gender or orientation) in a www.crsslaw.com 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

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USA – Texas USA – Texas

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1 Divorce adultery, felony conviction (imprisonment for at least one year), abandonment (at least one year), living apart (at least three years), and confinement in a mental hospital (at least three years) (Tex. Fam. 1.1 What are the grounds of jurisdiction for divorce Code §§ 6.002–6.007). There is no separation requirement. However, there is a 60-day proceedings? For example, residence, nationality, domicile, waiting period from the date of filing to finalize a divorce case, etc.? unless a domestic violence exception exists (Tex. Fam. Code § 6.702). Prior to filing a divorce case, a party must be a domiciliary of Texas for the preceding six months and a resident of the county in Texas 1.3 In the case of an uncontested divorce, do the parties for the preceding 90-day period (Tex. Fam. Code § 6.301). A spouse need to attend court and is it possible to have a “private” domiciled in a foreign country may file suit for divorce in the county in Texas in which the domiciliary spouse resides, if the domiciliary divorce, i.e. without any court involvement? spouse has resided in Texas for six months (Tex. Fam. 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. Parties can agree to the (Tex. Fam. Code § 6.308). To divide the parties’ property, the Texas collaborative process in which the attorneys agree not to make any court must have personal jurisdiction over a non-resident spouse. court appearances while in negation stage. If negotiations fail, the Under the Texas long arm statute, the court has personal jurisdiction parties have to retain new counsel for litigation. In collaborative law over the non-resident spouse if: 1) the petitioner meets residency cases, the judicial proceeding is stayed until a party notifies the court requirements in Tex. Fam. Code § 6.301; 2) Texas is the last marital that the collaborative process did not result in settlement. residence; 3) the divorce is filed within two years of separation; and 4) the exercise of jurisdiction over the non-resident spouse would 1.4 What is the procedure and timescale for a divorce? comport with standards of fair play and substantial justice. See Tex. Fam. Code § 6.305. For child custody determinations, the Uniform Child Custody In Texas, there is a 60-day waiting period to finalize a divorce, with Jurisdiction & Enforcement Act (UCCJEA) states the requirements an exception for instances of family violence (Tex. Fam. Code § to establish jurisdiction over the children issues (Tex. Fam. Code 6.702). Most courts will issue a scheduling order, which states the Chapter 152). To determine jurisdiction, Texas courts determine the trial date and other deadlines for the case. The timeline to finalize a “home state” of the child, which is the state in which a child lived contested divorce will depend upon the specific court, which with a parent or person acting as a parent for at least six consecutive generally takes over a year. months prior to filing (Tex. Fam. Code §§ 152.102(7)); 152.201. A foreign country is treated as if it were a state of the United States 1.5 Can a divorce be finalised without resolving other for the purpose of applying the “home state” analysis in Chapter 152 associated matters? For example, children and finances. of the Texas Family Code. In emergency situations, the court may exercise temporary A court may grant a legal status divorce, without resolving financial jurisdiction when a child is present in Texas if either: 1) the child has matters or children issues, due to lack of jurisdiction over those been abandoned; or 2) it is necessary in an emergency to protect the portions of the case. See question 1.1 above (Tex. Fam. Code § child or a sibling of a child from mistreatment or abuse (Tex. Fam. 6.308). Code § 152.204(a)).

1.6 Are foreign divorces recognised in your jurisdiction? If 1.2 What are the grounds for a divorce? For example, is so, what are the procedural requirements, if any? there a required period of separation, can the parties have an uncontested divorce? Foreign divorces obtained with due process are recognized in Texas through the international principles of comity. Within 60 days of Parties may pursue uncontested divorces through the no fault filing an original pleading, the party seeking enforcement of a ground for divorce of “insupportability” (Tex. Fam. Code § 6.001). foreign judgment must give written notice to the court and all parties A party may request a divorce on fault-based grounds of cruelty, that describes the court’s authority to enforce or decide to enforce

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the judgment (Tex. R. Civil Procedure 308b). Within 30 days of the division”. The court may consider the following non-exclusive date that a notice is served, a party opposing enforcement must give factors: length of marriage; nature of property; party who has written notice to the court and all parties that explains the basis for custody of children of the marriage; disparity of earning power the party’s opposition and states whether the party asserts that the (education and employability); size of separate property estates; judgment violates constitutional rights or public policy. Id. health; age; liquidity of property; potential income from property; fault in the breakup of the marriage; a spouse’s tortious conduct; 1.7 Does your jurisdiction allow separation or nullity payment of temporary spousal support; expenses to maintain community property estate during the pendency of the divorce; proceedings? attorneys’ fees and costs; and the tax consequences of the property division. There is no legal separation status. During the pendency of a Once a spouse has met the burden to prove separate property by divorce, the court has authority to grant Temporary Orders to clear and convincing evidence, the court may not divest a party of address immediate issues involving the children, property, and any separate property. financial needs. The court may grant an annulment in circumstances when a party 2.4 Is the position different between capital and is: 1) under the age of 18; 2) under the influence of alcohol or narcotics; 3) permanently impotent; 4) entering marriage due to fraud, maintenance orders? If so, how? duress, 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 (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 1.8 Can divorce proceedings be stayed if there are a party qualifies and proves eligibility. See question 2.6 for 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 2.5 If a couple agrees on financial matters, do they need to Abate, also referred to as a Plea in Abatement. 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 2.1 What financial orders can the court make on divorce? of separate property, financial obligations, parental rights and duties may all be included in the divorce decree. At the parties’ election, The court has authority to divide community property and confirm the parties may execute a contract called an “Agreement Incident to separate property. The court may order an equitable remedy for Divorce” containing the terms of a property agreement and financial reimbursement claims, when there has been a contribution made by obligations. An Agreement Incident to Divorce would be referenced one marital estate to another, by awarding a money judgment or in the divorce decree, but the contract does not have to be filed with granting an equitable lien (Tex. Fam. Code §§ 3.402; 3.406). the court. The court has authority to order a spouse to pay child support and In the event that the parties choose to remain married, the parties medical support. The court may award spousal maintenance if a may execute a post-marital agreement regarding financial matters, party qualifies under Tex. Fam. Code §§ 8.051–8.055. which would not require any court order or court appearance.

2.2 Do matrimonial regimes exist and do they need to be 2.6 How long can spousal maintenance orders last and are addressed by the court on divorce? Is there a default such orders commonplace? matrimonial 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 discretion. all property owned by the spouses at the time of divorce is After a divorce is granted, a court may award spousal maintenance, community property (Tex. Fam. Code § 3.003(a)). Community but it is not commonplace. There is a rebuttable presumption that property is property acquired or created during the marriage by spousal maintenance is not warranted unless the spouse seeking either spouse that is not characterized as separate property. 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 the If a party claims that property is separate property or mixed spouse is exercising diligence in earning a sufficient income or devel- property, the party must prove the separate property characterization oping skills to provide for the spouse’s minimum reasonable needs. through tracing by a higher burden of proof, which is by clear and To be eligible for spousal maintenance, a spouse must prove 1) he convincing evidence (Tex. Fam. Code § 3.003(b)). or she lacks sufficient property, including the spouse’s separate

property estate, in a divorce that will not provide for that spouse’s 2.3 How does the court decide what financial orders to minimum needs, and 2) one of the four statutory bases exist make? What factors are taken into account? including 10-year marriage, family violence, disabled spouse, or disabled child (Tex. Fam. Code § 8.051). The court has discretion to award a disproportionate division of the After a court determines that a spouse is eligible for spousal main- community estate if the court finds that division is a “just and right tenance, the court considers the circumstances of the parties when determining the amount, duration, and manner of payments (Tex.

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Fam. Code § 8.052). However, a court may not order spousal main- A party may register a foreign divorce and enforce the order for viol- tenance that requires the payor to pay more than $5,000.00 per ations, such as failure to pay child support and spousal support. month or 20% of the payor spouse’s income, whichever is less (Tex. Also, under the Uniform Interstate Family Support Act (“UIFSA”), Fam. Code § 8.055). a Texas court may acquire jurisdiction to modify a child support The duration of the spousal maintenance obligation depends on obligation rendered in a foreign country (Tex. Fam. Code § 159.615). the basis of the spousal maintenance award (Tex. Fam. Code § A “foreign country” for this purpose is: 1) a country that has been 8.054). If the award is based on family violence and the parties have declared a foreign reciprocating country under federal law (see Notice been married for less than 10 years, the payments may not exceed of Declaration of Foreign Countries as Reciprocating Countries for the five years. If the award is based on a marriage between 10 years and Enforcement of Family Support (Maintenance) Obligations); 2) a country 20 years, the payments may not exceed five years. If the award is that has established a reciprocal arrangement with Texas; 3) a based on a marriage of 20 to 30 years, the payments may not exceed country that has enacted a law or procedures for issuance and seven years. If the award is based on a marriage of 30 or more years, enforcement of support orders substantially similar to the Texas the payments may not exceed 10 years. If the award is based on a Family Code; and 4) a country where the Convention on the spouse’s disability or a child’s disability, the payments may continue International Recovery of Child Support and Other Forms of as long as the disability exists. Family Maintenance is in force with the United States. Spousal support payments may be withheld through a wage with- holding order (Tex. Fam. Code §§ 8.101–8.210). 2.12 What methods of dispute resolution are available to

resolve financial settlement on divorce? E.g. court, 2.7 Is the concept of matrimonial property recognised in mediation, arbitration? your jurisdiction? A financial dispute may be resolved through trial, informal Yes, Texas is a community property state. See question 2.2. settlement agreements between attorneys, mediated settlement agreements, arbitration awards, and collaborative law agreements. 2.8 Do the courts treat foreign nationals differently on divorce, if so, what are the rules on applicable law? Can the 3 Marital Agreements court make orders applying foreign law rather than the law of the jurisdiction? 3.1 Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement is a Texas courts do not treat foreign nationals differently on divorce. If foreign agreement? the court has jurisdiction over the parties, property, or children, the Texas court has authority to proceed on all matters in the case. See question 1.1. Texas law will apply in a divorce case filed in Texas, Pre-marital agreements and post-marital agreements are enforceable, except when a valid pre-marital agreement has a choice of law even if executed in a foreign country. provision (Tex. Fam. Code § 4.003(a)(7)). See also, question 2.11. 3.2 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 court A pre-marital agreement must be in writing, no consideration is has the authority to award the marital residence to either party or required, full financial disclosure prior to execution (or opportunity order the property to be sold and the sales proceeds divided, as to receive), signed by both parties before marriage, and sworn or directed by the court. In the event that the marital residence was acknowledged. A post-marital agreement may be either a partition/ purchased prior to marriage, the property is the separate property exchange agreement and/or a conversion agreement. A partition/ of the purchasing spouse and the court has no authority to divest an exchange agreement must be in writing, identify the community ownership interest in separate property. property to be partitioned or exchanged, specify the parties’ intent A spouse may make a reimbursement claim for community by using terms “partition” or “exchange”, present effect when property funds which enhanced a party’s separate property residence. signed, no consideration, full financial disclosure prior to execution A spouse may also make a reimbursement claim for his or her (or opportunity to receive), signed by both parties before marriage, separate property funds used to enhance a community property and sworn or acknowledged. A conversion agreement must be in residence. writing, identify the separate property being converted into community property, disclose legal effect of conversion, no 2.10 Is the concept of “trusts” recognised in your consideration is required, signed, and sworn or acknowledged.

jurisdiction? If so, how? 3.3 Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or Yes, trusts are recognized in the State of Texas. A spouse’s interest in a trust may be characterized as either separate property to are they limited to the election of the matrimonial property community property, and the two interests of a trust to consider in regime? a dissolution of marriage are: 1) ownership of the trust corpus; and 2) ownership of trust income. Marital agreements may include financial claims, including modification or elimination of spousal maintenance. Marital agree- 2.11 Can financial claims be made following a foreign ments may vary from the community property regime. Marital divorce in your jurisdiction? If so, what are the grounds? agreements may address any of the parties’ rights and obligations, as long as they do not violate public policy or a statute imposing a criminal penalty (Tex. Fam. Code § 4.003).

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Pre-marital agreements may not adversely affect child support or parent’s monthly net resources as follows: one child = 20%; two waive Employment Retirement Income Security Act (ERISA) bene- children = 25%; three children = 30%; four children = 35%; five fits. children = 40%; and six or more children = 45% (Tex. Fam. Code § 154.125). 4 Cohabitation and the Unmarried Family When a non-custodial parent has children in more than one household, the percentage will be adjusted (decreased) to account for the other children (Tex. Fam. Code §§ 154.128–154.129). 4.1 Do cohabitants, which do not have children, have When a non-custodial parent’s monthly net resources are over financial claims if the couple separate? What are the grounds $9,200.00 per month, the child support calculation will be the to make a financial claim? guideline child support percentage of $9,200.00 with possible adjust- ment based upon a child’s proven needs that exceed the presumptive amount of child support (Tex. Fam. Code § 154.126). Parties may enter into a non-marital cohabitation agreement. The Texas has an administrative agency, called the Office of the only claim for a cohabitee would be a contractual claim (Tex. Fam. Attorney General, who records, receives, and distributes child Code § 1.108). The court may not divest a person of his or her support payments. separate property. Texas recognizes informal marriages, also referred to as “common 5.3 For how long is a parent required to pay child law marriage”. For an informal marriage to exist, the parties must 1) agree to be married, 2) live together in Texas as spouses, and 3) maintenance or provide financial support for their children? represent to others in Texas that they are married (also called For example, can a child seek maintenance during university? “holding out”) (Tex. Fam. Code § 2.401). In the event that a party establishes an informal marriage, the court has the authority to make The child support obligation continues until the child turns 18 years any rulings allowed for legally married couples. old or is no longer enrolled in high school, whichever is later (Tex. Fam. Code § 154.006). In the event that the child is disabled, the 4.2 What financial orders can a cohabitant obtain? court may award child support to continue after the child turns 18 years of age (Tex. Fam. Code §§ 154.302; 154.306). There are none. The court has no authority to order a financial obligation to pay for university expenses. The parties may contractually agree to pay for university expenses, but it is not required under Texas law. 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? No, there is not.

If there are accounts held in the name of a child or for the benefit 4.4 Are same-sex couples permitted to marry or enter other of a child, the court may order a party to be the custodian or for formal relationships in your jurisdiction? both parties to manage the asset.

Yes, since the U.S. Supreme Court decision in Obergefell v. Hodges, 5.5 Can a child or adult make a financial claim directly same-sex couples are permitted to marry (Obergefell v. Hodges 135 S. against their parents? Ct. 2584 (2015)).

5 Child Maintenance A child has standing to file a proceeding to adjudicate parentage, which may result in a financial obligation (Tex. Fam. Code § 160.602). 5.1 What financial claims are available to parents on behalf of children within or outside of marriage? 6 Children – Parental Responsibility and Custody Despite the marital status, a custodial parent is entitled to receive from the non-custodial parent: child support; health insurance 6.1 Explain what rights of custody both parents have in your coverage for the children; and usually 50% of the uninsured medical expenses for the children. There is no duty to pay child support, jurisdiction whether (a) married, or (b) unmarried? health insurance coverage, or the uninsured medical expenses for any children outside of the marriage (e.g. step-parents have no financial There is a presumption that both parents will be named “Joint obligation). Managing Conservators” (“JMCs”) (Tex. Fam. Code § 153.131(b)). When the court appoints the parties JMCs, the court will appoint 5.2 How is child maintenance calculated and is it one party to have the right to determine the residence of the child and the parties sharing decision-making rights. If the court finds administered by the court or an agency? that appointing the parent’s JMCs is not in the best interest of the child, the court may appoint one parent as the “Sole Managing Child support is based upon a percentage of the non-custodial Conservator” with designated exclusive decisions making rights and parent’s net resources. There are child support guidelines to calculate the other parent as a “Possessory Conservator” (Tex. Fam. Code §§ child support, which is based upon how many children the non- 153.071–153.076; 153.131–153.132). custodial parent supports. When a non-custodial parent’s monthly Marriage status does not affect a parent’s right of custody. When net resources are $9,200.00 or less (until September 1, 2019, calculate making a custodial decision, the court cannot consider a parent’s $8,550.00 or less), the amount of child support is calculated per the marital status (Tex. Fam. Code § 153.003). child support guidelines as the percentage of the non-custodial

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6.2 At what age are children considered adults by the court? Yes, parents, whether married or not, have the same legal rights to their children. The court is prohibited from considering marital status when making decisions about parental rights and obligations Children are considered adults at the age of 18. for their children (Tex. Fam. Code § 153.003).

6.3 What is the duration of children orders (up to the age of 6.9 Is a welfare report prepared by an independent 16 or 18 or otherwise)? professional or is the decision taken by the Judge alone? If so, does the child meet the Judge? Until the age of 18, with the exception that child support obligations will continue through graduation of high school. A court may order a social study or a custody evaluation by a mental health professional. A judge must confer with the child when the 6.4 What orders can the court make in relation to children? child is 12 years of age or older. When a child is under 12 years of Does the court automatically make orders in relation to child age, this is at the court’s discretion (Tex. Fam. Code § 153.009). arrangements in the event of divorce? 6.10 Is there separate representation for children in your Yes, in a divorce case, the court will make orders related to the minor jurisdiction and, if so, who would represent them, e.g. a children including parental rights and duties, geographic restriction lawyer? on the child’s residence, possession and access, child support, medical support, and injunctions. In some cases, courts may appoint an Amicus Attorney, Guardian Ad Litem, or Attorney Ad Litem to represent children. The Amicus 6.5 What factors does the court consider when making Attorneys and Attorney Ad Litems must be lawyers. The Guardian orders in relation to children? Ad Litems do not have to be lawyers.

The standard is the “best interest of the child”. The non-exclusive 6.11 Do any other adults have a say in relation to the factors the court may consider when determining the best interest arrangements for the children? E.g. step-parents or of the child include: 1) the physical, psychological, and emotional grandparents or siblings. What methods of dispute resolution 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) are available to resolve disputes relating to children? parenting skills; 6) the primary caregiver of the child; 7) the child’s preferences; 8) the geographic proximity of the parents; 9) whether A person who has actual care, control, and possession of a child for the child has siblings, as there is a preference to keep siblings in the a least six months ending not more than 90 days before filing has same home; 10) the extent to which the parents promote the standing to file a case (Tex. Fam. Code § 102.003). A person who is relationship between the child and the other parent; 11) false report a relative within third degree by consanguinity, if the child’s parents of ; 12) international child abduction; 13) parent fitness are deceased. Id. A grandparent, or another relative of the child and conduct; 14) drug or alcohol abuse; and 15) sexual conduct, if within the third degree by consanguinity, may request custodial rights the child has exposure or access (Tex. Fam. Code §§153.013; if it is necessary because the child’s present circumstances would 153.134; 153.251(c); 153.501–153.503). significantly impair the child’s physical health or emotional devel- opment or both parents, the surviving parent, or the managing 6.6 Without court orders, what can parents do unilaterally? conservator consent to the case (Tex. Fam. Code § 102.003). A sibling may file a case if at least 18 years old and may file if under For example, can they take a child abroad? 18 years of age if separated due to child protective services (Tex. Fam. Code § 102.0045). Cases involving children may be resolved When there is no court order, a parent may act unilaterally, including through mediation, arbitration, or the collaborative law process. traveling abroad with the child. Usually, the airlines require consent to travel acknowledgments; however, this is not a legal requirement. 7 Children – International Aspects

6.7 Is there a presumption of an equal division of time between separating or divorcing parents? 7.1 Can the custodial parent move to another state/country without the other parent’s consent? No, there is no presumption of equal division of time with children. There is a presumption that the visiting parent will have possession To move with a child out of state or out of the country, the parent per a Standard Possession Order, which is the 1st, 3rd, and 5th must have the right to determine residence that is not subject to a weekend, every Thursday night during the school year, extended geographic restriction. It is typical for courts to order a geographical summer possession (30–42 days), and special holiday possession restriction on a child’s residence, which would restrict a parent from periods. There are different possession schedules for parents who living with the child outside of a specific geographical area. In reside less than 100 miles from each other and over 100 miles from Texas, it is public policy to assure that children will have frequent each other (Tex. Fam. Code §§ 153.312–153.317). and continuing contact with their parents (Tex. Fam. Code § 153.001 (a)(1)). 6.8 Are unmarried parents treated in the same way as married parents when the court makes orders on separation 7.2 Can the custodial parent move to another part of the or divorce? state/country without the other parent’s consent?

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See question 7.1. Typically, the geographic restriction is within a to allow this and the non-custodial parent’s involvement with the particular county in Texas where the custodial parent resides, and child will be taken into consideration. In Texas, it is public policy to such restriction lifts if the non-custodial parent does not live within assure that children will have frequent and continuing contact with that geographic area. their parents (Tex. Fam. Code § 153.001 (a)(1)).

7.3 If the court is making a decision on relocation of a child 7.6 How does your jurisdiction deal with abduction cases? abroad, what factors are taken into account? For example, is your jurisdiction a party to the Hague Convention? In relocation cases, the court considers: 1) the distance between the parties after the relocation; 2) the accessibility and safety of travel The United States of America is a signatory to the Hague arrangements; 3) the quality of the relationship between the non- Convention on Civil Aspects of International Child Abduction, custodial parent and the child; 4) the possibility of depriving the which is incorporated by statute in the International Child non-custodial parent of regular and meaningful access to the child; Abduction Remedies Act (“ICARA”). 22 U.S.C.S. § 9001-9011. A 5) the impact of the relocation on future contact between the non- Hague Convention abduction case may be heard by either a state custodial parent and the child; 6) the reason for the relocation; 7) the district court or a federal district court. feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation; 8) the child’s relation- 8 Overview ship with the non-custodial parent’s family; and 9) the impact of the relocation on the child’s stability. 8.1 In your view, what are the significant developments in 7.4 If the court is making a decision on a child moving to a family law in your jurisdiction in the last two years? different part of the state/country, what factors are taken into account? Federal tax legislation that has impacted alimony.

See question 7.3. 8.2 What are some of the areas of family law which you think should be looked into in your jurisdiction? 7.5 In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? Spousal maintenance and child support should be looked into.

It is rare for a court to allow a custodial parent to relocate inter- nationally or to another state. There must be special circumstances

Lauren Waddell’s practice focuses exclusively on family law cases including divorce litigation, custody issues, complex property division, 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.

Fullenweider Wilhite Tel: +1 713 624 4100 515 Post Oak Blvd Email: [email protected] Suite 800 URL: www.fullenweider.com Houston Texas, 77027 USA

Fullenweider Wilhite specializes in family law matters including divorce, complex asset division, valuations, property settlements, child custody, spousal support and pre-and post-marital issues. The firm is particularly adept at working on cases in which substantial assets and business holdings are at stake, and that require a knowledge of both family law and accounting, business or financial issues. www.fullenweider.com

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