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3 Common Legal Challenges For British Expats
Our guest in this episode of the Expat Focus podcast is Alexandra Tribe - a lawyer, and the owner of Expatriate Law, who specialise in family law advice for British expats. She’s going to talk though three common legal situations that expats can find themselves in.
Carlie: Hey there it’s Carlie. Did you know the country you choose to divorce in can directly impact what assets you’re left with? Or that being an unmarried expat couple is a legal issue in some countries? Do you know how the laws of the country you’re living in apply to your children, if you’re having custody issues? My guest in this episode of the Expat Focus podcast is Alexandra Tribe, a lawyer, and the owner of Expatriate Law, a firm specialising in family law advice for British expats.
She’s going to talk through three common legal situations that expats can find themselves in. Of course, Alexandra is not giving specific advice here. For that, you’d need to get in touch with her. Alexandra, what sort of expats do you work with?
Alexandra: We work with British expats, so people who were, are born in England, or have links to England. Those expats commonly live in the main expatriate hubs such as Dubai, Qatar, Singapore, those regions.
Carlie: We’re going to talk through some common legal situations that expats can find themselves in, and how best to navigate these. The first situation on your list is divorce. How can this be more complicated than if you are going through a marriage breakup back home?
Alexandra: So, actually divorcing whilst you’re living abroad doesn’t have to be complex, but it’s important to work out which law is going to apply, which countries can you, could you divorce in, and which of those jurisdictions is best for you in terms of the cost of the divorce, the ease and the timescale of the divorce, and most importantly the financial outcome. So, people don’t realise that divorcing in one country can lead to a vastly different financial outcome to divorcing in another.
For example, one country may commonly award spousal maintenance for a wife on divorce, where, whereas in another country that may be prohibited. So it’s really important to get the right advice at an early stage, so that you can weigh up the pros and cons of divorcing in different jurisdictions, and work out what is best for you and your family, and in particular any children.
Carlie: When it comes to divorce, does it matter where in the world you got married?
Alexandra: No. And that’s surprisingly the first question that most clients ask us. They say, well I was married in Turkey, does that mean we have to divorce there? Many people, even if they’re British, are married overseas, they choose to get married in Bali or some other tropical place, but in fact, in most countries, it doesn’t matter where you were married.
What’s important is, what is your nationality? Where were you born? Where do you live now? What is the nationality and place of birth of your husband or wife? And what connections do you still have to your home country?
So for example, I advise English, British expats on the laws of England and Wales, and I would most commonly ask an expat who contacts me, where were you born, and what nationality is your father? And these two questions are really important, because in England, you can divorce through the English courts if you or your husband are habitually resident in England, but of course for expats that doesn’t apply, they’re all, they’re living abroad. But the English courts can also accept applications for divorce when one or both parties are domiciled in England.
Domicile is a concept in English family law, and it’s to do with your connection to England. So in very general terms, you are domiciled in England if you were born in England, and your father lived in England and was domiciled in England at the time of your birth. And it’s very difficult under English law to adopt a new domicile. You have to move to another country with the intention of settling there permanently. So most British people that contact us tend to still be domiciled in England, and that domicile connection of one of the parties allows them to divorce through the English courts. And that can be done remotely, without them needing to travel back to England, the divorce process in England is fairly straightforward. It’s a paper application. It can take as little as six months to complete.
So for some couples who want a quick and easy and amicable divorce, it’s a very straightforward and inexpensive jurisdiction to divorce. People also find that the English courts are beneficial for them because of the wide ranging financial claims that a spouse is able to make in England on divorce.
Carlie: Are there any cases where English courts wouldn’t recognise a marriage in order to be able to do the divorce proceedings?
Alexandra: Yes. This, this is a common issue. This is an issue particularly in the case of Muslim couples. In England there’s much publicity at the moment because Muslim couples sometimes marry under a Muslim ceremony in England, and if they don’t register that marriage, then previously that marriage hasn’t been recognised in England as a valid marriage. Which means at the time of divorce, or separation, one spouse will, may find it very difficult to make financial claims through the English court, because the English court will say, I’m sorry, you’ve, you’ve had this Muslim ceremony, but it’s not a recognisable marriage under English law, and therefore there is no marriage for us to dissolve, and then the, the one, one party is left to make potential child maintenance claims for the child, but very little else.
And this is a topic that’s been hot in the press recently. Aside from Muslim couples marrying in England, there’ve been a number of cases over the years, for example, when a couple are married abroad, and they don’t undertake the proper required legal steps to make it a proper binding marriage in that foreign country. And then sometimes the English court may not recognise the marriage as a result. So when getting married it’s very important to take legal advice, especially when marrying abroad, to make sure that you’re marrying in the correct way, using the proper formalities.
Carlie: I guess nobody really gets married expecting to divorce, but particularly if you’re somebody living outside of your home country, it, it’s good to keep these things in mind in case, you know, they’re needed in the future.
Alexandra: Yes, absolutely, and many couples who are separating as expatriates don’t realise the potential financial claims they have against their spouse, and how those claims can very from one jurisdiction to another. For example, the English courts are notoriously known as being exceptionally generous for wives.
Things are changing, but the approach of the courts at the moment is to allow spousal maintenance claims for one spouse to claim spousal maintenance from the other party post-divorce, sometimes for the rest of their life, as well as child maintenance, equal share of assets, pensions, savings, investments, that kind of thing. Whereas other countries, for example in Singapore, the courts very rarely take into account assets that are acquired prior to the divorce, and those are kept apart from the asset division. It's a different approach from the English courts.
And similarly in Dubai for example, where there’s a large expat population, the, the local UAE courts award very short-term spousal maintenance for a wife for just three months post-divorce, and that’s a, a very different picture. That gives you a few examples of why it’s very important to take adva-, advice in the country in which you’re living, as well as from your home countries, and the home country of your spouse, to weigh up the pros and cons of divorcing in different jurisdictions.
Carlie: Alexandra, another living situation that’s very common now across the board is where you’re in a de facto partnership, so together long-term, but you’ve never married. How do you navigate the legalities of a separation as an expat in this instance?
Alexandra: You definitely have less legal rights if you are not married. There are so many clients who come to me and say, we’re not married as such, but we have a common-law marriage, you know, we’ve been together, living together for ten, twenty years. That gives them very little advantage in terms of financial outcome. The, the financial outcome on divorce is significantly more generous. In England, a common-law marriage is not recognised.
That means if you are married in a legal marriage that’s recognised in England, then you have the ability to make financial claims on divorce such as child maintenance, spousal maintenance, share of property, shares, savings, investments, that kind of thing. If you’re unmarried, your claims are limited to child maintenance, and to potential claims that you have on a spouse’s property, not a spouse’s property, on a partner’s property, as a result of living in that home and potentially contributing towards that home. But it’s likely to be significantly less to entitlement on divorce.
So, that’s why legal advice on this issue is very important. In particular this is a difficult issue for expatriates. If you are living with your partner unmarried in England, you have recourse to the English courts for potential claims on a partner’s home, as I’ve mentioned. But if you’re living abroad, many jurisdictions do not see a partnership, a couple living together unmarried as a valid legal state.
For example, in Dubai and many parts of the Middle East, it is against the law to live with your partner being unmarried. Therefore, if you were to apply to the local courts in that country for financial remedies, you would be prohibited from doing so. And you may even find yourself in legal difficulties as a result of declaring your unmarried state.
So, these are issues that arise commonly in, in my practice. We’re able to advise unmarried expats who live abroad of potential financial claims that they can make through the English court. But they are as I’ve said more limited, and they have to be very careful and very much aware of the legal implications of living with a partner abroad without being married.
Carlie: And I guess it’s not just in situations where an unmarried couple might be separating, there could be a really tragic circumstance where, you know, one person dies for example, and how does this impact legally on, on the surviving person’s ability to make claims on their estate?
Alexandra: Mm. Again, this is a very important issue, it’s been highlighted in the press in recent days because there’s been a test case in the courts. The English court is starting to realise that this is a very significant issue. There are such a large volume of unmarried couples, and the law needs to be regularised to take into account this stable but unmarried state, and the law is developing all the time to take this into account.
But if you are moving abroad as an expat, it’s very important to take advice on inheritance issues. Find out, do I need to have a will in the country that I’m moving to? What is the process for expatriates to have wills in, in my country in which I’m living? For example, Dubai has set up a wills process for expatriates where they can register their wills at the Dubai International Finance Centre, the DIFC. And that allows non-Muslim expats to make arrangements for their future inheritance needs, especially if they have assets abroad, and to avoid the sharia inheritance rules. So advice before you move abroad, or as soon as possible once moving abroad is essential.
Carlie: What are the sharia inheritance rules, out of interest?
Alexandra: They are the most complex rules you could possibly imagine! (laughs) They involve quite commonly gifting in proportion sums of the estate to male relatives and to female relatives in different proportions. So, you know, commonly this doesn’t impact on expatriates as such, who if they’re Muslim tend to, to take into account what the inheritance rules will be in these countries. But that’s why careful advice is needed, because the, the rules are complex and vastly different to the inheritance rules that you may encounter in your home country.
Carlie: Alexandra, the third issue that you wanted to touch on was when it comes to children. Obviously when you’re an expat and you have children, there are so many issues that come up, and if you’re in a situation where you are separating as a couple, then custody comes into play.
Alexandra: Well there are two main issues that need careful consideration. Firstly, what laws are going to apply to our children dispute? I have to say in the majority of divorces we deal with, and this is very much encouraged under the English legal system, the parties are able to resolve the issues, any issues that arrive concerning their, their children, amicably together, and enter into a parenting plan or an amicable form of agreement, so that they can decide who the children should live with, you know, when contact should take place, holidays abroad, that kind of thing. And it’s very much encouraged for couples to enter into mediation and other forms of ADR like that, so that a negotiated and amicable settlement can be reached to avoid the court process.
And the English court make the divorce process such that the divorce is kept very separate from the resolution of children issues, to make sure that children aren’t used as a pawn or a negotiating tool within the divorce, or the financial arrangements. So, in most cases where expats are involved, I find the couple are able to resolve those matters amicably between them, with the help of lawyers or mediation, or just discussing matters directly. But if that’s not possible, they need to think what law is going to apply to me?
In general, and this happens in most cases, the law that’s going to apply to your children, and the resolution of issues concerning your children, is the law of the country in which you live, in which the child is habitually resident. Unlike divorce, where you’re able to divorce if one or other of the parents are domiciled in England, for child custody and visitation rights and those kind of disputes, the law that will apply is the law of the country in which the child is habitually resident.
Now, for many parents and expatriates, this comes as a real surprise, because they think well I’m British, our children were born in England, why doesn’t the law of my home country protect us while we’re living abroad? Why am I being subject to this alien legal system of the country in which I’m now living? And that, that can be a concern for parents, especially when they’re living for example in a Middle East country, where there is a different regime for child custody.
In general in Middle Eastern countries, the statutory provisions say that the mother shall have custody of young children, and then the father has the ability to take over custody at a later age, when the children reach the age of 11, 13, depending on which country we’re talking about. Now that can a-, be a real surprise for parents, when they had hoped matters could be resolved in a more shared, shared care arrangement. So again it’s really important to take advice at an early stage, to know which law applies to your children, and their future care, so that you, you can make decisions between you before it gets to a stage where court proceedings are necessary.
Carlie: How much do the agreements between separating parents override those laws of the particular countries that you, they might be in with their children? For example in the Middle East, if they have another arrangement in mind, is there wriggle room in the local system to allow for that?
Alexandra: Absolutely. The local courts will not get involved unless an application is made. So you can very happily divorce in the, the courts in the country in which you live, without having to be subject to the court’s decision-making powers in respect of the children. There are some countries, for example Singapore, where the divorce and the children arrangements are coupled very closely.
But if a couple is in agreement and say well we’ve decided, we’ve reached a good arrangement, you know, the children will live with mother during the week and then the father will have you know, one night at the weekend, and one night during the week, and half school holidays, that’s brilliant. You will find that most jurisdictions abroad will be able to embody that agreement in an approved court order which makes it into a binding agreement in the future. We see as lawyers, the agreements that couples, that parents make together, through discussion, assistance with mediators or, or others, tend to be the long-term solution. And much more long-lasting than those imposed without parents’ agreement through the courts.
Carlie: Alexandra, you mentioned in your notes Hague Convention and non-Hague countries. What do we need to know there when it comes to children and custody arrangements?
Alexandra: The Hague Convention, there are many different Hague Conventions, but the Hague Convention that I’m talking about is the Abduction Convention of 1980. This is a very important issue for expatriate families. They need to be aware whether the country they’re moving to is a signatory to the 1980 Hague Convention. Because it will make a vast difference on their ability to relocate from that country with children in the future.
The Hague Convention on Abduction is a convention that was set up to prevent the parental abduction of children from one country to another. It means that if a child is taken by one parent from one Hague Convention country and moved to the other without the a-, the order of the court, or consent of the other parent, then the new country that they, they’ve moved to can order the immediate return of that child to their original place of habitual residence. And that’s important, because there are overwhelming number of studies showing the detriment, detrimental effect of parental child abduction on children.
And this Hague Convention is vital to protect children from being moved by one parent to the other. Of course there are a number of cases, probably every week, where there are vital reasons for a parent wanting to relocate. It may be for domestic violence reasons, a whole host of reasons.
And then those issues can be taken into account. But my advice is for expatriates considering a move abroad – take legal advice, do some research. Is the country I’m moving to a signatory to the Hague Convention? And if it is, what does that mean for me if I only want to stay there with my child for a year, or two years? What happens if I want to move home? Many parents have found, they’ve lived abroad for a year or two, they had no intention of living abroad permanently, but on separation, the mother and the children may have to stay in that foreign country, unable to move back to their home country, if the foreign court doesn’t allow the relocation, or the spouse, the father doesn’t allow the relocation. So these issues are very important to consider.
Also consider the countries that are not signatory to the Hague Convention. For example countries in the Middle East such as the United Arab Emirates. They have strict laws in relation to child abduction, of course, and those tend to work well. But be aware of what the laws are, and how they can impact you. What applications are available, if any, to allow you to apply to the court to relocate? These are important considerations.
Carlie: We’ve had stories in the Expat Focus Facebook groups of, you know, a parent travelling with one child but not having a letter from their spouse to say, it’s OK that my child is leaving the country with their mother or their father, for example. So countries do take the movement of children pretty seriously, don’t they, and agreements of both parents?
Alexandra: Yes, yes they do. And if you’re going abroad, have an agreement in place with your partner, with the child’s father or the child’s mother. Make sure you’re in a written agreement as to how long you, are you going, what’s the purpose, what’s the long stop of the trip? Also make enquiries in the country that you’re going to, to find out what legal steps are needed if any to be able to enter that country on your own with a child.
For example, South Africa has very strict rules in terms of relocation and even temporary visiting of a child to South Africa without the other parent. So, find out what’s required, sometimes it’s important to have a document signed by both parents giving permission for one parent to travel with the child. So, get advice in the country that you’re going to.
Also get advice in your home country as to how can we put this in writing in the correct legal way to make sure firstly you’ll be able to enter into the other country with the child, and also the left-behind parent knows that that parent and child is going to return.
Carlie: So when it comes to these legal issues of divorce, being in an unmarried partnership, child relocation, no matter where you are in the world it’s worth checking out your legal situation and your legal entitlements, if you do have a connection to the UK, before you start any big changes in your life.
Alexandra: Absolutely. Seek advice from an international family lawyer, who regularly deals with expatriate and international family issues. Also, if you’re living abroad, and you want to know where to get the right type of family law advice, approach your embassy, the British Embassy don’t recommend lawyer, law firms, but they mostly have lists of lawyers in those jurisdictions that they know advise in English and advise expatriates, so ask the British Embassy. There are also a number of groups, family law groups that can give recommendations for lawyers.
The International Academy of Family Lawyers is an excellent starting point. They have highly skilled international family lawyers in most jurisdictions around the world. Most of them are English-speaking, so go on their website, find a lawyer in the country you’re going to. Also, Resolution, the former Solicitors Family Law Association, has a list of international family lawyers that are recommended. So get the right advice, because it needs to be a specialist that you’re seeking advice from, because this is a very narrow and specialist area of law.
Carlie: That’s it for this episode. If you have a legal question for Alexandra, or wanna share your own experiences, go to expatfocus.com, follow the links to our forums and facebook groups. You’ll find more episodes on all aspects of expat life on our website, or wherever you get your podcast. And if you like what we do, please leave us a review. I’ll catch you next time!
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