Top 5 things to consider before moving abroad
The number of British families moving abroad is increasing every year. Australia, US, Canada, New Zealand, and South Africa are in the top 5 countries of choice, but what should you consider before you move abroad? What if it does not work out?
Some couples find that living abroad can put an additional strain on their relationship and cross-cultural marriages often come with their own distinct set of challenges. In some cases the problems in their relationship are not resolved before they move abroad and become even bigger when living abroad.
International family law cases are complex and each case is unique. So prepare for your particular circumstances in advance and make sure that you are not stranded on the Great Barrier Reef or become sleepless in Seattle.
1. Put your children first
Make sure that you have spoken to your spouse about the arrangements for the children. Consider with your spouse what should happen if you do not decide that staying with the children in the foreign country is for you. Agree with your spouse in writing beforehand that they will consent to your return home with the children if your relationship runs into difficulties. Without such consent it is most likely that you need the Court’s permission to return with the children. Don’t act impulsively. Contact an International family lawyer who has experience in international cases like yours. Make sure the lawyer speaks your language and that they have an international network, especially if you need to issue proceedings in more than one country simultaneously. Don’t rely on a hope that your spouse will agree that you can leave the new country and will not start Child Abduction proceedings and Criminal proceedings against you.
2. Living in different countries
If you and your spouse are to live in different countries following your separation, international issues will have to be addressed about where and with whom the children will live, and suitable arrangements put into place for contact between the children and their ‘non-resident’ parent. In our experience International Mediation experts are extremely effective and can be very effective in helping to resolve the children issues. The important thing to remember is that you should both put the interest of the children first.
3. Prepare Pre-Nuptial and Post-Nuptial agreements
After the Radmacher case, more and more spouses are considering pre-nuptial and post nuptial agreements. If you have already a pre-nup, review it. Does it cover a scenario where you and the family move abroad? Has the agreement identified clearly which Court you both wish to deal with your divorce and which law should be applied? Have you given enough consideration as to how your pre-nup might vary in the country you are planning to move to with your family? How will capital, spousal, children maintenance and pension arrangements be taken into account? All these can vary from country to country. Have you had special foreign legal advice when you signed your pre-nup? Is your pre-nup enforceable in the jurisdiction you will move to? It is essential to seek advice as to the impact of the agreement in the country you are moving to as well as any other country to which either of you has a connection before you go.
While cross-border divorces may be far from straightforward and the legal implications complex, an understanding of the potential issues that could arise and how these should be addressed will enable you to deal with matters as swiftly and painlessly as possible in the event that the unthinkable happens. Forewarned is forearmed.
4. International Jurisdictional issues
Within the EU we have more and more established rules in place. But what if you move outside the EU or perhaps if you move between several different countries but still keep a house or other property in England & Wales? These factors can influence the jurisdiction of any proceedings. The court will look at your intentions and the circumstances surrounding your decision as to where or when you decided to permanently establish a new habitual resident in the country you are moving to. Each case is different and extremely fact sensitive. All relevant factors in your case have to be taken into account. The following list is far from exhaustive:
- are you leasing the property abroad/at home;
- what is your immigration position abroad;
- are your job skills only deployable in a certain country,
- what has been said to friends / family / tax authorities / anyone;
- where are the bank accounts / credit cards / store or charge cards or other accounts and what address has been given to the Bank;
- what residents status did you confirm on your foreign account application?
5. Time is of the essence
Time is of the essence. If there is a choice between two EU member states, then the court in which the proceedings are first issued will then deal with the proceedings ( the so-called “First past the post” principal). This can come down to the time of day the proceedings are issued, not just the date. So don’t delay take immediate legal advice.