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International divorce and habitual residence

International family law is a thorny area and will no doubt become further complicated by the repercussions of Brexit.

I have had a number of enquiries recently from parents who want to see their children who are living abroad. There may be different reasons why they have ended up living in a different country to their child and it is always important to establish the full background of the case before advising.

It is well established that if a child is habitually resident in England and Wales, the English Family Court will likely have jurisdiction to determine the contact and residence arrangements (‘child arrangements’) for that child, in the absence of any agreement between the parents themselves.

Habitual residence is a legal concept which is based on the facts of each case. The case law on the term states that for residence to be ‘habitual residence’ the child must be integrated to some degree in the social and family environment of that country. It does not follow that a child should have the same habitual residence as his or her parents. It also does not follow that, just because a child is not physically present in the country in question there is no habitual residence there.

Let’s say, for the moment, that the child is not physically present in England and Wales. What then? Well, the Court could still be able to hear cases regarding the arrangements for the child where, for example:

  • The child has not established a new habitual residence in another country (i.e. the child is not physically present in England but retains habitual residence in England).
  • The child holds British nationality and habitual residence cannot be established
  • The child has been removed from one part of the United Kingdom to another less than 12 months ago without consent of the other parent with parental responsibility or an Order of the Court (section 41 Family Law Act 1986).
  • Where the order required arises in or in connection with matrimonial/civil partnership proceedings (but see below…)

That last example is one which was considered in the recent case of Lachaux v Lachaux. It deals with two very important legal principles: recognition of foreign divorces and the jurisdiction of the Court in England and Wales to determine arrangements for children residing abroad.

The facts of the case

Here is a summary of the facts in the case.

The mother was British and the father was French. They met in New Delhi in 2008, travelled to various different countries and began a relationship during their travels. They married in England in 2009 then moved to Dubai and had a child together in 2010. Following the birth of the child, however, the parties’ marriage broke down.

In 2011, the father issued a petition for a divorce in Dubai. But the mother claimed that she was never served with the divorce petition and that she was never given proper notice of the proceedings. She then later claimed that she was not adequately represented and that the proceedings were unfair. Despite this, she attended one of the hearings, filed evidence in defence of the divorce and a counter-claim against the husband. The mother was also legally represented at 7 out of the 18 hearings that took place before the divorce was finally pronounced. She also requested orders for custody within the proceedings.

The mother disappeared with the child on a number of occasions during the course of the proceedings in Dubai and breached orders for the father to have access/ contact with his son. It appears that the mother was given a number of chances within the proceedings to attend Court and present her case. The father applied for custody of the child. Various further hearings took place before, at the final hearing in August 2012, the Court granted the divorce and awarded custody of the child to the father.

The mother was charged with kidnapping and was found guilty at a trial in February 2013. She received a suspended sentence of one month, suspended for three years. Just five days after the trial however, the mother applied for custody, or, if that was unsuccessful, for supervised access. The Court allowed her supervised access despite not being physically present in Dubai at the time of the decision. She appealed twice and the appeals failed. Despite having an order for access, she did not see her son.

In April 2014, the father applied for recognition of the divorce in France. The Judge recognised the divorce under a bilateral treaty that France holds with the United Arab Emirates covering the recognition and enforcement of judgments in civil and commercial matters. The mother appealed and was successful on the basis that the findings made by the Dubai Court were contrary to French public policy. It is understood from the English Judgment that the father is seeking to appeal this decision.

Family proceedings in England

In September 2015, the mother issued divorce proceedings in England. The petition was misleading as to jurisdiction and the Court failed to properly investigate whether it did indeed have jurisdiction to grant a divorce. Nonetheless, the divorce was granted in April 2016. The mother went on to issue her application for contact with her son who remained resident in Dubai with his father.

As stated above, there is a provision in Section 2 (1) (b) (i) of the Family Law Act 1986 declaring that the Court will have jurisdiction to determine arrangements for children if the orders are made either in, or in connection with, matrimonial proceedings. The father sought a declaration that the Dubai divorce be recognised in the English Court and to set aside the English divorce on the basis that if the Dubai divorce is recognised then the English divorce is a ‘nullity’ (not legally in existence).

Recognition of divorce

Mr Justice Mostyn considered the facts and granted recognition of the Dubai divorce. Both parties had accepted that the divorce was effective in Dubai and the mother was unable to satisfy the Court that she had no knowledge of the proceedings, had not been provided with an opportunity to participate or that it was manifestly contrary to public policy. Whilst the Judge did not agree with some of the language used in the Judgment he did not find the decision contrary to English public policy.

As such, the Judge had to set aside the English divorce as being null and void.

Jurisdiction to make a child arrangements order

Without the child being habitually resident in England and Wales, and without there being matrimonial proceedings, the Judge therefore had no jurisdiction to hear the matter relating to the parties’ child. Mr Justice Mostyn therefore dismissed the mother’s application for a child arrangements order.

Interestingly, the Judge also said that even if the divorce in Dubai had not been recognisable in England and the English divorce therefore upheld, the provision to allow jurisdiction in circumstances where children orders are being made in, or in connection with matrimonial proceedings is now redundant anyway. When the law was made, arrangements concerning children were considered part of the divorce process but they no longer are. Mr Justice Mostyn held the view that a statutory provision can become redundant or obsolete even if the relevant words are alive in statute.

This is an interesting case and well worth a read if you are bored on an evening. But what will happen when we exit the European Union? How will international family cases be handled then? Only time will tell but it is important, if you have a family dispute which involves different countries, to always seek legal advice.

You can read the Lachaux v Lauchaux judgement here.

Jennifer has experience in most areas of family law, in particular with cases involving children disputes (including international children disputes) and/or domestic violence.

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