Getting an international divorce

More complex still than considering finances is considering custody arrangements for children of international families/international divorces. Arrangements must be made regarding who the child will live with, how much time the other parent will have with the child, and where contact can take place. These arrangements were historically called custody and access orders and are still known by the same term in other countries; in England, they are now known as Child Arrangement Orders.

Once in place, a child arrangement order may detail where the children will live and when. There are applicable international laws that allow these arrangements made abroad to be recognised by English courts. Because this is a difficult issue both personally and legally, it is recommended that you talk to a specialist child custody lawyer as soon as possible if this may apply to you.

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.

Say for example that your child is not physically present in England and Wales. 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

That last example is one which was considered in the 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. This is a case which has had extensive implications for divorce law solicitors managing international divorces.

Transfers of assets between spouses or civil partners do not usually give rise to a Capital Gains Tax (CGT) charge. However, this rule only applies to spouses or civil partners that are living together at some point during the tax year.

In relation to the family home, if that property has been the couple’s main residence throughout ownership, any gains arising from its sale are exempt from CGT. However, where one spouse moves out of the matrimonial home and buys or rents a new property then relief will usually only be available on their share of the gain for 9 months from when they moved out. This can be extended in some circumstances.