Ending a relationship
Dissolving a civil partnership is usually quite a simple process, especially if you and your partner agree that your relationship is over. However, difficulties may arise over the practical issues, such as where to live and the arrangements for children and financial matters.
Things can become more complicated if you have close connections to more than one country. If this is the case, you may be able to dissolve your civil partnership in more than one country too.
Deciding where to bring an application for dissolution
To start with we can tell you if you satisfy the criteria to dissolve your civil partnership in England. In some circumstances you may be able to do so in England and Wales even if you do not live here. This will depend on your own individual circumstances and your level of ongoing connection to this country.
If you do have connections elsewhere, it is important to consider the likely outcomes in those countries and assess where it is best for you, and your family, for the dissolution to take place. As well as the likely financial outcomes, there are lots of other things to take into account. We work closely with a number of lawyers across Europe, and worldwide, to ensure that clients understand where it is best to bring their application for dissolution.
Completing the dissolution process
We have an agreement which specifies that if there were any family proceedings then they should be in a particular country. Will England also consider this as not legally binding?
It is conventional with international families to include what is known as a 'jurisdiction clause' in a marital agreement which specifies the preference for the country where any proceedings should take place. England places great weight on these clauses in marital agreements. It is quite likely that in any forum dispute, England will give considerable weight to a jurisdiction clause in deciding which is the more appropriate country to deal with a case. However such an agreement is irrelevant within the EU as to where the divorce takes place: all that matters is who issues first.
But the financial outcome abroad would have been different due to the marital agreement. Will England just ignore it altogether?
Not at all. It is quite likely England will consider what would have been the outcome if the case had gone ahead abroad and take this into account in deciding a fair English settlement. The court has the discretion to take foreign aspects into account such as foreign marital agreements, and will do so if circumstances show that this is fair. The law in respect of marital agreements applies equally to foreign marital agreements.
We are an international family presently in England. We come from countries which habitually have marital agreements. Would you recommend that we should enter into one?
Invariably yes. It may be that you will live at some time during the marriage in your home country or in another country in which marital agreements are customary and binding. They may become binding in English law subsequently. We recommend that specialist independent legal advice is taken. Lawyers in the countries with which you have close connections or in which you may subsequently live should be involved in the drafting of the agreement. This will maximise the likelihood of it being binding or being strongly taken into account wherever you may be at the time of any subsequent divorce. This sort of agreement can take some time to finalise so put in hand preparation well in advance of the wedding.
I have a marital agreement specifying a EU country should deal matters of maintenance and needs. How does this work?
This is binding on the English courts following a new EU law in June 2011. Even if England is dealing with the divorce, it has to transfer any issues of maintenance, interpreted as meaning 'needs', to the country agreed by the couple, even if that agreement was without legal advice or disclosure and circumstances may have changed significantly.
Our marital agreement was entered into in a country which has applicable law, and we have a clause in which we specify that we would want the laws of a particular country to be applied. As England only ever applies its own laws, how would this clause be treated?
This applicable law clause would be treated by the English courts as if it was a jurisdiction clause and as an expression of a preference that any proceedings were dealt with in the country of the chosen applicable law.
How long does spousal maintenance last?
The court has a duty to dismiss the financial obligations between the parties as soon as possible. This is known as a clean break.
In some circumstances the court may order maintenance for a short period e.g., of two or five years or as appropriate to enable someone to move toward financial independence, for example by retraining or re-entering the workplace. This is known as a term order, or term maintenance. Some term orders can be extended, whereas with others there is a prohibition on extending the term.
In circumstances where a person has been out of work for many years, for example when raising children, a court may order maintenance on a lifelong basis. This is known as ‘joint lives’ maintenance.
Depending on the parties’ pension provision, maintenance may end on the parties becoming entitled to draw income from their pensions.
How is spousal maintenance calculated?
There is no set formula for the calculation of spousal maintenance as there is for the calculation of child maintenance.
When determining whether spousal maintenance should be paid, how much should be paid and the length of time for which it will be paid, the court has a wife discretion to consider all of the surrounding circumstances.
In determining the level of maintenance, regard may be had to the parties’ day to day financial commitments including any child maintenance obligations, and how these can be met from the available resources.
The appropriate amount of maintenance varies significantly from case to case, and specialist advice should be sought.
Deciding the amount of spousal maintenance can be difficult though the lack of clear guidance given by the costs.
Are there any problems with using Dispute Resolution (DR) in international cases?
Definitely. They must be realistically assessed. Because often several countries, or laws, may be able to deal with the dispute of a couple, it is important to establish certain matters before either commencing any form of DR, or often even suggesting it to the other family member. DR should not be considered:
- Until jurisdiction has been established i.e., it is known in which country the proceedings will take place
- Until it has been sorted out regarding which country’s law will be applied
- The whereabouts and safety of any abducted child has been ascertained
- The assets which would be required for a fair settlement to be reached have been secured pending the final settlement, possibly with a freezing order to make sure they are not transferred or dissipated without approval
Only then is it safe and prudent to propose some form of mediation or other DR. Of course the problem is that having issued proceedings unilaterally at the outset, can mean (but not always) that the prospect of out of court settlements becomes more limited. Nevertheless such action is very necessary at the outset in international cases.
Can mediation work if the other spouse or other parent is in a separate country?
Yes. There are a variety of ways in which international family law mediators and other DR professionals work with separated international families to help resolve disputes. This can be via a mediator in each country alongside each person, using webcams, and other electronic devices to overcome the cross-border separation.
What is spousal maintenance?
Spousal maintenance is maintenance that is paid by one spouse or civil partner to their former spouse or civil partner following a divorce or civil partnership dissolution. It is different to child maintenance.
Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life known as a 'joint lives order'.
Spousal maintenance ends if the recipient remarries or enters a civil partnership or if either party dies. It may be varied or dismissed by the courts on a change in circumstances.
How can I stop paying spousal maintenance?
Maintenance ends automatically if the recipient remarries or enters a civil partnership or if either the payer or recipient dies.
The paying party can apply to court for the maintenance to be reduced or brought to an end if there has been an adverse change in their financial circumstances or an improvement in their financial circumstances of the recipient.
When considering whether maintenance can be terminated the court will consider whether the recipient of the maintenance can adjust without undue hardship to the end of maintenance.
My former spouse, the recipient of maintenance, is now living with a new partner – do I still have to pay them maintenance?
Spousal maintenance does not automatically end on cohabitation of the recipient, although some court orders provide for this. He Courts take the view that cohabitation is more uncertain than marriage. Cohabitants do not have the same financial claims against one another in the event of relationship breakdown.
Whilst maintenance will not automatically end, when a party receiving maintenance begins to cohabit it may be appropriate for the maintenance to be reduced or end in light of their cohabitation and you should take specialist legal advice if this is the case.
What happens if I lose my job and I can’t pay the spousal maintenance?
The payer of the maintenance should advise their former spouse of their change of circumstances and should then seek to reach an agreement.
In some circumstances it may be necessary to apply to the court for a suspension of the maintenance order whilst the payer remains out of work.
In the event that alternative employment is found with lower or higher remuneration it may be that either party may then apply to the court for a variation of the existing order.
Do we need to have agreed this?
No, the court can imply a joint intention based on behaviour. Here again, the financial contributions may evidence a joint intention as can assurance made by one partner to the other’s reliance and detriment. This can include express promises or words or conduct that encouraged the other partner to believe that he or she will obtain an interest in the property.
I am intending to enter into a marital agreement abroad. What do the English courts prefer to see to give it substantive weight on any later divorce settlement?
The English Courts still prefer to see:
- A pre-marriage agreement was entered into in good time before the marriage, to overcome suggestions of duress and undue pressure
- Independent legal advice has been sought by both parties to the contract before the document is signed, or at least was available
- There has been full financial disclosure of financial and other relevant circumstances of each spouse
- It is, in broad terms, fair and reasonable
- There was no duress or misrepresentation
It is always a matter of judicial discretion, and each case is determined on its own facts. The existence of marital agreement is one factor to be considered in deciding which country is the best one for the divorce proceedings.¬ If the agreement will be upheld as binding in another country and this agreement is favourable to you, then that country may be better for a divorce than England despite this recent change in the law.
I entered into a pre-marriage or other marital contract in another country. Will an English court uphold it?
Pre-marriage and other marital contracts are not legally binding in England at present. However in October 2010 the UK Supreme Court significantly changed the status and weight given to marital including pre-marital agreements. They held that “the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
That case concerned a German pre-marital agreement which made no provision for one spouse even though the other was very wealthy but which the English court upheld, although the court did make provision for the needs of the spouse in their capacity as a parent. The English courts will give weight to an agreement even if no separate independent advice or disclosure provided reasonable needs are satisfied.
My former spouse, the recipient of the maintenance, is now working – do I still have to pay them maintenance?
It will depend on the circumstances in which the original order was made and on how this change of circumstance affects the financial position of the recipient. It may be that the party receiving maintenance is now earning sufficient income so that the spousal maintenance may end. It may be that it can be agreed that the maintenance may be reduced or end, or it may be necessary to make an application to the court for a variation application.
The legal test is whether the receiving party can adjust without undue hardship.
