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Old Jul 12th 2017, 2:56 pm   #31
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Default Re: Leave to Remove back to the UK

Quote:
Originally Posted by InVinoVeritas View Post
Having read through this thread I don't believe the OP has lost her UK residency and she could file for divorce in the UK upon her return there.

I think if she went back to the UK with her daughter (simply as a tourist returning from her holidays) and then immediately started divorce prooceedings then I believe this would pre-empt any possible attack under the Hague Convention.

Since the OP has not been on the forum since 6th July, it may well be that this is all moot.
IVV please provide references for this information?

EU law
Legal separation and divorce law across the EU - Your Europe

"Where can you file for divorce or separation?

You can request a divorce or legal separation together with your partner as a joint application, or alone.

You can file your request with the courts in the country where:

you and your spouse live
you last lived together – provided one of you still lives there
one of you lives – provided you are filing a joint application
your spouse lives
you live, if:
you have lived there for at least 6 months immediately before filing
and you are a national of that country.
If you are not a national, you can file only if you have lived there for at least 1 year immediately before filing.

both you and your spouse are nationals."

The OP doesn't fulfil the residency requirements for the UK



DMU
It is a very tricky case. From what she has written, it is likely her husband will prevent her from taking the child if he knows she is likely to stay in the UK. He will have to provide some justification. However, taking the child permanently without permission contravenes the Hague convention on childhood abductions. If he decides to notify the authorities then she will be in very deep water.

I guess she is the one who knows how he is likely to act.

Getting divorced in France would be advantageous for her if that is where the assets are. The expensively renovated house for example and any pension accrued during their marraige outside of France.

However, France is not kind to stay at home mums with no income post divorce. Any lawyer would need to look at whether she is entitled to any benefit rights if she hasn't worked. Need I mention how hard it is to get a job anyway?

Getting divorced in the UK would make it difficult and expensive to enforce the financial aspects of a decree.

I think every couple that moves with children should be informed of the Hague Convention and the possible ramifications if the country they will be living in is a signatory.
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Old Jul 12th 2017, 3:42 pm   #32
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Default Re: Leave to Remove back to the UK

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Originally Posted by petitefrancaise View Post
IVV please provide references for this information?
Based on what the OP has said and assuming she holds British nationality then she is most definitely still UK resident. I attach the Statutory Residence Test:-

https://home.kpmg.com/content/dam/kp...-flowchart.pdf

As we all know, losing UK residency is quite difficult and becoming UK resident again is rather too easy.

In any case this is somewhat academic as the UK Divorce Courts have jurisdication if one or other of the parties is still UK domiciled (see R vs R Divorce: Jurisdiction: Domicile- Family Division, High Court, 2 Sep 2005)
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Old Jul 12th 2017, 3:46 pm   #33
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Default Re: Leave to Remove back to the UK

your own flowchart shows that she would currently be non-resident.
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Old Jul 12th 2017, 3:48 pm   #34
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Default Re: Leave to Remove back to the UK

Quote:
Originally Posted by InVinoVeritas View Post
Based on what the OP has said and assuming she holds British nationality then she is most definitely still UK resident. I attach the Statutory Residence Test:-

https://home.kpmg.com/content/dam/kp...-flowchart.pdf

As we all know, losing UK residency is quite difficult and becoming UK resident again is rather too easy.

In any case this is somewhat academic as the UK Divorce Courts have jurisdication if one or other of the parties is still UK domiciled (see R vs R Divorce: Jurisdiction: Domicile- Family Division, High Court, 2 Sep 2005)

The OP has only to step foot back in the UK and for immigration purposes she is resident again.

If one is in an abusive relationship, I think one removes oneself from the situation as a matter of urgency and then worry about what the Hague convention or other countries laws may or may not do.
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Old Jul 12th 2017, 3:54 pm   #35
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Default Re: Leave to Remove back to the UK

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Originally Posted by SanDiegogirl View Post
The OP has only to step foot back in the UK and for immigration purposes she is resident again.

If one is in an abusive relationship, I think one removes oneself from the situation as a matter of urgency and then worry about what the Hague convention or other countries laws may or may not do.
just like university fees I guess?

There are always, always residency requirements regarding divorce. For the UK,it is 6 months. For Texas (where I live) it is 3 months... etc..

And if she is in abusive situation then of course she removes herself, then the Hague Convention has an opt-out for her. She may well need proof of the abuse. Especially for France which has very strong laws regarding the rights of the child to have both parents bringing them up.
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Old Jul 12th 2017, 4:02 pm   #36
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Default Re: Leave to Remove back to the UK

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Originally Posted by petitefrancaise View Post
your own flowchart shows that she would currently be non-resident.
That is not how I read it (bearing in mind she will visiting the UK again at the end of this month) but in any case her UK domicile is enough for divorce purposes. Once she has started divorce proceedings in the UK then the UK Courts will deal with child residence issues, not the Hague.

Last edited by InVinoVeritas; Jul 12th 2017 at 4:05 pm.
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Old Jul 12th 2017, 4:11 pm   #37
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Default Re: Leave to Remove back to the UK

Quote:
Originally Posted by InVinoVeritas View Post
That is not how I read it (bearing in mind she will visiting the UK again at the end of this month) but in any case her UK domicile is enough for divorce purposes. Once she has started divorce proceedings in the UK then the UK Courts will deal with child residence issues, not the Hague.
Please read either the EU link I provided above or this one provided by the UK government.
https://formfinder.hmctsformfinder.j...-notes-eng.pdf

She is having to deal with 2 separate issues. Divorce law and International law concerning moving children
Divorce.
She has not lived in England for 6 months. Her OH is resident in France.

The Hague Convention on Childhood Abductions is a completely different international convention concerning moving children around most of the world. If the country you reside in is a signatory then it will affect you. It has nothing to do with divorce law. The only reason it has "Hague" in the title is because it was signed into law there.
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Old Jul 12th 2017, 4:12 pm   #38
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Default Re: Leave to Remove back to the UK

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Originally Posted by petitefrancaise View Post
There are always, always residency requirements regarding divorce. For the UK,it is 6 months.
This is completely wrong PF and I attach the link to a very good BE article which deals comprehensively with this matter:-

Divorce From Abroad for British Expats | British Expatriate Community

Note the paragraph:-

The good news is that in most circumstances anyone originally from England or Wales can use the English Courts, on the basis that you are "domiciled" in the UK. Domicile is a somewhat obscure legal concept but means, basically, that you have a "legal connection" with England and that the English courts therefore have jurisdiction to grant you a divorce for instance.
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Old Jul 12th 2017, 4:22 pm   #39
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Default Re: Leave to Remove back to the UK

Even the article you pointed to has
"Sometimes, however, there are problems and judges have been known to reject a divorce on the grounds that the Petitioner is not domiciled in the UK (even though the party concerned may think they are).

When this happens it is almost always because the judge will rule that the party has “˜relinquished their domicile’, usually because they have formed an intention to spend the rest of their days in their adopted country. In those cases the court will often find that the party has “˜relinquished their domicile of origin, and adopted a domicile of choice’."

There are other exceptions- if you married in Scotland or if your first matrimonial home was Scotland, was definitely one for example.

Whilst the author may be correct on an international (non-EU) level, I think you will find that EU law is rather clearer than the article suggests.


However, you IVV are not a lawyer, neither am I. I will reiterate that the OP absolutely needs good legal advice.
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Old Jul 12th 2017, 4:23 pm   #40
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Default Re: Leave to Remove back to the UK

Quote:
Originally Posted by SanDiegogirl View Post
The OP has only to step foot back in the UK and for immigration purposes she is resident again.

If one is in an abusive relationship, I think one removes oneself from the situation as a matter of urgency and then worry about what the Hague convention or other countries laws may or may not do.
The OP can, but it's not at all certain that her daughter can.
It may be that they''ll sail through Border Control, but worst-case scenarios shouldn't be ignored and the father might just be able to lodge Opposition. She'd be in a pickle at Border Control, to say the least. The risk is great....
In addition to advice from the Assistante Sociale and Avocat, there are also several organisations that the OP could contact, e.g. "SOS femmes en détresse" l'Armée du Salut, la Croix Rouge, etc...
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Old Jul 12th 2017, 4:36 pm   #41
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Default Re: Leave to Remove back to the UK

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Originally Posted by petitefrancaise View Post
Even the article you pointed to has
"Sometimes, however, there are problems and judges have been known to reject a divorce on the grounds that the Petitioner is not domiciled in the UK (even though the party concerned may think they are).
Which is why I referred you in the first instance to R vs R Divorce: Jurisdiction: Domicile - Family Division, High Court, 2 Sep 2005 which refers to a couple who lived in France for over 10 years and where the husband still won the right to divorce in the UK despite his wife's legal challenge.

This case has now become established case law and a friend used it to divorce her husband after living for 3 years in France. The OP should have no difficulty doing the same.

And how do you know I'm not a lawyer? Do you think hostage negotiation is done by retired builders
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Old Jul 12th 2017, 4:41 pm   #42
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Default Re: Leave to Remove back to the UK

I didn't know you were a hostage negotiator????

Come on - tell us some interesting stories.

I've got work to do and am looking for diversions....
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Old Jul 12th 2017, 5:42 pm   #43
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Default Re: Leave to Remove back to the UK

As this discussion has given the OP sufficient information I am closing the thread.

To the OP if you wish this thread to be re-opened at any time now or in the future please send me a PM and I will action it for you.

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