Advice Centre

If you are planning to move overseas after your separation or divorce, your head may be filled with all the practical arrangements, like finding somewhere to live and booking a reputable removal company to transport your belongings overseas. However, if you have children with an ex-partner, and they will be accompanying you on your new life abroad, you also need to consider the legal implications of your planned move and, if you need to get consent, how to go about it.

In this article, we look at some of the legal considerations of a move overseas with your child after a separation or divorce.

Does a parent need permission to move overseas with their child after a divorce?

If you are your child’s primary carer, getting permission to move overseas with them may feel unnecessary. However, child law in England & Wales says you need the permission of the child’s other parent, or anyone else with parental responsibility for the child, in order to take your child overseas to live.

If you cannot get the other parent’s agreement to your child’s planned move, you can make an application to the court for an overseas relocation order. The order will specify the country your child will be moving to, so it is not a blanket permission to move abroad at a chosen time but a country-specific order.

The importance of legal advice before moving overseas

If you are from overseas, or part of an international family, it is often assumed that you will not need the permission of your ex-partner or a court in England & Wales to move home with your child. However, it is best to check if permission is needed because you do not want to fall foul of the law regarding children and be prevented from leaving with your child or your child being ordered to return.

A parent does not need a former partner’s consent to leave the UK, but you will need consent for your child to move overseas if your child is classed as habitually resident in the UK.

Habitual residence

Habitual residence is a legal concept. A child’s habitual residence is not necessarily the same as your domicile or your child’s domicile. For example, you may be in the UK on a skilled worker visa or family visa. You may not view the UK as your ‘home’ if you always planned to return to your home country or move again to further your career. However, your child can acquire habitual residence in the UK through your settling down, enrolling the child in school and by your doing all the usual activities to make a country feel like home, even though you know your time in the country will be limited as you never planned to apply for indefinite leave to remain or British citizenship.

If you are unsure if you need permission because of your family circumstances or whose permission you need, then it is best to take legal advice before you commit to your planned move overseas. That way, you have plenty of time to negotiate an agreement or secure a relocation order.

How to obtain court permission for a move overseas with your child

It is always preferable to try and negotiate an agreement with your ex partner over your child’s planned move overseas. The negotiations could include detailing the contact arrangements or even agreeing to an international family law mirror order in the country you are relocating to so your former partner has the security of an enforceable contact order if concern about contact not going ahead is the stumbling block to securing their agreement.

If you have to apply to the court for an overseas relocation order, it is best to give yourself plenty of time to make your application and to get a decision before your planned move. When determining a relocation order application, the court will assess what order it believes to be in the best interests of your child, so it is good practice to frame your case about why the move is good for your child. For example, the opportunity to grow up with a large extended family or experience a new culture or excellent education.

What happens if you do not get permission to move overseas with your child?

If you do not get the permission from your former partner or the court to move overseas with your child then you can still make the move, but your child cannot move with you. Sometimes parents contemplate moving without an agreement or court order but, under UK law, you could be found guilty of child abduction. In addition, your child could be made the subject of a return order to the UK where the English court would decide whether your child should live with you in the UK or overseas or live with their other parent and have contact with you.

 If you take a child overseas without the other parent’s agreement or a court order then you have more of a battle to get court permission. That’s why it is best to try and negotiate an agreement or secure a court order.

Contact IMD – International Family Law Solicitors

In this difficult time, our specialist multi-cultural team of international family solicitors can offer you expert advice and representation in all aspects of divorce, separation, finances and issues relating to children. For an initial consultation, call the International Family Solicitors at IMD Solicitors on 0330 107 0107 or request a call back.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.