Making the decision to separate from your spouse is never easy, and you may be unsure about whether you will eventually reconcile. If you are not sure you are ready to divorce and bring your marriage to an end, or divorce is not an option for you, you may decide that formal separation is the best option.
If you choose to separate, you should set out the terms of separation in a separation agreement. However, matters can be a little more complicated where there is an international element to your family, your assets or your job. In this article, we look at separation agreements and how they might work for international couples.
What is a separation agreement?
A separation agreement is a written agreement that sets out your practical and financial arrangements while you are separated. Most separation agreements cover:
Who is responsible for paying the mortgage on your home, rent or any other household bills
Who will live in the family home or what will happen if it is to be sold
What will happen to any shared debts
What will happen to any savings, investments or other assets
Whether one party will pay maintenance support to the other party
Arrangements for children including who the child will live with and parental access
It is straightforward to draw up a separation agreement where both parties can agree, but we would always recommend seeking advice from a specialist solicitor to protect your position. This is particularly important if you or your partner is considering moving abroad as you will need specialist international family law advice to ensure you can enforce any arrangements you make with your former partner.
Can I enforce a separation agreement in another country?
This is the most complicated element of international separation agreements. While a separation agreement is a legal document which is recognised as a contract by the UK courts, it is not a legally binding document and is not filed anywhere. This can mean your agreement is unenforceable in another country. However, if you are concerned that your former partner may move abroad and will not adhere to the terms of the agreement, we can provide specialist advice for your circumstances.
What is judicial separation?
A form of separation that you might wish to consider is “judicial separation”. Judicial separation is similar to divorce, but it will not bring the marriage to an end. However, judicial separation gives the parties the power to apply for a court order to deal with financial matters. A court order can usually be enforced in another country if one partner moves abroad depending on the laws of the country where they are resident. We can advise you as to whether judicial separation might be appropriate for your circumstances.
Can I ensure my former partner pays Child Maintenance if they move abroad?
Enforcing child maintenance can be challenging, but there are ways to ensure that your receive what is due to you.
If both you and your partner agree to the terms of child maintenance between yourselves, this is known as a ‘private arrangement’. Making a private arrangement gives parties the power to decide how much will be paid, how it will be paid and when it will be paid, but if you enter into a private arrangement for child maintenance you will not be able to enforce the arrangement if your spouse moves abroad and stops paying.
Reciprocal Enforcement of Maintenance Orders (REMOs) are international agreements between the UK and other countries which can help parents to recover child maintenance from a partner that lives abroad. There are more than 100 countries which have such agreements with the UK.
You can make a REMO application which will be enforced according to the laws of the country where your former partner lives.
IMD Solicitors understand the difficulties and emotional strain families go through when a marriage breaks down and are here to help ensure the best possible agreement is put in place. Get in touch with our expert separation agreement solicitors to make an enquiry.
Contact our Separation Agreement Solicitors in Manchester, Birmingham and London
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.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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