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Interview About Child Abduction

Radio transcription:

Interview between Lisa Grant (Talk Europe Spain) and James Maguire (James Maguire & Co, Family Law Solicitors, Wilmslow)- 7 November 2011

L:  Often we come across articles in the paper about child abduction, a child disappears from a country and is taken to another country and also divorce which seems to be very much on the increase as well it’s very sad to say but what are the laws that in place if those cross countries as well.  Waiting on the phone for me from London I have James Maguire.  Good evening James.

J:   Good evening Lisa.

L: Now for anyone who hasn’t heard you on the show before could you give a little background about yourself please.

J: Yes, I’m an English solicitor and I specialise in family law, a niche area of my practice is actually international aspects so that does involve children, movement of children between countries and obviously divorce as well, jurisdictional disputes, assets overseas and so on.

L:  Now when it actually comes to someone living in Spain for example, how close does Spain and England actually work together in situations like this?

J:  Well if we look first of all between the movement of children between the two countries first of all they are both EU members states and they are also both signatories to what’s called the 1980 Hague Convention and that’s an International Convention which both countries and a number of other EU countries and beyond sign up to which basically regulates what happens if children unlawfully move between the two countries so that is your common example of a parental child abduction.  Whether that’s say ex-pats in Spain they may separate, it could be that the mother decides to unilaterally return to England with the children and takes them. Technically that could be in breach of the Hague Convention and then the father left behind in that example is considering what rights and options does he have both in Spain and in England and of course that works vice versa, if you have a situation of one parent taking children from England and taking them to Spain and you have the parent left behind in England.

L: Right, now you mention the Hague Convention several times and there’s been derogatory remarks made about the Hague Convention, some people say it’s against Human Rights, some people say it doesn’t go far enough.  What’s your view on it?

J:  I think it’s, well, the rationale of the Hague Convention first of all is to provide a speedy resolution in cases of parental child abduction and by that I mean that the purpose of the Hague Convention is to consider where are these children from, so in my earlier example if children have been living say in Spain for the last three, four, five years and are taken by one parent to England an English Court would look at that and say well under the Hague Convention what is the spirit of the Convention, what is it there to do.  It’s there not to look at the welfare which one could argue that the Court could perhaps look at the welfare issues about as in what is in the children’s best interests but that is not the purpose of the Hague Convention, it’s there really as seen as sometimes classed as a “red hot pursuit” to locate children and return them to their place of habitual residence – where do they live from day to day and let’s say as an example it’s Spain.  The English Court for example would be saying we’re not really interested within limits about what is in their best interests we are looking to say and see where should these children be returned to, where do they normally live.  If that is Spain, return them there quickly, the EU Rules say that that should be within six weeks from start to finish and that’s quite quick for any Court system. Return them and let the Spanish Courts sort it out and conversely the spirit of the International Convention is to do the reverse that if a child is taken from England and lands in Spain then the Spanish Courts would do the same in reverse.  Not looking necessarily at the welfare issues but to say that these children or child is from England return that child to England and let the Courts sort it out there.  If the mother wishes to relocate and the father’s consent is not forthcoming let her seek the English Court’s permission to relocate the children to Spain that’s then a welfare issue so you can see the rationale of the Convention being used as a speedy tool to get the children back to where they came from and then let that home Court decide and to that extent I think there is a lot of merit in the Convention because I think you can imagine without it completely and there are a number of countries where they don’t simply subscribe to that Convention then you are relying very much on the domestic laws of that country and one of the big problems with that is that is just the time that it takes to resolve those types of cases so you are not talking weeks you are talking months if not years.

L:  So you’ve mentioned several times that if the mother does this, if the mother does that what’s the rights of the father in these situations?

J:  Well I would say to a certain extent stereotypically, in a lot of cases where a relationship breaks down in my examples the mother is the primary carer, she has perhaps been looking after the children day to day and that, to a certain extent is what happens.  The mother may not feel that she is doing anything wrong but then decides to perhaps to move countries and take the children with her.  In that stereotypically example you are left with the father behind.  You are right.  What are his options, what can he do? Well normally what would happen and in my experience this is not always the correct way of proceeding but this is what I see at grass roots level. The father will take local advice, if the mother has taken the children to England he will probably instruct a Spanish lawyer.  A Spanish lawyer may go to Court in Spain, may seek some domestic orders in Spain with directions for the mother to return with the children.  They are not automatically enforceable in England.  They may be directly enforceable against the mother but if she is overseas that can be problematic.  At some stage which is more the correct answer the penny will drop and the father will realise the existence of the 1980 Hague Convention and through that he would make an application to the relevant government authority in Spain, Central Authority for Spain who would communicate that to their counterparts in England another government body here who would instruct lawyers in England and then the Hague Convention really kicks in and that starts that “red hot pursuit”, where are the children located and once located to preserve the position travel documents are seized to prevent any further travel beyond England and then we have the Court process and like anything there could be some very valid reasons why a parent has decided to move, they could be fleeing because of domestic violence or all sorts of reasons.  They come into England so then of course you have your natural justice where the process is that the father would be making his case and of course in my example the mother would be entitled to oppose that and on occasions there are a number of defences if I move onto that and they commonly can be that the children actually object to returning to England now that very much depends on the ages of the children and the degree of their maturity.  They may not want to go back to Spain.  I was just mentioning the defences that are available because a common one can be, subject to the ages of the children, their objections, not necessarily objecting to returning to the father but objecting to a return to Spain.  Another example can be that the father actually consented in the first place to the mother leaving.  Now evidentially the mother would need to show that and certainly the Court’s prefer that if there is consent that that consent is in writing in the avoidance of any doubt but there have been cases there is from memory a US case where the father actually drove the mother and children to the airport and by his actions he was seen to have acquiesced (consented).  Another defence available is that to order a return would create an intolerable situation which is obviously open to interpretation.

L: Absolutely, now it’s interesting that you mention that the children have a say because I do remember a time where children didn’t have a say in situations like this.  How much are the children actually listened to?

J:  Yes in cases it can vary and there has actually been recent movement.  A lot of EU countries for example Germany will listen to the voices of the children from quite an early age.  England is quite traditional and years gone by if we rewind the clock, five/ten years ago if we were looking at a parental child abduction case and the case was presented that the child actually object, if the child is anywhere below the age of ten it would be very difficult to persuade a Court to consider and take into account those objections.  We’ve moved on a lot and I think that is in part due to the EU Rules which to a certain extent compliment the Hague Convention very much we’re looking at the voice of the child as well and listening to those objections so yes, it does depend on their age and it does depend on the degree of that child’s maturity there certainly was a case last year in 2010 involving the Republic of Ireland and an abduction situation there where a Court considered and upheld the objections of a five year old.

L: Right.

J: So that’s basically…

L: That’s a big change.

J: It is a massive change.  In another case you could obviously have a situation whereby a five year old, or seven year old or an eight year old objects but the Court may still say we will listen to that but it may not be a reason to say the children should stay in England and the Court may still order that there is a return and England is actually very firm, very strong and sends out a loud message to countries worldwide that they will not tolerate child abduction in any shape or form but and in certain situations there is the option potentially for the children to have their own separate representation through that process so they actually have a voice and legal representation is part of it.

L:  Wow things have definitely changed because…

J:  They have.

L: I  have a friend whose parents got divorced then it was all very messy, she was in Court when he happened and then he had strict visitation rights, this is here in Spain but pretty similar to England in the seventies actually like an every other Sunday kind of arrangement and she spent all of her time being out with the other fathers with their kids and things like that and she said that it was the worst thing possible because I said to her that I was going to talk to you about this and she said that say in my case (as in her) that she found it very distressing the way things were done.  She said she would be listening and I’m sure she will be very pleased and I must admit I’m very pleased to hear that things have moved on quite considerably since then.

Let’s move on to the divorce situation now does the divorce situation and jurisdiction come under the Hague Convention as well when people who maybe came over to Spain together got married here or, well I think they get married in Gibraltar and then live here but one of them decides to get divorced and go back to England.  What’s the situation then?

J:  Well first of all if that situation does arise and it’s unfortunate but can be relatively frequent as well, people will move overseas for example to Spain, things won’t work out, separation and divorce may follow.  The Hague Convention does not apply to that type of situation. The Hague Convention only governs children so people often think look at in terms of their family, there’s going to be a separation, it’s their family unit and you would think logically that one law would fit all circumstances, but you can end up with a situation ironically where the jurisdictional issues under the Hague Convention, Spain in that situation, that’s where they live day to day Spain has jurisdiction to do with the children regardless of nationality, but in terms of any divorce potentially under another EU Rule which is called Brussels II either England or Spain could consider the divorce issues and the financial issues which flow from that.  Completely separate rules so as I say a bizarre situation where one country can deal with the children only and another country can deal with the divorce and the finances.

L:  Right, so what if there aren’t any children involved and it’s purely two adults?

J:  Subject to their own individual circumstances and facts you could end up in a situation under the EU Rules for example, they have departed from England, they live in Spain, they’ve been living there for let’s call it, three, four, five years something like that, the relationship breaks down what do they do?  Well first of all potentially you’ve got divorce jurisdiction in England and divorce jurisdiction in Spain. What we have between the two countries and in a number of EU states as well is the “first past the post rule”.  The first person to validly claim divorce jurisdiction wins the race so in that situation it could be that England in terms of the financial outcome is more favourable to the wife and so the incentive (and people can be quite savvy when looking), we call it forum shopping, people will shop around the globe to find the jurisdiction which best suits their case, a wife in that situation in England could be subject to advice, the best jurisdiction for her.  Conversely for husband Spain could be a better jurisdiction for him.  The first person who validly claims divorce jurisdiction wins that race and that basically means that’s where the divorce and the financial settlement will take place.

L: Oh, it all sounds very cold and calculated doesn’t it?

J:  It is and within a domestic case in England, a lot of family lawyers (myself included) are members of Resolution and Resolution is a national organisation which promotes a conciliatory approach to cases and the Courts certainly don’t like people running off to Court, the Court’s don’t always like people employing tactics.  However, because of these EU Rules, the financial outcomes between these two countries or other countries can sometimes be quite stark and because of that, and it is unfortunate and I know there is talk of various committees or international committees of resolution and beyond that those Rules should perhaps be changed because the problem is that once one person manoeuvres their tactics and claims jurisdiction that that can then set the tone for the rest of the case and what unfortunately happens is that there can be a litigation battle, people can be entrenched in their positions and quite aggrieved that something has perhaps occurred behind their back and the net effect of that is the legal costs can ultimately spiral out of control and as the Courts will ultimately say and I always say it in advance, the only beneficiaries in that are the lawyers.

L: Yes, absolutely.

J:  The harsh reality of the present law is that that is the cold reality.  The divorce and the financial outcomes can be completely different and the legal advice and guidance always has to be in that type of situation a person has to have their eyes and ears wide open to all possible options and needs to be in a position, in both jurisdictions, because legal advice is needed in both jurisdictions to compare and contrast what may happen.  Ultimately then it is a decision for that particular person to decide what they want to do. But I agree with you wholeheartedly it is an unfortunate and sad state of affairs that when a situation breaks down people end up effectively playing a game and behind the other persons back.

L:  Yes, it feels like you’re constantly playing chess you have to think two or three steps ahead because the enemy could be coming up behind and divorce is messy and heart breaking enough without having to think for your yourself in that kind of light.

What if (and I’m going to play devil’s advocate for a minute) what if I am in a situation where I decide to get divorced? I mean I’m not but if I was in a situation that I was in a position where I was to get divorced and I decided to handle things on the UK side but my husband says no, come hell or high water we are not dealing with it on that side even as you put it, I’ve won the race first, does he have any comeback whatsoever?

J:  Remotely, there is a possibility. If you’re in your situation a person’s looking at divorce getting divorced in England, that person (yourself in your example) wins the race that’s it. That’s absolutely fine and there’s nothing the husband can do in that situation.  However, a few finer points, he could attempt to challenge the basis of your jurisdiction and you would be claiming in that example jurisdiction on the basis that you both retain English domicile.  He may argue that you are no longer domiciled in England.  Domicile is a bit of a weird concept, it’s where you’re from and you acquire the domicile from your parents and very quickly usually the domicile of your father so if your father’s English then you have English domicile.  To lose that, and I often describe it that domicile follows you round like a shadow, it follows you everywhere and it is very difficult to shake off, but it is possible if people leave England permanently or for an indefinite duration that they can lose their domicile and acquire a new domicile of their choice.

L:  Right.

J: Spanish domicile.  So in that example the husband could challenge English divorce on the basis no – one of you or both of you have lost your English domicile and if successful the English divorce will have to be dismissed, it will be brought to an end, it’s very much a factual exercise.

L:  So from what you’re saying in realistic terms nobody ever emigrates in that case?

J:  Well they can do, it is a question of fact and in cases that I’ve come across you can find situations for example, where people may have moved to a different county Spain but they may have kept the family home in England and decided not to sell it.  That’s a good indication that they’ve not left England permanently. The may have placed certain contents and items in storage.  You will find people (ex-pats) that they may live and may pay tax in Spain and they may be resident in Spain that’s all to do with residence, it’s not to do with domicile.  Almost cut them in half, where are they from, like a stick of rock, where are they from, what does it say in the middle? Are they Spanish are they English but it is possible if they cut all ties with England – but you will be amazed at some of the things I see where people will still travel back to use the NHS, will still use the same dentist in England, they will even get their hair cuts in England and it can boil down to basic facts such as that but they haven’t actually severed all ties with England. So it varies in cases it’s not always dealt with in time it could be possible to leave England after a few years and that was a permanent intention after a few years domicile has changed, it could be that a situation of people living in a foreign country Spain for twenty years but they haven’t severed the ties so they are still domiciled in England but resident in Spain so that’s why I say it’s a complicated area and there are different options and different challenges that people can make.

L:  Have you necessarily seen an increase in the amount of divorces that have been happening over the last few years as a reflection of the economic climate?

J:  I would say roughly no, I wouldn’t say there’s been a change.  Sadly often where there’s people there’s disputes and there will be people who think that because of the economic climate they can’t afford to get divorced and that they may wait and again, unfortunately, people will employ tactics behind the scenes, they will be better off financially if they wait so you could argue in that situation well therefore a decrease but often again conversely, where there are financial pressures because a business or cash flow isn’t the same that that can cause pressures on a relationship which actually unfortunately cause the breakdown of it so equally then there’s an increase on the other side of it so ironically or not it tends to balance itself out.

L: So you would like to think that if people are maybe stopping and waiting then they might have a re-think and not go through with it anyway.

J:  Well there is perhaps it’s a state of society whether in England or in Spain that there isn’t the stigma perhaps as there used to be in terms of the words “divorce” and that a marriage can actually be quite disposable, that there is an easy way out for people and on occasions and it’s a political question at the end of the day, in either jurisdiction is divorce an easy option for people?  You can look at it both ways.

L:  It’s interesting that you should say that because divorce for the Spanish side, for Spaniards themselves it has always been very very very difficult and it’s become easier in recent years but it’s always been quite slack in the UK, I feel, but then obviously every case has to be taken individually.

J:  It does, in England certainly I would see it as a legal process, of course it comes with emotion, people are at a very difficult time.  Often whatever problem there is it can boil down to communication and a lack of communication whether that’s at the outset, I’m not a Relationship Counsellor of course but at what point were there problems in the marriage, were the people facing those problems at the time, what was the communication like between them, was someone trying to say that there were problems in the relationship and was the other person not willing to listen because of course communication works both ways and unfortunately then the rot sets in and at some stage it’s too late. Equally, even though people might reach a junction, a fork in the road, where we can look at a reconciliation or look at a divorce is it now with society that it’s very much faced in one perhaps the obvious direction that it’s not working out so that is the logical way to proceed when as reconciliation should always be in the appropriate case certainly a very realistic option and there are cases that I will come across where (a) you have to say it to the person at the time, is it something that they really want to consider, but often the people themselves and I’ve had a number of cases where they will actually reconcile during the process itself, they will actually realise that perhaps things are proceeding too quickly for them and then the dust or perhaps the realisation of what is happening takes hold that they say, you know what enough is enough, we are going to communicate, we are going to try and make this work and, strange as it may seem, I have also come across a number of cases where they’ve actually got divorced but then months afterwards they have then reconciled and re-married.

L: Well at least we’ve managed to finish this conversation on a slightly lighter note.

J:  It is, it is a very difficult area of law and lawyers will do a job however I think people need to have their eyes and ears as I say open to all available options, international aspects is quite complicated but people’s lives are quite complicated as well.  People just need to be aware of their rights and options so they can just make proper decisions.

L:  Yes, informed decisions.  Speaking of which James if anyone would like to maybe they’ve been listening to this interview and they are in any sort of situation that we’ve actually indicated, how, if someone would like to get in touch with you, how could they do that?

J:  Well I suppose they could contact the studio and you’ll have my contact details.  If I can give my website address:

L:  Please.

J:  Which is www.family-law.co.uk my email address is james.maguire@family-law.co.uk and certainly the studio has my contact telephone numbers.

L:  Yes I have, James as ever thank you very much for contributing again this evening.

J:  Thank you Lisa.

L:  And it is nice that even though we were talking about such a heavy subject, there is a little bit of light there.

J:  There always is.

L:  There always is and you have to look on the positive side you absolutely do.  James as I say thank you very much for your time this evening and thank you for joining us.

J:  Thank you Lisa, goodnight.

L:  Bye bye. Radio transcription:

 

 

Interview between Lisa Grant (Talk Europe Spain) and James Maguire (James Maguire & Co, Family Law Solicitors, Wilmslow)- 7 November 2011

L:  Often we come across articles in the paper about child abduction, a child disappears from a country and is taken to another country and also divorce which seems to be very much on the increase as well it’s very sad to say but what are the laws that in place if those cross countries as well.  Waiting on the phone for me from London I have James Maguire.  Good evening James.

J:   Good evening Lisa.

L: Now for anyone who hasn’t heard you on the show before could you give a little background about yourself please.

J: Yes, I’m an English solicitor and I specialise in family law, a niche area of my practice is actually international aspects so that does involve children, movement of children between countries and obviously divorce as well, jurisdictional disputes, assets overseas and so on.

L:  Now when it actually comes to someone living in Spain for example, how close does Spain and England actually work together in situations like this?

J:  Well if we look first of all between the movement of children between the two countries first of all they are both EU members states and they are also both signatories to what’s called the 1980 Hague Convention and that’s an International Convention which both countries and a number of other EU countries and beyond sign up to which basically regulates what happens if children unlawfully move between the two countries so that is your common example of a parental child abduction.  Whether that’s say ex-pats in Spain they may separate, it could be that the mother decides to unilaterally return to England with the children and takes them. Technically that could be in breach of the Hague Convention and then the father left behind in that example is considering what rights and options does he have both in Spain and in England and of course that works vice versa, if you have a situation of one parent taking children from England and taking them to Spain and you have the parent left behind in England.

L: Right, now you mention the Hague Convention several times and there’s been derogatory remarks made about the Hague Convention, some people say it’s against Human Rights, some people say it doesn’t go far enough.  What’s your view on it?

J:  I think it’s, well, the rationale of the Hague Convention first of all is to provide a speedy resolution in cases of parental child abduction and by that I mean that the purpose of the Hague Convention is to consider where are these children from, so in my earlier example if children have been living say in Spain for the last three, four, five years and are taken by one parent to England an English Court would look at that and say well under the Hague Convention what is the spirit of the Convention, what is it there to do.  It’s there not to look at the welfare which one could argue that the Court could perhaps look at the welfare issues about as in what is in the children’s best interests but that is not the purpose of the Hague Convention, it’s there really as seen as sometimes classed as a “red hot pursuit” to locate children and return them to their place of habitual residence – where do they live from day to day and let’s say as an example it’s Spain.  The English Court for example would be saying we’re not really interested within limits about what is in their best interests we are looking to say and see where should these children be returned to, where do they normally live.  If that is Spain, return them there quickly, the EU Rules say that that should be within six weeks from start to finish and that’s quite quick for any Court system. Return them and let the Spanish Courts sort it out and conversely the spirit of the International Convention is to do the reverse that if a child is taken from England and lands in Spain then the Spanish Courts would do the same in reverse.  Not looking necessarily at the welfare issues but to say that these children or child is from England return that child to England and let the Courts sort it out there.  If the mother wishes to relocate and the father’s consent is not forthcoming let her seek the English Court’s permission to relocate the children to Spain that’s then a welfare issue so you can see the rationale of the Convention being used as a speedy tool to get the children back to where they came from and then let that home Court decide and to that extent I think there is a lot of merit in the Convention because I think you can imagine without it completely and there are a number of countries where they don’t simply subscribe to that Convention then you are relying very much on the domestic laws of that country and one of the big problems with that is that is just the time that it takes to resolve those types of cases so you are not talking weeks you are talking months if not years.

L:  So you’ve mentioned several times that if the mother does this, if the mother does that what’s the rights of the father in these situations?

J:  Well I would say to a certain extent stereotypically, in a lot of cases where a relationship breaks down in my examples the mother is the primary carer, she has perhaps been looking after the children day to day and that, to a certain extent is what happens.  The mother may not feel that she is doing anything wrong but then decides to perhaps to move countries and take the children with her.  In that stereotypically example you are left with the father behind.  You are right.  What are his options, what can he do? Well normally what would happen and in my experience this is not always the correct way of proceeding but this is what I see at grass roots level. The father will take local advice, if the mother has taken the children to England he will probably instruct a Spanish lawyer.  A Spanish lawyer may go to Court in Spain, may seek some domestic orders in Spain with directions for the mother to return with the children.  They are not automatically enforceable in England.  They may be directly enforceable against the mother but if she is overseas that can be problematic.  At some stage which is more the correct answer the penny will drop and the father will realise the existence of the 1980 Hague Convention and through that he would make an application to the relevant government authority in Spain, Central Authority for Spain who would communicate that to their counterparts in England another government body here who would instruct lawyers in England and then the Hague Convention really kicks in and that starts that “red hot pursuit”, where are the children located and once located to preserve the position travel documents are seized to prevent any further travel beyond England and then we have the Court process and like anything there could be some very valid reasons why a parent has decided to move, they could be fleeing because of domestic violence or all sorts of reasons.  They come into England so then of course you have your natural justice where the process is that the father would be making his case and of course in my example the mother would be entitled to oppose that and on occasions there are a number of defences if I move onto that and they commonly can be that the children actually object to returning to England now that very much depends on the ages of the children and the degree of their maturity.  They may not want to go back to Spain.  I was just mentioning the defences that are available because a common one can be, subject to the ages of the children, their objections, not necessarily objecting to returning to the father but objecting to a return to Spain.  Another example can be that the father actually consented in the first place to the mother leaving.  Now evidentially the mother would need to show that and certainly the Court’s prefer that if there is consent that that consent is in writing in the avoidance of any doubt but there have been cases there is from memory a US case where the father actually drove the mother and children to the airport and by his actions he was seen to have acquiesced (consented).  Another defence available is that to order a return would create an intolerable situation which is obviously open to interpretation.

L: Absolutely, now it’s interesting that you mention that the children have a say because I do remember a time where children didn’t have a say in situations like this.  How much are the children actually listened to?

J:  Yes in cases it can vary and there has actually been recent movement.  A lot of EU countries for example Germany will listen to the voices of the children from quite an early age.  England is quite traditional and years gone by if we rewind the clock, five/ten years ago if we were looking at a parental child abduction case and the case was presented that the child actually object, if the child is anywhere below the age of ten it would be very difficult to persuade a Court to consider and take into account those objections.  We’ve moved on a lot and I think that is in part due to the EU Rules which to a certain extent compliment the Hague Convention very much we’re looking at the voice of the child as well and listening to those objections so yes, it does depend on their age and it does depend on the degree of that child’s maturity there certainly was a case last year in 2010 involving the Republic of Ireland and an abduction situation there where a Court considered and upheld the objections of a five year old.

L: Right.

J: So that’s basically…

L: That’s a big change.

J: It is a massive change.  In another case you could obviously have a situation whereby a five year old, or seven year old or an eight year old objects but the Court may still say we will listen to that but it may not be a reason to say the children should stay in England and the Court may still order that there is a return and England is actually very firm, very strong and sends out a loud message to countries worldwide that they will not tolerate child abduction in any shape or form but and in certain situations there is the option potentially for the children to have their own separate representation through that process so they actually have a voice and legal representation is part of it.

L:  Wow things have definitely changed because…

J:  They have.

L: I  have a friend whose parents got divorced then it was all very messy, she was in Court when he happened and then he had strict visitation rights, this is here in Spain but pretty similar to England in the seventies actually like an every other Sunday kind of arrangement and she spent all of her time being out with the other fathers with their kids and things like that and she said that it was the worst thing possible because I said to her that I was going to talk to you about this and she said that say in my case (as in her) that she found it very distressing the way things were done.  She said she would be listening and I’m sure she will be very pleased and I must admit I’m very pleased to hear that things have moved on quite considerably since then.

Let’s move on to the divorce situation now does the divorce situation and jurisdiction come under the Hague Convention as well when people who maybe came over to Spain together got married here or, well I think they get married in Gibraltar and then live here but one of them decides to get divorced and go back to England.  What’s the situation then?

J:  Well first of all if that situation does arise and it’s unfortunate but can be relatively frequent as well, people will move overseas for example to Spain, things won’t work out, separation and divorce may follow.  The Hague Convention does not apply to that type of situation. The Hague Convention only governs children so people often think look at in terms of their family, there’s going to be a separation, it’s their family unit and you would think logically that one law would fit all circumstances, but you can end up with a situation ironically where the jurisdictional issues under the Hague Convention, Spain in that situation, that’s where they live day to day Spain has jurisdiction to do with the children regardless of nationality, but in terms of any divorce potentially under another EU Rule which is called Brussels II either England or Spain could consider the divorce issues and the financial issues which flow from that.  Completely separate rules so as I say a bizarre situation where one country can deal with the children only and another country can deal with the divorce and the finances.

L:  Right, so what if there aren’t any children involved and it’s purely two adults?

J:  Subject to their own individual circumstances and facts you could end up in a situation under the EU Rules for example, they have departed from England, they live in Spain, they’ve been living there for let’s call it, three, four, five years something like that, the relationship breaks down what do they do?  Well first of all potentially you’ve got divorce jurisdiction in England and divorce jurisdiction in Spain. What we have between the two countries and in a number of EU states as well is the “first past the post rule”.  The first person to validly claim divorce jurisdiction wins the race so in that situation it could be that England in terms of the financial outcome is more favourable to the wife and so the incentive (and people can be quite savvy when looking), we call it forum shopping, people will shop around the globe to find the jurisdiction which best suits their case, a wife in that situation in England could be subject to advice, the best jurisdiction for her.  Conversely for husband Spain could be a better jurisdiction for him.  The first person who validly claims divorce jurisdiction wins that race and that basically means that’s where the divorce and the financial settlement will take place.

L: Oh, it all sounds very cold and calculated doesn’t it?

J:  It is and within a domestic case in England, a lot of family lawyers (myself included) are members of Resolution and Resolution is a national organisation which promotes a conciliatory approach to cases and the Courts certainly don’t like people running off to Court, the Court’s don’t always like people employing tactics.  However, because of these EU Rules, the financial outcomes between these two countries or other countries can sometimes be quite stark and because of that, and it is unfortunate and I know there is talk of various committees or international committees of resolution and beyond that those Rules should perhaps be changed because the problem is that once one person manoeuvres their tactics and claims jurisdiction that that can then set the tone for the rest of the case and what unfortunately happens is that there can be a litigation battle, people can be entrenched in their positions and quite aggrieved that something has perhaps occurred behind their back and the net effect of that is the legal costs can ultimately spiral out of control and as the Courts will ultimately say and I always say it in advance, the only beneficiaries in that are the lawyers.

L: Yes, absolutely.

J:  The harsh reality of the present law is that that is the cold reality.  The divorce and the financial outcomes can be completely different and the legal advice and guidance always has to be in that type of situation a person has to have their eyes and ears wide open to all possible options and needs to be in a position, in both jurisdictions, because legal advice is needed in both jurisdictions to compare and contrast what may happen.  Ultimately then it is a decision for that particular person to decide what they want to do. But I agree with you wholeheartedly it is an unfortunate and sad state of affairs that when a situation breaks down people end up effectively playing a game and behind the other persons back.

L:  Yes, it feels like you’re constantly playing chess you have to think two or three steps ahead because the enemy could be coming up behind and divorce is messy and heart breaking enough without having to think for your yourself in that kind of light.

What if (and I’m going to play devil’s advocate for a minute) what if I am in a situation where I decide to get divorced? I mean I’m not but if I was in a situation that I was in a position where I was to get divorced and I decided to handle things on the UK side but my husband says no, come hell or high water we are not dealing with it on that side even as you put it, I’ve won the race first, does he have any comeback whatsoever?

J:  Remotely, there is a possibility. If you’re in your situation a person’s looking at divorce getting divorced in England, that person (yourself in your example) wins the race that’s it. That’s absolutely fine and there’s nothing the husband can do in that situation.  However, a few finer points, he could attempt to challenge the basis of your jurisdiction and you would be claiming in that example jurisdiction on the basis that you both retain English domicile.  He may argue that you are no longer domiciled in England.  Domicile is a bit of a weird concept, it’s where you’re from and you acquire the domicile from your parents and very quickly usually the domicile of your father so if your father’s English then you have English domicile.  To lose that, and I often describe it that domicile follows you round like a shadow, it follows you everywhere and it is very difficult to shake off, but it is possible if people leave England permanently or for an indefinite duration that they can lose their domicile and acquire a new domicile of their choice.

L:  Right.

J: Spanish domicile.  So in that example the husband could challenge English divorce on the basis no – one of you or both of you have lost your English domicile and if successful the English divorce will have to be dismissed, it will be brought to an end, it’s very much a factual exercise.

L:  So from what you’re saying in realistic terms nobody ever emigrates in that case?

J:  Well they can do, it is a question of fact and in cases that I’ve come across you can find situations for example, where people may have moved to a different county Spain but they may have kept the family home in England and decided not to sell it.  That’s a good indication that they’ve not left England permanently. The may have placed certain contents and items in storage.  You will find people (ex-pats) that they may live and may pay tax in Spain and they may be resident in Spain that’s all to do with residence, it’s not to do with domicile.  Almost cut them in half, where are they from, like a stick of rock, where are they from, what does it say in the middle? Are they Spanish are they English but it is possible if they cut all ties with England – but you will be amazed at some of the things I see where people will still travel back to use the NHS, will still use the same dentist in England, they will even get their hair cuts in England and it can boil down to basic facts such as that but they haven’t actually severed all ties with England. So it varies in cases it’s not always dealt with in time it could be possible to leave England after a few years and that was a permanent intention after a few years domicile has changed, it could be that a situation of people living in a foreign country Spain for twenty years but they haven’t severed the ties so they are still domiciled in England but resident in Spain so that’s why I say it’s a complicated area and there are different options and different challenges that people can make.

L:  Have you necessarily seen an increase in the amount of divorces that have been happening over the last few years as a reflection of the economic climate?

J:  I would say roughly no, I wouldn’t say there’s been a change.  Sadly often where there’s people there’s disputes and there will be people who think that because of the economic climate they can’t afford to get divorced and that they may wait and again, unfortunately, people will employ tactics behind the scenes, they will be better off financially if they wait so you could argue in that situation well therefore a decrease but often again conversely, where there are financial pressures because a business or cash flow isn’t the same that that can cause pressures on a relationship which actually unfortunately cause the breakdown of it so equally then there’s an increase on the other side of it so ironically or not it tends to balance itself out.

L: So you would like to think that if people are maybe stopping and waiting then they might have a re-think and not go through with it anyway.

J:  Well there is perhaps it’s a state of society whether in England or in Spain that there isn’t the stigma perhaps as there used to be in terms of the words “divorce” and that a marriage can actually be quite disposable, that there is an easy way out for people and on occasions and it’s a political question at the end of the day, in either jurisdiction is divorce an easy option for people?  You can look at it both ways.

L:  It’s interesting that you should say that because divorce for the Spanish side, for Spaniards themselves it has always been very very very difficult and it’s become easier in recent years but it’s always been quite slack in the UK, I feel, but then obviously every case has to be taken individually.

J:  It does, in England certainly I would see it as a legal process, of course it comes with emotion, people are at a very difficult time.  Often whatever problem there is it can boil down to communication and a lack of communication whether that’s at the outset, I’m not a Relationship Counsellor of course but at what point were there problems in the marriage, were the people facing those problems at the time, what was the communication like between them, was someone trying to say that there were problems in the relationship and was the other person not willing to listen because of course communication works both ways and unfortunately then the rot sets in and at some stage it’s too late. Equally, even though people might reach a junction, a fork in the road, where we can look at a reconciliation or look at a divorce is it now with society that it’s very much faced in one perhaps the obvious direction that it’s not working out so that is the logical way to proceed when as reconciliation should always be in the appropriate case certainly a very realistic option and there are cases that I will come across where (a) you have to say it to the person at the time, is it something that they really want to consider, but often the people themselves and I’ve had a number of cases where they will actually reconcile during the process itself, they will actually realise that perhaps things are proceeding too quickly for them and then the dust or perhaps the realisation of what is happening takes hold that they say, you know what enough is enough, we are going to communicate, we are going to try and make this work and, strange as it may seem, I have also come across a number of cases where they’ve actually got divorced but then months afterwards they have then reconciled and re-married.

L: Well at least we’ve managed to finish this conversation on a slightly lighter note.

J:  It is, it is a very difficult area of law and lawyers will do a job however I think people need to have their eyes and ears as I say open to all available options, international aspects is quite complicated but people’s lives are quite complicated as well.  People just need to be aware of their rights and options so they can just make proper decisions.

L:  Yes, informed decisions.  Speaking of which James if anyone would like to maybe they’ve been listening to this interview and they are in any sort of situation that we’ve actually indicated, how, if someone would like to get in touch with you, how could they do that?

J:  Well I suppose they could contact the studio and you’ll have my contact details.  If I can give my website address:

L:  Please.

J:  Which is www.family-law.co.uk my email address is james.maguire@family-law.co.uk and certainly the studio has my contact telephone numbers.

L:  Yes I have, James as ever thank you very much for contributing again this evening.

J:  Thank you Lisa.

L:  And it is nice that even though we were talking about such a heavy subject, there is a little bit of light there.

J:  There always is.

L:  There always is and you have to look on the positive side you absolutely do.  James as I say thank you very much for your time this evening and thank you for joining us.

J:  Thank you Lisa, goodnight.

L:  Bye bye.