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  1. Law
January 2, 2019

Expatriate law: plan to avoid the ‘point of no return’

By Arun Kakar

The breakdown of a marriage abroad can have dire consequences and highlights the need for expatriates to plan their move abroad carefully, writes Alexandra Tribe

One in ten British people live abroad: that’s a lot of expatriates, and it’s not just retirees looking for sunny climes. Many British professionals are being lured to expat hubs such as those in the Middle East and Far East by the promise of career progression and tax-free lifestyles.

When posted abroad, a professional worker – particularly when moving with a family –  will usually receive plenty of support from their employer with regards to practical issues such as visas, housing and schooling. In the excitement of the move, few expats will give any consideration to the potential fallout of a relationship breakdown. Yet, when children are involved, the breakdown of a marriage abroad can have dire consequences.

The removal of a child from their place of habitual residence by a parent can constitute child abduction. By moving abroad as an expatriate, a child can acquire habitual residence in a new country immediately on arrival. Habitual residence is a question of fact, and depends on the integration of the child in to life in their new home. It comes as a surprise to expats that their children can acquire habitual residence in a country so quickly, even if they did not intend to remain abroad permanently.

Consequently, if a marriage breaks down while a couple are living abroad, a parent (typically the mother) cannot return to the UK with her children if her spouse insists that the children remain with him. Parents wishing to return home with their children without their spouse’s consent may gamble on whether to seek permission from the courts in their expat home to relocate, or leave without permission and face the consequences.

Left-behind parents from countries that are signatories to the Hague Convention on Civil International Aspects of Child Abduction 1980 (the 1980 Hague Convention) can make an application under that convention seeking a return of the abducted child back to the child’s place of habitual residence. Left-behind parents living in countries that are not signatory to the 1980 Hague Convention, can often secure the return of British abducted children through wardship proceedings through the English courts.

It is understandable therefore that some parents find themselves ‘stuck’ abroad, not wanting to leave without their children, and not being allowed to take them. Indeed, Globalarrk, the charity specialising in supporting stuck parents around the world, says that 98 per cent of individuals who contact them describe themselves as ‘primary carer mothers’.

The situation is exacerbated when the primary carer of the children is unable to remain in her expatriate home following divorce due to visa issues. Women have found themselves forced to return to their home country without their children.

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Recognising this problem, some expat hubs have adapted their laws and processes to ensure families can stay together. For example, in Dubai, the cancelling of a wife’s spouse visa following divorce used to mean she had 30 days to leave the country. The UAE Cabinet has changed the law to allow divorced women one year residence in Dubai without the need for a sponsor. Case law in Singapore also seems to be moving in this direction.

Nevertheless, the law as it stands highlights the need for expatriates to plan their move abroad carefully, and take legal advice to consider whether a date for repatriation should be agreed before relocating.  It is also perhaps time for businesses that regularly send employees overseas to educate expats of the potential problems that can occur if a relationship does break down when a family is posted abroad.

Alexandra Tribe is the founding partner of Expatriate Law

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