Divorce with an international element

Melanie Bataillard-Samuel for Smart Divorce

Tamsin speaks to international divorce lawyer Melanie Bataillard-Samuel of MBS Family Law. Whether you have assets abroad, a spouse living abroad, assets in the UK but you live abroad, this episode is for you.


Melanie Bataillard-Samuel founded MBS Family Law in 2022 to provide specialist divorce and family law advice to international families based either in England & Wales or abroad.

With over 14 years’ experience as an English family lawyer, Melanie is an expert in all areas of divorce and family law with a particular emphasis on cross border matters with France and Switzerland. Family law matters can often require input from other specialist professionals, such as barristers, accountants, or foreign lawyers, and Melanie has an extensive network that can be relied upon to assist in all matters.

www.mbsfamilylaw.com

Twitter: https://twitter.com/mbsfamilylaw


Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.

You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using https://calendly.com/tamsin-caine/15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK

Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
https://smartdivorce.co.uk

P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it by scanning the QR code…

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Transcript

(The transcript has been created by an AI, apologies for any mistakes)

Tamsin Caine 0:06
Hello, and welcome to the Smart Divorce Podcast. I’m Tamsin Caine and I will be your host during this our series six of the podcast. We’re delighted that you’re joining us again, and hope that you really enjoy today’s episode. During series six we’ll be speaking to other divorce professionals who help in perhaps some of the more unusual ways. So we will be speaking to lawyers who deal with international divorce. We will be speaking child inclusive mediation, to name a few. I really hope that you enjoy today’s episode. Let’s jump right in. Hello, and welcome to today’s podcast. I am delighted to be joined today by Melanie Bataillard-Samuel, honestly, I knew this was gonna happen. Right? And we’d like you introduce yourself, Melanie, because I’ve failed miserably. Having been told how to pronounce your name two minutes ago already failed.

Melanie Bataillard-Samuel 1:13
And it’s not an easy name. The name is Bataillard-Samuel. It’s Melanie Bataillard-Samuel and I am a Family Law solicitor but I specialise in international family law. And most of my work is European based. So primarily the French market, but also wherever you are

Tamsin Caine 1:32
Fantastic. And that is why we have asked Melanie to join us today is, we’re going to talk about international divorces. So because that is the area she specialises in, and Melanie is also on the National Committee for resolution as well as is it just the National Committee these days? Are you still on half a dozen others?

Melanie Bataillard-Samuel 1:54
I’m so I’m on the National Committee. I’m co chair of the innovation group resolutions Innovation Group. I am also now the interim chair for the brand new well being committee. I am NC rep so the liaison for the National Committee on to the Juarez National Committee. But that’s that’s it for the moment with resolution.

Tamsin Caine 2:19
Oh yeah, we don’t want you to get bored.And you have recently set up your own practice as well?

Melanie Bataillard-Samuel 2:35
I did. In April, literally, the Tuesday after the Easter weekend. I started while I opened up a mess family law. I’ve been thinking about doing it for a while. But there was always like always some really good ideas. It’s a good time to do it. And then I decided yeah, let’s do this. Now we’ve all learned how to work remotely and work from home. And it’s totally doable. So let’s do this. So it’s been a interesting few months. A lot of fun.

Tamsin Caine 3:02
Everything keeping you busy right now.

Melanie Bataillard-Samuel 3:04
Yeah, exactly. as the time progresses, I take on more, I’m also doing other committees, and I’m doing other work, and it’s just kind of like, keep me busy. I’ve just had a holiday where I’ve worked into our holidays. So yeah, it’s great.

Tamsin Caine 3:16
You may need to learn how to say no, but sometimes. Absolutely. So let’s, let’s start about to think about like people who might want to be getting divorced in England and Wales. So we’re talking about the law in England and Wales because Scotland and Northern Ireland on a different situation. So specifically, there, what, in order to get divorced in England and Wales? Tell me tell me what, what your position has to be jurisdiction wise.

Melanie Bataillard-Samuel 3:53
I mean, I think a little bit before that. So think about the whole international stuff. It’s not just divorce, you know, where do I start my divorce, it could be that you’re divorced somewhere else. And you also need to be doing something in here because of other reasons. So you might have an asset here or something. But if you were thinking, I need to be divorcing in England. First of all, sit down think Why do you want to do this and England isn’t the right place to be doing it? Is it because you’re living your full time you and your partner or ex spouse or whatever are actually living your full time? So that makes sense. Is it because one of you is here but the other one is somewhere else? And again, that could work so even if you are the one living abroad, but your spouse is here, you could still do that petition? Is it that neither of you live in here, but you’re what’s called domiciled. And that’s a bit tricky, and you really need to have advice on that because domicile and resident have different meanings in England according to what you’re trying to use them for. So as for tax purposes, is it for Family Law purposes? Is it for commercial law? purposes isn’t for employment purposes, they will have a different meaning. But in family law, you know, residence is where you’re living domicile is where do you have a strong link with effectively? So you could say, well, I was born in England to English parents who were living in England at the time of my birth, for example. And therefore, I consider myself domicile and I have family here that I’m very close to, and this is the language they speak. And this is where I have assets. And, you know, if you can build that strong relationship with the country, then the odds are you are domicile, but then that’s quite flexible. Because you can say, Well, I’ve been in France for five years. And actually, you know, I’m a Francophile. And I want nothing to do with England. I don’t speak to my family, and I have no intention of dying and being buried somewhere in the Loire Valley and not necessarily domiciled in England. So it’s tricky. But that is also an option. So really, it’s you know, are you resident is just spouse, resident Dorito. himself, and then also the residents that are different kind of, how long have we been resident? Have you been here for like six months? But you’re also domiciled? Or have you been here for 12 months? Well, this little extra complications, but yeah, it’s primarily is Where are you living? And where do you consider yourself from as well?

Tamsin Caine 6:12
Okay. And why might you want to get divorced in England and Wales, as opposed to somewhere else in Europe.

Melanie Bataillard-Samuel 6:27
I mean, there’s, it used to be that England was a divorce capital of the world. And that’s what you would hear in the press, everyone was talking about how this is the best place to divorce, you want to be doing it in London, because it’s just so much better, blah, blah, blah. I don’t think that’s true anymore. And I don’t think it was true in the first place. But I don’t think it’s true anymore. Because of the way the rules have changed. And particularly to European stuff, post Brexit, you don’t have that the first person to start in the first country will have that country deal with their divorce, or if it’s something that works anymore. So you really need to think really carefully about where you’re going to start to work and why you want to do it there. Some people, it’s because they have a link here. So their spouse is here, or they’re living here or whatever others, it’s because they speak a language. And they don’t speak the language or understand the language of the country they’re living in. So let’s say they’re in the Middle East, they might turn around and say, I don’t understand I don’t speak the country, I don’t understand the cultures. Others, it’s because it would be really detrimental for them, let’s say to do it in that country, because perhaps there are limited spousal rights, or perhaps they would share things in a very uneven fashion. For example, they might just choose this as the matrimonial regime and therefore your spouse does everything and you get nothing. Sometimes it’s because the only place where there are assets is in this jurisdiction, there might be a property here or a pension fund, that might be the only thing or the biggest asset we need to be dealing with. I find that Europe, often what it is, is the idea of disclosure. Some countries don’t do full financial disclosure as part of divorce, they will simply say, oh, what assets? Do you have fee tell us and if you say I have nothing, they’re like, okay, this person is nothing. We’re not separating anything. We do full financial disclosure, we have very detailed documents to complete, the court is really hot on finding out what there is, for me to be able to move on with their lives, and how have you split things in a way that makes it equitable for everybody. And so that, that disclosure is important for some people, because they’re like, Well, I don’t know what there is, I mean, the spouse that wasn’t earning a living was at home, not just but was at home, raising the family and looking after the house. And I don’t know what we have in savings for pensions or So sometimes that’s an incentive as well. So that there are multiple reasons. And then obviously, like, I go back to the first one of divorce capital of the world as because of the way we do things here. It’s it always looks more generous, but it’s not about being more generous. It’s the fact that the court will look at so many factors because they’re able to look at so many factors, a lot of civil law jurisdictions, like for example, France, they have very defined outcomes, you know, they have a matrimonial regime that you have to follow. That’s how you separate your assets. You know, the the code cvwd sets up very clearly how you’re going to do a separation. In England, we look at everything we look at, you know, how long the players were married, what the assets are, and who contributed working with their independence and what future income is going to be and what future needs are going to be and compensation are all these little things pop up and the court will will see what’s relevant and what works works and what doesn’t work and what isn’t necessary and then come to the decision. So it often for other jurisdictions looks very favourable. But it’s just different More thorough, I think we’re looking at separating assets. So yeah, sometimes there’s also the idea of that person will get a better outcome they do here.

Tamsin Caine 10:09
Okay. And are we? So I know that for people who are like, there isn’t really any question because they live here, they’re domiciled here, they’re going to do all their stuff said they’re gonna get divorced it that they will divorce here and they’ll separate their financial assets here is the other people who do those things in different places, they might get divorced somewhere, and then come in so financial assets out here, because that’s it.

Melanie Bataillard-Samuel 10:39
Yeah, definitely. Yes, basically, I, I’ve come across loads of times where people will have gotten divorced somewhere else, because that’s where they were living maybe. And all that’s whether they were living with their kids or whatever. Well, that’s where their spouse starts at first, for example, I pre Brexit, and so decisions were made there. And then they come as it becomes the English courts and say, well, actually, we have a property here or a pension fund or assets that might the first contract dealt with the divorce can’t decide on or wasn’t able to decide on or was unwilling to decide on. And therefore, I would like you now to look at these assets. So sometimes, it’s registered straightforward of you need to sell the property as per the assets, or sometimes it’s a bit more complicated, because you’re basically looking at, you know, perhaps in the first jurisdiction, there wasn’t spousal maintenance being proposed, because it’s just not an option there. So and that person requires spousal maintenance. So maybe the court it’s a big Navy, but maybe the court might say, Okay, well, we can look at that, or usually, it’s going to be something like a pension fund, a lot of countries do have pension shares. So if you have a really big pension fund here, and you’re like, well, actually, I’m entitled to a share of that, the court will then have to look at that. It might be that one of the family homes was here. And the court might say, Well, hold on, this used to be the family home, this should have been dealt with, we just split that up as well. So there’s, that might happen. So often, it’s kind of like a mop up, you know, you’ve done in one jurisdiction that couldn’t look at everything, you come and do it here. I touched on briefly about maintenance. I’ve had cases in the past where there was something going on South Africa, the divorce was in South Africa, but actually couldn’t deal with the aspect of spousal maintenance. And we ended up going to the court here and saying, Well, let me look at everything else. And try to wrap it in the spousal maintenance aspect. And that was something the court there’s all but you have to be really careful, because although part for the Matrimonial Causes Act allows you to do financial remedies after an overseas divorce, there are certain hurdles and certain criteria that you have to address. And it’s not always obvious. And it’s not always just because you think you have a case that you will have one. So, you know, there are certain things you have to make sure of and, you know, if you’ve got a pension fund here, then obviously the other country couldn’t deal with it. The court will definitely deal with that. But if you’re asking for maintenance, the court might turn around say no, that’s not applicable, because that’s already been dealt with by another jurisdiction. Or if you’re asking to deal with certain assets, the court might say, Well, no, because there’s no reason to trigger us dealing with things because for example, you might not have had primary residence here, whatever. So you really need to look at the rules and have a serious think about it. But it’s always available as an option to think about. And what’s really important to remember is, it’s not a cheap option. So it’s not just, I’m gonna file my format. And that’s it, you have to ask the court for permission to follow the format. So you have to go to a judge and say, This is why I think you should be looking at this. And that in itself requires a hearing with a statement and support. And the court have to look at it. So yeah, this makes sense. Okay, now you can file your form A. Okay, now let’s start before proceedings. So it’s, it’s an extra hurdle.

Tamsin Caine 14:03
Okay, just for our listeners. What’s a Form A,

Unknown Speaker 14:07
Ah, sorry. The format is the name of the application form that you have to complete if you’re asking a judge to make a decision on how to separate your finances. So there’s a form A, there’s a Form A1, and they deal with different aspects of what’s financial remedies. So how do you separate your assets? And depending on what you’re looking for, you would fall into that form? Okay. Yeah, that’s a shorthand.

Tamsin Caine 14:34
So would we, you’ve got, let’s say, you’ve got assets in France, for example. You’ve separated certain assets that you held in France, in France, then you coming to England and saying, Can you just deal with these ones that haven’t been dealt with over that? Is that basically what we’re doing?

Melanie Bataillard-Samuel 14:59
So best We have to do is you have to wait for the proceedings in France to be totally finished, there has to be no room for appeal. Right. And you have gone through the entire process. Yeah. And we’ve got to the final decision, and the court can make no further decision on any assets get, then you can come to England and say to the court, these are the assets that are in England, the French court was unwilling to deal with this, please, can you make a decision? So I had a case once where there was a French divorce, it was ongoing for years, because French divorces last four years, because you can appeal everything for any reason whatsoever, which is not what we do, and doesn’t work on our jurisdiction. But after many years, that the French courts have been unable to deal with an English property. And in the process of the differentia divorce, the husband had sold the English property, transferred into cash, and then just had it sitting in the bank spent some transferred some over into other countries, obviously, not France, because then it would have become an asset decision on. And so the wife came to the English courts and said, I’ve had this divorce in France could touch nothing of the English assets. This is what’s happened to property. Can you look at this? And the court said, Yeah, of course, we’re going to look at this. So they then started the equivalent of full blown financial remedies. So how do you separate your assets, to look at that specific amount of money and to make a decision on what will be a fair splits of that bearing in mind? What had happened in France, and because the wife had come out very badly at the French proceedings, because of the matrimonial regimes and how those were not in her favour, she got a larger share of what was in England to create a more equitable split in the eyes of English court, which is not what a French court would have done, but it’s how the English court viewed it. So it’s kind of the mentality, the thinking behind it was she didn’t get any maintenance, she didn’t get enough to rehouse herself. And that’s give her a bigger share, to make sure that she’s protected sort of thing, which isn’t how the French would do it. But it’s how we look at things.

Tamsin Caine 17:09
Okay, it’s very complicated, isn’t it?

Melanie Bataillard-Samuel 17:12
Yeah. And it’s, it’s not, you have to be really careful how you’re running your case in that other country, if that’s what you have at the back of your mind. Because doing certain things might create a negative knock on effect. In England, for example, you know, the court might say, why should that’s been addressed? Therefore, we’re not touching it. Even if it wasn’t a favourable outcome. We’re not looking at that. So yeah, it’s complicated. Also, it’s quite expensive, as all court proceedings are. So a lot of people don’t necessarily want to do that, because they spent a fortune in one country, why would they want to do it in another? But I think for things like pension sharing, it’s really important that you look at that, because pensions are often overlooked in this jurisdiction anyway. So if you’re also looking at coming from another country, it’s a shame because it’s, it’s an important assets.

Tamsin Caine 18:09
Yeah, absolutely. If I was going to ask you something that came into my head while we were talking about what was it about? I’m sure it’ll come back to me in a minute. Surely one of those days? And what about if you’ve got if you’re having a normal divorce in an English court? So divorce Princeton, in English, finances being considered an English cop, you’ve got overseas assets? How How are those viewed? So say, there’s a property in? Let’s stick with France? So property in France, for example, or a pension held in another jurisdiction? How are they been set up by their English club?

Melanie Bataillard-Samuel 19:02
So normally, what the English court does is they want advice from that jurisdiction, to usually find out how that jurisdiction would separate the assets. And also what would that jurisdiction do with an English order? Could they uphold an English order? So it’s not that the English court is going to apply French law but it’s like they want to know what will be the likely outcome and France, they would want to know what the French be able to do the equivalent of a part three. So would they be able to say, Oh, you’ve had an English divorce. Now let’s look at the French assets separately. And then they want to know things like, you know, how do you enforce an English order? Would it be respected? Do you have to apply to the French courts for that English order to then be turned into a French order to then be upheld by the French courts, things like that. So they’ll want to have all that evidence, just to make sure they understand how it works and They may very well make a decision on all those assets. So it’s a little bit weird in France at the moment, because there, I think, like a lot of Europeans that kind of annoyed with the Brits for Brexit. And I’ve had some courts say, of course, will uphold an English order, of course. But why wouldn’t we? And then I’ve had other courts and other parts of the country say, Are you kidding me? You chose to walk out of the EU, we’re not going to, it’s really petty. But that’s. So I’ve had like Persian courts say yes, of course, we’re going to enforce this in the same way that Persian courts will enforce orders in the states have had orders in South of France, where the judge says, whatever, that’s your decision. It’s not ours. So it’s, and then of course, they appeal it, and it goes up to a higher judge, and the higher judge will eventually find in favour of the way things should be, but it’s complicated and expensive. So it’s, it’s really tricky, you need to be really careful about that. And that’s why the exports want to know the position is so I’m finding at the moment that So, prior to Brexit, when we were all in the EU, the way petitioners work as whoever’s first purpose got their petition up and running first, that’s country would make all the decisions on divorce, and all finances, and the other country would accept it, because it was first in time Soviet post Brexit, we don’t have that anymore. So in the EU, or the rest of the world, it’s no longer about this first time, some courts may turn around and say, Well, look, we’ll let England sorted out, because they will first and then we’ll see what happens. But the majority are very much thinking of you know, we, you started a legal position in this country, we’re going to run it as well. So you have a lot of concurrent divorces running at the same time in parallel. And then it becomes a matter of the countries deciding who should be doing it according to where the assets are. So if you’ve started, perhaps, I’ll give you that believe I started in England first. And then somebody starts in France. And the French courts might turn around and say, yeah, we can suspend that wait and see what goes on in England. But actually, we’re just gonna let it run because you know, your English and we don’t like you. And you think I’m joking, but the English courts will then turn around, say, Well hold on a moment, should we be doing it here? Because Do we have enough assets? Is there a reason for the English courts, we make a decision? And if you make a decision here, will the French uphold it? So in some cases, the English courts are turning around saying No, there aren’t enough assets here, or there are no assets here whatsoever, even though you might live here. Everything’s in fronds. So we’re going to shunt it over to the French court to decide because that makes sense. And because we know that if we make an order, the judge might overturn it. So what’s the point? So it’s, yeah, it’s difficult. But saying that, if you go further afield, for example, if you’re looking at certain countries in the Middle East, the English courts might say, Well, look, now obviously, it’s fair that we make the decisions here because they might not be able to deal with those assets in that jurisdiction, or it might be unfavourable to one person, or actually, those jurisdictions would enforce the laws of the country where you were married in any event. So if you’re married in England, they’re going to do that anyway. So you might as well just do it here. It really depends.

Tamsin Caine 23:28
Okay. I’ve remembered what I was going to ask if. So, we talked before about filling in the form A or form a one? Is it still an option to use, like mediation or collaborative? Or do you have to go to court in the kind of, in that sense the word to get the decision made by the judge, if we’re looking at non UK assets?

Melanie Bataillard-Samuel 23:59
So the forum’s still have that section which asks you have you gone from the EU? Have you tried me Good, okay. And it asks you for exemptions, you know, if you if you haven’t, so if you have gotten the mediator has to sign off on the document, should they sign off and explain why there you are, where you are, you know, I didn’t get miam or it’s not appropriate or whatever. But there are exemptions. It’s like four pages of exemptions. And one of those exemptions is you don’t live anywhere near each other, or you don’t live anywhere near mediator. I mean, I think that that should probably be changing because now we do everything online. So doesn’t really matter if you’re not living next to anyone but that is when the exemptions and other exemption is I think there’s one which is risk of harm or risk of Yeah, I think one of them was harm. So there is that as well. If you’re saying well look, it’s dangerous, but The most common one for international is we don’t live anywhere near each other. Whenever you’re mediator, can you please start this? The other aspect is you could self certify and say this is not appropriate at the front genius. I know I don’t have to go and do this. Because X, Y, and Zed, and the court may choose to completely ignore the fact that you haven’t gone from Miami or you haven’t gone to mediation. So for most international cases, you kind of fudge the whole mediation aspect, because it’s a matter of urgency, because you know that mediation isn’t necessarily going to be easy if people are in separate jurisdictions, and there are timing issues, you know, if they’re in France, yeah, it’s fine, you can do it, it’s Neris difference. But if you’re in Singapore, for example, and the other ones in England, having the right timing, so you can have that it’s going to be difficult. So when there’s also the fact that you probably will need an order, if it’s an international case, you’re going to need something relatively concrete, which sets out situation will go, you can reach an agreement and have it recorded in a consent order. So you reach the agreement. You have a semester, draw it up as a consent order and a judge stamp sets and it’s valid, because it’s a judgement. Some people would just rather start the court proceedings anyway and see what happens. Okay, so mediation is great, but I’m finding unfortunately, a lot of the time in my practice, it’s you end up in court.

Tamsin Caine 26:31
Yeah. So mediation is still an option, you can still have non court settlements or consent or to draw not, in most cases, because of the complexities. It’s probably it’s probably not going to be a thing.

Melanie Bataillard-Samuel 26:45
Okay. And you have to have contested jurisdiction cases where somebody is saying, Oh, no, you’re in the wrong jurisdiction. Mine’s the right one. So then you’re in court anyway, you’re, you’re arguing about the divorce, but it has a knock on effect on the finances.

Tamsin Caine 26:59
Wow. It’s very complicated this, isn’t it? And what about, what about children? In terms of international, I don’t know if this is your area of speciality. So maybe asking you about something?

Melanie Bataillard-Samuel 27:15
No, no, it’s half of my practices, children’s stuff. I’ve seen that actually, children has been easier on that front. Because most of the time, it’s the jurisdiction of where the children reside, that makes the decision. Okay. And it’s all because of things like the Hague Convention and stuff like that. So you know, if you’re, if you’re in the EU, when we’re all in the EU, together in Brussels to was very clear that it was a jurisdiction where the job sites I mean, if you were getting a divorce, and your finances in France, but the kids happened to be residing in Paris, then it would be the French courts have have to decide about the children. Now, it’s usually the Hague Convention that steps in, and the old countries, but a lot of the ones I deal with,

Tamsin Caine 28:03
You need to explain Hague Convention.

Melanie Bataillard-Samuel 28:07
So there are some international conventions and regulations that govern certain aspects of family law. So anywhere in the EU, we have Brussels to which was one of the big conventions that dealt with everything to do with family law, amongst other things, but everything to do with family law, if you were in the EU. Another one is Hague Convention, so a convention that was thrown up based in The Hague, and there’s quite a few of them. So you need to make sure you’re looking at the right one. And several countries have signed up to that. And in particular, you need to be looking at the ones that are dealing with the children, because there’s a whole bunch of them, and they deal with all aspects of pay conventions, effectively, lots of things, but the ones that deal with the kids. And some countries are signed up, some are not, but the ones that have signed up basically say we agree to these sorts of things when it comes to children. So it might be protecting them from you know, kidnapping, or abduction, or, you know, which country has right jurisdiction to make decisions on them, and it can talk about child rights and all that. So it’s a whole bunch of stuff, effectively dealing with the children simply really grossly oversimplifying things here, because we

Tamsin Caine 29:16
No, that’s fine. Thing is good for the time being.

Melanie Bataillard-Samuel 29:21
It’s basically a set of rules that those countries sign up to the not all countries sign up to them, and some sign up to certain conventions and other sign up to other Hague Conventions that say different things. So you really need to be careful about which country you’re going to what they’re signed up for. So most EU countries are signed up for the same thing. And we’re all agreed that if the kid lives in that country, then that country is gonna be the one making the decisions. So if your child is based in Italy, then it can make a decision regardless of where the child was born, where they were living beforehand, etc. Some countries, that’s a bit murkier. So for example, the middle This doesn’t necessarily have the same sort of sign up, as we do. And you could argue that although the children are living in that country, you’re asking an English court to be making decisions. So you can start your divorce and your finances in England and tag on to that a decision being made on the children because of the fact they’re in a country where not signed up to things, and the law would not work in the favour of the child base. Okay. So it’s really important. And I think you really think about that for countries like anything in the Middle East. But also, if you’re looking at countries, perhaps further afield, so I’ve had issues where I’ve had clients have kids in Vietnam or Thailand, because that changes also what we can do and how, how to protect the kids. And then you also have weird and wonderful things like the states where each individual state has its own different little way of looking at things. And so yes, have have careful think when you’re looking at which country is best to deal with the children. What’s happened in that country? What are they signed up to? Are we signed up to the same things, most most Western countries, I’d say is the wrong term. But most of the countries I’ve dealt with, are usually signed up for the same thing. So it’s easy to, it’s easier to argue that this child is residing here. This is where it’s gonna be. The other thing to think about is when how long is that child has to be in that country before that country can make a decision. So if you’ve been there for perhaps a month, that might not be enough. Perhaps three months might be enough, perhaps six months, it will would depend on whether they have moved there. They’re settled there. They go into school. It could be when they were on holiday there and they’ve simply been held back or it hasn’t been yet. There’s a whole bunch of facts to look at as well. So it’s not straightforward of Oh, yeah, I went to France, and I kept my kid there. And therefore France is saying, even if we were there for six months, the court might say, Well, no, no England is our jurisdiction.

Tamsin Caine 32:10
It’s so complicated.

Melanie Bataillard-Samuel 32:12
Also. Because if you for example, France, I had a case recently, where a child was based in England, mum went back to France, without father’s approval, what she thought her father’s approval. If you went back to France, and father immediately issued an application in English court saying the child had been abducted children returned under the Hague Convention, and took us six months to get an order in France, for mum to be asked to return the child to England. So despite the fact that Charles has been living a huge amount of time for a very young child, out in another jurisdiction, going to school, you know, living speaking a different language, the jurisdiction to make the decision was still this one.

Tamsin Caine 32:57
Okay. So if we’ve got assets in another country, we live in another country, but we’ve got assets in the UK, if the kids live in another country, all of these complexities, we basically need somebody who knows a little about this stuff to speak to. So a family lawyer who has experience of international work is is going to be pretty essential, because it sounds mega complicated. I’ve got that right.

Melanie Bataillard-Samuel 33:31
Yeah, yeah, I think I think if you’ve got anything like an international aspect, whether you are an international person, whether you have assets in another country, whether you entered into a prenuptial agreements in other country, whether you have kids here and one of us living abroad, whether you are looking at having a maintenance order, made in one country enforced and another weather, all these sorts of things, if you’ve got an order, I often have people who have orders in other countries, whether it comes to the care of the children, separation of finances, child maintenance, or whatever, who then ended up living here, probably to speak someone who has some understanding of international law. International law is not technically a thing for family, oh, we don’t have like an international law topic. But someone who’s used to dealing with the International complexities, it’s only so they can say, like this up, this is a problem or you need to be speaking to someone else about this. You don’t want us to be treating it like it’s a normal everyday thing because it might be a little bit the same in England, but actually you have to think about those other complexities in that jurisdiction. And what’s often advice to my clients is to have a chat with a lawyer in that country as well. They definitely have a chat and both you know, if you’ve got two countries have a chat someone both countries so you understand what’s going on in both and they’ll eat Strike up their own worries. And then you can always have them speak to each other if you prefer, but at least you understand what what’s going on.

Tamsin Caine 35:08
Okay, I feel like my head is utterly mashed now. We believe, pretty much at the end of our time together, that’s absolutely flown I think probably because, because there were so complicated. But I have a feeling that some of our clients and some of the people listening may be interested in having a chat with you if they’ve got any of these complexities going on. So how can they get ahold of you?

Melanie Bataillard-Samuel 35:39
Email so Melanie at MBsfamilylaw.com have put your handle and underscore bethere ba ta wo ARD those are the two obvious ones fantastic ones anyways, contact me through Instagram because it’s just a post purchase of me eating stuff. So it’s just not going to work really.

Tamsin Caine 36:00
It posts lovely pictures in beautiful places these days.

Melanie Bataillard-Samuel 36:05
There wasn’t there was a few photos of beaches and swimming pools recently

Tamsin Caine 36:09
big yachts and things

Melanie Bataillard-Samuel 36:12
You have made me feel better

Tamsin Caine 36:14
at it, we’ll put the links in the in the show notes anyway, just remains for me to say thank you so much for joining us today that was really useful even though my brain now feels right.

Unknown Speaker 36:28
And that was great. I’m so used to doing the interviewing and podcast. I was really nervous about being the interviewee and I absolutely loved it. So thank you.

Tamsin Caine 36:36
Excellent, jolly good! Thank you for joining me and I hope you all enjoyed it. See you soon. I hope you enjoyed the episode of the Smart Divorce podcast. If you would like to get in touch please have a look in the show notes for our details or go onto the website www.smartdivorce.co.uk. Also if you are listening on Apple podcasts or on Spotify and you wouldn’t mind leaving us a lovely five star review. That would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation divorce and dissolving a civil partnership. Also, if you would like some further support, we do have Facebook group now. It’s called ‘Separation divorce and dissolution UK.’ Please do go on to Facebook, search up the group and we’d be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care!

Transcribed by https://otter.ai

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