Know before you go – the legal stuff

transcription

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Welcome aboard the Expatability Chat podcast, helping expat parents navigate the challenges of moving and living overseas. With Carole Hallett Mobbs, Expat Life Mentor and Consultant and founder of ExpatChild.com.

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Hi, welcome back to Expatability Chat, and in this episode, I'm going to go through some of the legal aspects of moving and living overseas. And these are points that you really need to know about before you get too far into your planning for your move overseas.

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Quite a few of the points I'll share with you today will be things that you've probably never even considered. Or maybe you have, in which case well done, you're doing good research here! Some of the information in this episode could be quite heavy and quite serious and might be a bit scary. You may want to go and grab a coffee now and maybe a pen to make notes in case any of this will relate to you.

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So why am I going to be telling you scary stuff? Well, to help you prepare before you make your move so you're not horribly surprised later on. And to make you aware of certain legalities and laws in different countries around the world. Am I trying to spoil your adventure? No, of course I'm not. But many people go into expat life without fully being aware of various aspects.

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I need to tell you these because many people don't realise some of the implications involved in moving overseas with a family. There are certain laws and legalities about moving and living abroad that can, or do, affect most people.

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So here's a little addition I've just recorded to include here. Yes, I did record this episode a couple of weeks before I uploaded it. And rather than re-record the whole thing again, I'm just going to pop this snippet of information here as something I refer to later is now out of date. And this is really important news for expats in the United Arab Emirates.

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I mention later on in this episode that certain laws and rules exist in Dubai and the UAE. Anyway, big news on this. On the 7th of November, the UAE government issued some significant changes in UAE family law. And these are quite major changes too, and they're going to affect many thousands of expats in the UAE. At the time of recording this little addition, those new laws have not yet been published by the government, but are suggestions of the new changes. So do double check any of this if it may affect you.

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It's easier for me to quote the information that's relevant to you from the newspaper announcement of the 7th of November. Please do remember I'm not a lawyer, so I'm just sharing the information I have to hand here.

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"Amendments to existing laws and the introduction of new laws seek to regulate crucial personal and civil laws with provisions allowing non-Emiratis to have their personal affairs dealt with according to the law of their home country. The changes mean that the laws of a person's country of origin can be used for divorces and inheritance, meaning that Islamic law or Sharia, would be rarely used when it comes to family law cases involving expatriates. For the first time, the law will allow for the legal cohabitation of unmarried couples. Until now, it has been illegal for an unmarried couple or even unrelated flatmates to share a home in the Emirates."

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So, as I say, huge news and a big relief to so many expats and potential expats in the UAE. And this just goes to show how important it is to do your own research on the country you're moving to and to keep updated on your research, because something as important as the law can change without advance notice. Many people were very surprised by this announcement.

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Now back to my already recorded episode, and now, you know, to probably ignore anything I say about laws in the UAE!

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Chances are most of the information here will not apply to you now or ever, but none of us can foretell the future and who knows what might happen. It's better to be prepared.

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So topics that I'm going to cover in this little legal checklist today include: your relationship, whether you're married, cohabiting, civil partnership or gay. Your visa status. What might happen with separation or divorce in the future. Gender bias in certain countries. Some paperwork tips. Some legal rights. And moving overseas with children.

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So let's start off with your relationship. Couples who are unmarried or in same sex relationships may want to check how their relationship will be perceived in the new country. Will there be problems if, for example, their relationship is not formally recognised? In some countries, cohabitation isn't recognised. In quite a few countries same sex marriage or civil partnerships are not recognised and they may actually be illegal in others. For example, it's against the law for heterosexuals to cohabit in most nations in the Middle East. Some countries, those who are wholly or even majorly associated with certain religious groups, tend to be less accepting of homosexuality than those who are more diverse.

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In general, wealthier countries tend to be more accepting of homosexuality. But this isn't an accurate guide by any means. Singapore, for example, criminalises same sex relationships. Some other nations who are, shall we say, less than tolerant, include much of Africa, most of the Caribbean, particularly Jamaica, and most of the Middle East. And in some countries, same sex relationships are punishable by death. The only countries in the Middle East that don't outlaw homosexuality are Bahrain, Israel and Jordan. And Asia has a mixed record, too. So do make sure to do your research first. The world really hasn't caught up to the 21st century. It's shocking, it really is.

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Some countries may have different legal rights on the breakdown of the relationship than those available in the country you are leaving. So it may be sensible to consider the legal consequences of future relationship breakdowns, however happy you are right now. And then to take steps to update or create a nuptial agreement to ensure that, if necessary, your affairs are handled in the manner you hope. I'll talk a little bit more about that in a moment.

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Next, I want to talk about your visa status. And you should ensure that you get advice regarding your immigration status in your chosen country, and whether your visa status could be held independently of your spouse on separation or divorce. If your immigration status is dependent on another person, it is advisable to be aware of the consequences should something happen to them. If they were to unexpectedly return home or if your relationship breaks down, this means can you stay in your destination country independently from your spouse or partner? Is your right to stay entirely dependent on their visa status. If they lose their job, for example, do you have to leave because your permission to stay is linked to their employer? This is incredibly common. If you do split up, do you have to leave the country? Basically, in many cases, the person named on the visa is in control of your life.

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So do make sure you know what's what before you agree to move and live overseas. If the worst happens and the visa holder becomes seriously ill or even dies, the last thing you need is to have to suddenly and unexpectedly leave the country in a couple of weeks. And yes, in some countries you do have to leave almost immediately - within weeks or even days. And that's the last thing you want to have to deal with in such tragic circumstances.

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Now bank accounts... That may not be top of your list of priorities, but consider this: check if you can open your own bank account in your own name in your destination country. This could also come under gender bias, by the way. Opening a bank account abroad can be a complicated process for a non-national or temporary resident. Some countries insist on your husband giving you permission to open an account of your own. Dependents of the visa holder cannot open a bank account in Dubai, for example, without formal permission of the head of the household. Gosh, I hate that phrase. In other words, again, the visa holder is in control. The visa holder has to sponsor his own wife or child so that they can open their own bank accounts. As well as giving you access to funds in an emergency, it may also be an essential part of an immigration visa application or rental agreement that you have your own personal bank account.

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So it does really depend on the country you're moving to and the situation of your visa and your relationship. In any case, try to keep a sum of money aside for emergencies.

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Now, on to separation and divorce: something that we really obviously don't want to happen and can be made a lot more tricky if you're in a country away from your home.

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It's worth looking at this before you go, even if your relationship is full of unicorns and rainbows and absolutely brilliantly happy. No, I don't want to rock the boat, but things will become clearer in a moment when I talk about what might happen in the case of a relationship breakdown. Check what your legal rights would be in your destination country if you were to separate or divorce while one or both of you live there. Now, this might seem negative, but certainly if your relationship is already a bit shaky, this is highly advisable. I don't recommend moving overseas to fix a shaky relationship by any means. It's hard enough on the most solid relationships. If you're thinking of moving overseas to help solve a problem, either don't! Or do some heavy duty research before you say yes. This would involve a confidential meeting with a specialist lawyer and may prove invaluable in understanding your financial entitlement and that of your children should you separate or divorce after you've moved overseas.

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Now gender bias. Check whether there's a gender bias in your destination country. And yes, I know there's a gender bias in most of the world, but some of it's quite well hidden. But in some countries it is much more pronounced and is actual law in others. For example, in Saudi Arabia, females are unable to work without a male sponsor or husband. Even in Dubai, Sharia law can be invoked by an ex-husband to gain custody of a child in the event of divorce, even if both parties are non-Muslim and the marriage was ordained overseas. Can I just let that sink in for a moment? In Dubai, one of the most relaxed Middle Eastern countries and one where many, many expats move to, Sharia law can be used to gain custody of your child regardless of whether you are Muslim or you were married before you moved there.

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I'm going to talk a bit more about children and divorce and separation and stuff in a moment. I am not ignoring that.

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We're just going to move on to the next topic, which is paperwork. So from very intense to something a little lighter. Pack and carry with you all paperwork regarding family matters. So any family matter paperwork; marriage certificates, divorce decrees, any final family court orders, any parental agreements and any letters of consent when you travel with your child as some border agencies require to see this. If you have all of this with you all of the time, it will make your passage through customs far easier and far smoother. And in some countries, the delay can be very long indeed whilst family travel documents are checked and verified.

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And onto legal rights. Check what legal rights you would be giving up by moving. Take care particularly if you have entered into what you might consider to be a prenuptial agreement, as this may become ineffective if you seek to rely on it in another country.

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And now on to the children. This is a tough one, but a serious and eyes wide open discussion is required before you move. So you need to know what legal aspects of moving abroad with children can mean for you. If you have children or are planning to have a child in your destination country, discuss with your partner, the circumstances and terms in which you may return to your home country with the child. And then this is really important. Record that agreement with a lawyer; make it official.

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Now, whilst this agreement might not be binding, it will stand you in good stead in future to know the other's thoughts and intention on the matter before moving. It can be very helpful evidence if this is later challenged.

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Now, anything to do with the future of your relationship is always a really tough conversation to have. But it is incredibly important. And no, I don't expect you to end up getting divorced or any separation or acrimonious awfulness, but you don't know what might happen in the future.

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So what was that about the kids? Now I've touched on this in a previous episode, the episode entitled "Before You Say Yes to a Move Abroad", I want to now push it a bit further so that you fully understand what the deal is here. Families that include children from former relationships, in particular, have even more considerations because you need permission to move overseas. So anyway, let me clear up the whole 'what about the kids' conversation? Now, stand by. What I'm about to say next is something you really need to know about before you move abroad.

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If you end up separating from your partner, or if one of you wants to stay and the other wants to go home, you might never be allowed to return home with your children. I'm sorry to sound dramatic, but that is the truth of it. There are many fractured and devastated families around the world. So please listen to this again. If you separate from your partner or if one of you wants to stay in that country and the other one wants to go home, you may never be allowed to return home with your children.

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How can this possibly happen? Now, the chances are this will never, ever happen to you. But you need to know that it can and it does happen. I've personally known one family definitely affected by this and possibly another, although it hasn't actually come to light yet. And I have received emails and messages from others who are in this situation. Countless ones over the years. And sadly, I cannot assist because I'm not a lawyer, but I can direct you to organisations who are specialised in this. It's all down to something called habitual residence and also The Hague Convention.

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The habitual residence of your child shifts to the new country, in many cases, as soon as you get off the plane. Now, I've been talking to some family lawyers about this, and it is a very tricky aspect to clarify. But I'm going to do my best with the help of the wonderful Wikipedia, because it usually has a way of concisely phrasing things. So Wikipedia states that 'a person can only have one habitual residence, and that is the place where the individual ordinarily resides and routinely returns to after visiting other places. It is the place he or she would consider to be home and is established as a matter of geography over a reasonably significant period of time.'

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So because you have moved to another country with the intention of settling there, your intention - and this is the key point - your intention is to move your habitual residence to the new country. Habitual residence is often confused with permanent residence. Habitual residence does not need any documents to provide proof. You are a habitual resident of a country If your day to day life happens there and if you intend to stay there long term. You can think of it as a place that you are connected with the most and where your day to day activities happen. This means you work there, your children go to school there, you own or rent property or are settled there. You're not there on holiday. Holidays are not habitual residence because you will be returning somewhere else after your holiday.

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So say you're moving from England where you have lived all of your life. England was your habitual residence. But now you're moving to Australia. Because your intention is to move and live in another country, you're not going on holiday for a few months, you will cease to be habitually resident in England from the moment you leave. It's down to intention. However, once you arrive in Australia, you don't automatically become habitually resident there on the same day. And this is where it gets all fuzzy. The amount of time you spend in your new country isn't set in stone, as far as I can tell. But basically you are intending to move to a different country to live there and that becomes your habitual residence.

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Then if you split up with your partner, your husband, your wife, one of you wants to return home, the child's habitual residence is in the new country. And with The Hague Convention, that means that the other partner can argue that your children are not allowed to leave their habitual residence. So as an expat or immigrant, your habitual residence will be your new home country.

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International law states 'when you arrive in your new home country with the intention of staying the habitual residence of your child shifts to the new country'. So unless the other parent gives permission for you to take the children back to your original home country, you need to apply to the local court to override this. It does not matter if all the family are of the same nationality or how long you've been abroad. It doesn't matter if you are fleeing domestic violence and poverty. It doesn't even matter if the other parent is in prison and you are the sole carer. By law, you must stay put and wait for the local court to decide if you can go home with the children.

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Now, do you understand why you need to know about this? And why it's important before the move and while everything is happy to get an agreement in writing, signed by a lawyer, or witnessed by a lawyer, before you go. It won't necessarily work, but it will provide evidence for you.

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I've seen some sad situations. One of the most difficult is where a dependent spouse is made to leave a country because their partner has control over their immigration status. Remember what I said about the visa holder being in control of your life? Even worse is when the parent who has to leave cannot take their child with them unless the other parent has specifically consented to the child's removal from the country in which they are resident.

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So let me give you a scenario here. Let me play devil's advocate for a moment. Your partner is abusive. They haven't always been so. But this move has put a lot of stress on you both. Their job has a different environment from what you're both used to. They work late. They travel more than ever before. There's lots of important after work meetings in bars and restaurants. They're barely home to help you with the tricky day to day life in a new country. And of course, you're looking after the kids 24/7, but they have to make a good impression at work so you have to do this. They become involved with the in crowd, perhaps a group of people a little younger than them. Their personality shifts. But you have to suck it up because you've got the kids to look after and do the school runs and make home happy and joyful, while supporting them in their new career. You pull them up on their behaviour. That's not what you signed up for. You've had enough. They get angry, maybe aggressive, perhaps violent.

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The relationship's over. Long story short, you decide to move back home where you've got the support, you've got a life, you've got a career, and you've got safety. But they turn nasty. You're not going to take the kids away from them, even if they're never at home. They need the control and power. They're not going to lose this battle. So they refuse you permission to travel home with the children. So now what? If you go home anyway - if you go against this permission and they get even more nasty, you can then be charged with child abduction of your own children. And steps could be taken for the children to be returned to what was their habitual residence. And no, moving back to your home country doesn't swap their habitual residence.

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It is a really complicated and difficult law and why I need you to be fully aware of what might happen. There's a phrase called Stuck Children. What does it mean? Basically, if you end up separating from your partner, you cannot go home with your children if they turn nasty. And if you just take your children home - many parents do just take their children home - they think that as the primary or sole carer, they can unilaterally decide to leave a new foreign country and go back home. What can happen then is a nasty shock. Because the other parent can invoke The Hague Convention on the Civil Aspects of International Parental child Abduction.

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Basically, this means you could stand accused of child abduction. You'd find yourself in a high court with very limited defences and would have to return your children to the country where their other parent is; the country of their new habitual residence. And some parents have even gone to prison for child abduction.

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So what can you do to protect yourself? First of all, make a plan. Before making the move overseas, discuss all of the possible what if scenarios. Here are a few to get you started. What if one of us doesn't like living in the new country but the other one does? What if one of us or the kids gets ill and wants to go home? What if one of our parents gets ill and one of us wants to go home and be with them? What if one of us has an affair and the other one wants to go home? What if we split up? And this is the key one, what will be in the children's best interests?

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Now lawyers and judges and courts always take into account the child's best interest. So that is a really important discussion to have. And the key question is, will we both return home? Or will one of us be able to return home with the children with your permission? And in addition to all this, how long is that agreement going to be valid for? Because as I mentioned before, it's quite easy to assume that what you agreed many years ago still stands for each consecutive move and each stage of your life.

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People don't discuss how their minds may change. Their outlook may change. So it's important that you do regularly revisit these questions and get updated information from each other. Just keep talking. It's communication.

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Two years is a general good amount of time to see if you like the new country before committing. If there is an intention to return home in the future, then you need to record this somewhere in writing and include the intended timing and circumstances for any return, if known. This can avoid arguments with the other parent at a later date and may help if there is a dispute about where the children should live in the future.

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So for all these agreements you need to make an appointment with an international family lawyer in order to formally record the decisions before you leave. You need to expect the best but plan for the worst. Protect yourself by discussing it all first and then talk to solicitors.

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Now I want to talk about travelling with children, not moving overseas with children, but the times that you have to travel with the kids and you're the only parent travelling with them. And sometimes if you have a different name from your children. It's advisable to obtain a letter of consent to carry with you when you will travel. So if a parent is planning to take the children abroad without the other parent, but with their consent, for example, on holidays and visits home, that's when you need the letter of consent. Many airlines require this for children travelling with one parent. And as I say, particularly if the parent and child have different surnames. And in some countries, often before even being allowed to board a flight, the parent and the child may be asked questions at border control.

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I vividly remember travelling from Tokyo to London with my five year old daughter many years ago. We made this trip shortly after Madeleine McCann was abducted in Portugal. My daughter bore a vague passing resemblance to Madeleine, and so at five years old, she was asked many, many questions about who she was and whether I was her mum or not. While the officers peered into her eye looking for the special identifying mark Madeleine's eyes bore. Daughter was very confused.

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Many countries have very strict requirements. South Africa is such a destination. A parent travelling with a child to South Africa will not even be allowed on the plane at the departure country without the child's full unabridged birth certificate, as well as a notarised letter of consent from the other parent. Basically, the consent letter should contain full details of the parent providing their permission the child's name, date of birth and details of the proposed trip. It's recommended that the letter also includes the full details of the parent with whom the child is travelling. There isn't a standard template. It may also be useful for the parent to have evidence of their relationship with the child by way of a birth certificate or adoption certificate, and maybe even evidence of a marriage or divorce.

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Again, just carry all your paperwork with you. So, as I say, there isn't a special template. I can't give you a template. They usually have to be officially notarised, especially in South Africa, where we had to both go to the police station to get a stamp and a signature is always better to err on the side of caution. Carry all the paperwork then if you're not asked for it, it's no big deal. If you don't carry all the paperwork, that'll be the time that you get stopped and questioned. You just know that that's what will happen.

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So all this about the kids, and travelling with kids, and stuck kids and habitual residence, it's rare, but it's not so rare that you should ignore it. Just be prepared.

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But if you have any real genuine fears on this, can I just suggest that perhaps it's better not to move abroad in the first place?

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I'll put more links to more information about this topic, the Hague Convention, the legalities regarding travelling and how to avoid potential child abduction. I'll put them in the show notes.

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I sincerely apologise if any of this has worried you. It certainly wasn't my intention, but I am a firm believer in being properly prepared as you should know, by now. I've had far too many awful and disastrous stories. So this isn't something that I want to hide from you. And nobody can predict the future. Life can change in a moment. But knowledge is power. Be prepared. If you don't know about it, how can you be prepared? It's better to know this stuff before you go. The more you can do in advance to ensure that your move goes smoothly, the better.

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It is essential that you fully understand the potential impact of the relocation on your family life now and in the future. So you do need to do your own research. And I sincerely hope that you never, ever have to use any of it.

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Please take care and I'll talk to you again soon.

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Thank you for listening to the Expatability Chat podcast, please check out ExpatChild.com for more free information and resources and follow me on your favourite social media. Don't forget to join me next week for another episode. Until then, bye bye.