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Swiss divorce bettered

In a protracted divorce case and separate care proceedings, the Miles & Partners team secured a favourable financial settlement for our client in the face of frustrating delays and conflicting claims by his former wife.

In 2010, our lawyers were instructed to represent the client as the Respondent in divorce proceedings initiated by his wife. At the time the couple lived in England with their young daughter.

Divorce proceedings were put on hold when the family relocated to Switzerland in April 2011 following our client’s job transfer and the couple attempted reconciliation.

At the end of March 2012, his wife returned to England and applied for a Decree Absolute and sought a without notice Residence Order and Specific Issue Order, claiming that our client had held her and the child “hostage” in Switzerland and not permitted them to come back to the UK.

We objected to the Children Act proceedings on the basis the English Court did not have jurisdiction to deal with a child who had been living in Switzerland for almost a year with a family who had moved together to settle in Switzerland, which had therefore become their habitual residence.

The Court transferred the matter to the High Court in light of the jurisdictional dispute. In September 2012, the High Court dismissed the wife’s applications and awarded our client his full costs. The wife’s subsequent appeal was refused.

In August 2012, our client had issued his application for a financial order. There were three hearings in which his wife did not initially engage initially. The parties eventually exchanged financial information but the wife did not respond to requests for the further information required of her.

In June 2013, his wife issued an application to adjourn the final hearing set for October 2013, claiming she had been unable to file a statement due to some missing information. We immediately sent her this information, leaving her more than a month to prepare her statement.

This statement did not arrive and she persisted with her application to adjourn, which we opposed because the escalating costs were becoming disproportionate to the equity in the family home. With just three weeks to the final hearing, our client’s wife instructed a solicitor and her application to adjourn was listed for two days before the final hearing.

While this was taking place in the UK, children and finance proceedings were taking place in Switzerland. In Spring 2012, our client had applied for the Swiss equivalent of a Residence Order and Prohibited Steps Order (to prevent the child from being removed from the country).

Under the Lugano Convention, the Swiss Courts had the power to grant the wife interim temporary financial relief if there were no other funds available to her and under the auspices of this, the Swiss Courts made temporary maintenance orders for the wife alongside the temporary children orders for the client.

Back in England, at the adjournment hearing, the wife’s submissions were entirely different to those set out in her written application. She referred to the contemporaneous Swiss proceedings saying that was the jurisdiction that should take precedence, reversing her position in March 2012 when she preferred English jurisdiction in her application for Children Act Orders.

Ultimately, the English Court felt obliged to adjourn the hearing to permit the Swiss case to conclude, particularly as there was a further interim hearing listed for only a few weeks later in Switzerland.

The Swiss case did not conclude, although a measure of agreement was reached on an interim basis, and the adjourned final hearing went ahead in England in February 2014. Only in the 2-3 days before this hearing did the wife finally engage and enter into discussions as to settlement.

Her offers in Switzerland had all involved her keeping the former matrimonial home and much higher maintenance. On finally settling the matter in England our client pays less maintenance under the English Order now has his rightful share of the former matrimonial home.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

Michelle Uppal, Miles & Partners Solicitors, London

Michelle Uppal

Partner
Mediator and Solicitor | Head of the matrimonial department

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