It is not uncommon for French families living in England to believe that when they separate or divorce, French law will apply to divorce or children issues. Of course, a divorcing couple may elect to divorce in France and to allow the French courts to decide by consent what will happen to their children. However what most French parents fail to realise is that their child will have acquired habitual residence in England and Wales after having lived there for a period of time (usually three to six months). Once habitual residence has been acquired, the English courts become competent to make all decisions in regards to that child. It is therefore important for French parents to consider the following when separating in England and Wales:
What is Parental Responsibility and why is it important for French families in England? If the child was born before December 2003 it is possible that the father may not have parental responsibility if the parties were not married at the time. He will require the agreement of the mother or an order of the court to obtain parental responsibility. If a child is born after 2003, as long as the father is on the birth certificate he will have parental responsibility regardless whether the parents were married. You can read our detailed guide to parental responsibility here.
Can We Return to Live in France after our Divorce?
If you are a French family living in England, you may wish to return to live in France with your children after divorce or separation. To do this, you will need the agreement of the other parent. If they do not agree to the child returning to France you will have no choice but to make an application to the court for permission to relocate.
What about Holidays?
If you are the only parent with parental responsibility for your child you can take the child on holiday without the permission of the other parent. If you both have parental responsibility then each of you will have to provide permission to the other. The parent with the main care of the child can leave the country for up to a month in total each year without the permission. The other parent can do the same for up to two weeks. In any event both parents will need to notify the other parent of their plans. If the other parent is not happy they can apply to the court to prevent this from happening.
Education / Religion / Healthcare
All important decisions being made for the child (whether it be in regards to their schooling, religious education, health, etc) should be made jointly by the parents where they both have parental responsibility.
How to Avoid Problems
If you do not follow the guidance set out above the other parent may be able to apply to the English courts for an order, even if the child is at that time in France. An English order will be recognised and respected by the French courts. It is therefore advisable to discuss this with the other parent and obtained their permission /agreement before making any decisions in regards to the child.
Originally published May 30, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at firstname.lastname@example.org.