I am looking for advice on a complicated matter. It’s a bit convoluted so bear with me.
I have a UK house which I've had for 17 years. I have been married for 7 years - so I had this 10 years prior, and the wife has not contributed in any way to this. I am British by birth but moved here and gained citizenship 12 years ago. Our marriage was under Aus law. This was my original house in the UK and the only asset I have outside of Aus.
I've asked my wife to enter into a BFA to state that she will not try to make any claim to the foreign asset in the event we separate, which she agreed to.
I know how BFAs work, and we've both had independent legal advice for it to be binding. However, the lawyers disagree on whether the BFA will protect the asset. My wife's lawyer is saying that any legal document here in Aus does not have jurisdiction in the UK, but my lawyers state that it does – kind of. Her lawyer said the document needs to be done in the UK to protect the asset there as that is where the asset is.
When I questioned my lawyer for details, he said that it is (kind of) true what her lawyer said, but since our marriage is here in Aus and we have submitted to Aus jurisdiction it is binding here, and best to have it in this jurisdiction as this is where we live. It is true, that it is not protected under UK law – as in she could put a claim on it in a UK court - but I don’t care about that, I only care that it is protected here. My reasoning (which my lawyer agrees with) is that if we separated, then this will be handled under the Aus Family Act here, and even though the courts can not enforce me to sell a UK asset, they can just deduct half of the monetary value of it from the settlement if there is no BFA to cover this. On the other hand, if the BFA (or equivalent) is in the UK, I can protect it under UK law, but then the Aus courts here may not honour it.
If I must pick one place where to have the BFA I’d pick here as this where we reside. Even if it is possible for her to have some claim in the UK, it’s going to be a lot more hassle for her having to deal with UK courts whilst living here; and I’d hope that they’d just tell her to go away anyway and tell her to take it to the Aus jurisdiction as we live here and were married here; I don’t understand why a foreign jurisdiction would even entertain the thought of a foreigner trying to make claims on an asset where they have no connection to – I’d have thought a common sense approach would be for the foreign government to tell you to deal with those matters under the jurisdiction where you were married and reside. This seems like common sense to me, but my wife’s lawyer is making me doubt myself.
I know the obvious answer is get two of them, one in each country. But I don’t want to as it’s going to be a lot of work, and a lot more money too.
Looking for some advice on this. If you can’t give a definitive answer, no worries, please still advise on whether my reasoning seems sound based on other family law matters you might have seen/worked on.
NOTE: I am also aware that UK and Aus DO honour agreements, so it is likely that if she tried to make a claim in the UK anyway, I could show the BFA from here and that would be enough.
Thanks,
I have a UK house which I've had for 17 years. I have been married for 7 years - so I had this 10 years prior, and the wife has not contributed in any way to this. I am British by birth but moved here and gained citizenship 12 years ago. Our marriage was under Aus law. This was my original house in the UK and the only asset I have outside of Aus.
I've asked my wife to enter into a BFA to state that she will not try to make any claim to the foreign asset in the event we separate, which she agreed to.
I know how BFAs work, and we've both had independent legal advice for it to be binding. However, the lawyers disagree on whether the BFA will protect the asset. My wife's lawyer is saying that any legal document here in Aus does not have jurisdiction in the UK, but my lawyers state that it does – kind of. Her lawyer said the document needs to be done in the UK to protect the asset there as that is where the asset is.
When I questioned my lawyer for details, he said that it is (kind of) true what her lawyer said, but since our marriage is here in Aus and we have submitted to Aus jurisdiction it is binding here, and best to have it in this jurisdiction as this is where we live. It is true, that it is not protected under UK law – as in she could put a claim on it in a UK court - but I don’t care about that, I only care that it is protected here. My reasoning (which my lawyer agrees with) is that if we separated, then this will be handled under the Aus Family Act here, and even though the courts can not enforce me to sell a UK asset, they can just deduct half of the monetary value of it from the settlement if there is no BFA to cover this. On the other hand, if the BFA (or equivalent) is in the UK, I can protect it under UK law, but then the Aus courts here may not honour it.
If I must pick one place where to have the BFA I’d pick here as this where we reside. Even if it is possible for her to have some claim in the UK, it’s going to be a lot more hassle for her having to deal with UK courts whilst living here; and I’d hope that they’d just tell her to go away anyway and tell her to take it to the Aus jurisdiction as we live here and were married here; I don’t understand why a foreign jurisdiction would even entertain the thought of a foreigner trying to make claims on an asset where they have no connection to – I’d have thought a common sense approach would be for the foreign government to tell you to deal with those matters under the jurisdiction where you were married and reside. This seems like common sense to me, but my wife’s lawyer is making me doubt myself.
I know the obvious answer is get two of them, one in each country. But I don’t want to as it’s going to be a lot of work, and a lot more money too.
Looking for some advice on this. If you can’t give a definitive answer, no worries, please still advise on whether my reasoning seems sound based on other family law matters you might have seen/worked on.
NOTE: I am also aware that UK and Aus DO honour agreements, so it is likely that if she tried to make a claim in the UK anyway, I could show the BFA from here and that would be enough.
Thanks,
