The Rain in Spain Falls Mainly on the Plain

DSC01152_2 (2)_2Marie Saward met 66-year-old British real estate tycoon, Paul Saward, on the romantic island of Majorca. After marrying in 2009, they resided in the Mediterranean port city of Alicante, Spain. But two years after their dream marriage, the romance was over with Mr. Saward vowing that his wife wouldn’t get a penny from him.

Mrs. Saward returned to England where she applied for a divorce arguing that her estranged husband’s legal residence was in the United Kingdom and thus she was entitled to have her case heard in England.

Apparently the first judge who heard her case agreed and granted her the divorce she sought, but it was a fleeting victory. Mr. Saward applied to set aside the divorce decree on the basis that the British court had no jurisdiction over him because his permanent residence was in Spain.

Mrs. Saward valiantly argued that her husband maintained personal ties and had significant real estate holdings in his home city of Southampton England. She also claimed that her ex-husband often made disparaging comments about Spain.

But to Mr. Saward’s delight, the second judge overturned the divorce decree finding that his “permanent and fixed centre of interests” were in Spain. She said:

“Although the husband may well have expressed a dislike of Spain in forceful terms on many occasions, and whilst he may have contemplated a return to the UK, he had made no concrete plans to do so.”

Judge Lesley Newton referred to a letter written by Mr. Saward in 2011 that read:

“I have no plans of ever moving back here, I could not put up with the weather … only two days left and I will be home.”

Mrs. Saward appealed the new order but was unsuccessful. Why was she so determined to have the English court preside over her divorce? Firstly, because British courts are well-known for making generous financial awards to women and secondly, the law in Spain only provides for a division of property between legal or common law spouses if the property is held jointly by the couple. Property in one party’s name is not sharable.

All the assets owned by Mr. Saward were in his name alone, leaving his wife with nothing, just as he threatened when the marriage broke down.

What about the law in Canada? Under the Divorce Act if one spouse ordinarily resides in Canada, the courts will take jurisdiction to grant a divorce and deal with property and support claims as well.

Mrs. Saward is left with nothing, but frankly, how much could she really expect after such a brief marriage. Not much.

Lawdiva aka Georgialee Lang

Lawyer Liable for $950,000 Judgment in Parental Abduction Case

A lawyer who mistakenly released a child’s passport to the child’s mother, contrary to a court order, has been ordered to pay $950,000 to the father of a child abducted by her client from New Jersy to Spain.

The parents of Victoria Innes, Peter Innes and Marie Carrascosa, were married in Spain in 1999 but resided in the United States. Their daughter, Victoria, was born in 2000. Their marriage ended in 2004. Victoria had both US and Spanish citizenship.

After an acrimonious dispute Victoria’s parents signed an agreement in 2004 that prohibited both parties from international travel with Victoria without the consent of the other parent. The agreement also provided that Victoria’s passport would be held in trust by Ms. Carrascosa’s lawyer.

When Ms. Carrascosa changed lawyers her file was delivered to the new lawyer, however, her new lawyer, Madeline Marzano-Lesnevich, was not aware that Victoria’s passport was to held by her and not released to her client without Mr. Innes’ consent or a court order.

Ms. Carrascosa, a lawyer in Spain, took advantage of the situation, obtained the passport from her lawyer and promptly fled to Spain where she and her daughter stayed with Victoria’s maternal grandmother. Later Ms. Carrascosa returned to New Jersey but refused to return Victoria, alleging the Spanish court had jurisdiction and would not let Victoria leave the country until she was 18-years-old.

In the meantime, Victoria’s father had obtained an American order for custody of Victoria and attempted to enforce it, to no avail. Ms. Carrascosa was charged with contempt of court and interfering with custody and was sentenced to fourteen years in prison, where she has been languishing since 2006, determined not to comply with American justice.

Despite all efforts and the involvement of Spanish/ American judicial mediators at the Hague Court in Holland, Victoria remains in Spain.

Parental abduction is the worst form of child abuse. While the Hackensack court undoubtedly meted out strict punishment, so far it has not motivated Victoria’s mother to relinquish her hold on Victoria.

Lawdiva aka Georgialee Lang