www.iva.co.uk

Hi I am a British Citizen who has emigrated to Australia. I still own my house with no equity in the uk but have debts I can no longer afford to service ( with exchange rate and cost of living in Australia).Can I do an IVA from here in Australia?Or declare bankruptcy? your advice would be appreciated, thanks

Hi Rodney, welcome to the forum, I'm sure an expert will be able to answer this question for you shortly.

The legislation in Australia is not hugely different to that in the UK. There is a formal arrangement similar to an IVA which could be proposed in Australia which may be the best option given that it would give you protection under Australian law. Bankruptcy is similar in Australia to here although I believe that it is still for three years.

I would contact Insolvency and Trustee Services Australia who could point you in the right direction.

Hi
Yes you can enter into an IVA, if suitable, if you have moved to Australia, however Michaels advice may be a better option.
Regards

Not sure that an Australian IVA will protect you from UK Creditors. As you own a property in the UK you will be able to do a UK IVA - and make payments to your Supervisor from Australia. My firm already has a number of these from clients who have emigrated to Australia, Denmark and Canada. Good luck.

You can only do an IVA in the UK if you have lived here at any time during the last three years.

If you still have a place of residence in England or Wales you can still do an IVA regardless of whether or not you actually live in the country or have done so in the last three years.

How does that fit with residency criteria Elizabeth?

Hi Melanie

section 265.—(1) A bankruptcy petition shall not be presented to the court under section 264(1)(a) or (b) unless the debtor
(a) is domiciled in England and Wales,
(b) is personally present in England and Wales on the day on which the petition is presented, or
(c) at any time in the period of 3 years ending with that day—
(i) has been ordinarily resident, or has had a place of residence, in England and Wales, or
(ii) has carried on business in England and Wales.

Well aware of the provisions of that section of the act thanks. My point is how can you argue that the debtor is resident in the UK when you are only allowed to claim one domicile - ie that in which you are currently living.

Are you suggesting that the debtor claims that he is still resident in the UK property when making the application, at the address of the property which he owns? And if so, how would he be able to demonstrate residency, being mindful of the tests of this which are usually applied by the OR?

Would be interested to know if you have dealt with this practically. I get a lot of queries from ex-pats in this regard, and if there is a way around this I would be keen to know if petitions have been actually accepted on this basis.

It is in the wording has been ordinarily resident OR had a place of residence. Therefore my interpretation would be that by simply having a home in England or Wales you have a place of residence in this jurisdiction.

I have not dealt with a case such as this since the requirement to have an interim order was removed and would be tempted only to put forward proposals for this sort of case with an Interim Order now.

The application should be made to the High Court, which has jurisdiction for those who are not currently resident in England and Wales. You would need to state the current address of the individual and the reasons why the interim order should be made - i.e. he or she has a place of residence in England or Wales.

Also always quote your section and rule numbers in the application - it helps the registrar understand your reasonings. Once I had cottoned onto this (with the help of a few hints from a certain High Court registrar)it was a relatively simple process.

I will check this out with a lawyer, because I am not sure that simply owning a property in one jurisdiction entitles someone to present a petition in that country.

Liz is bang on and as I have previously posted I have done this many times.

How do you demonstrate residency David? Do you claim that the debtor is actually living in the property when you are applying for the IVA?

Hi Melanie

You are not demonstrating residency, you are demonstrating the fact that he or she has a place of residence in England or Wales.