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Shopping for Divorces
08 June, 2009 11:11
An expatriate often has a choice of where to divorce. You need to make the right choice early, because often it is irreversible – and the jurisdiction that governs your divorce can have significant impacts on your fortunes.
Divorce is not as simple as just ending the marriage. There are generally two main areas of contention in divorces, one relating to sorting out financial arrangements between the couple, the other relating to arrangements for any children of the marriage. In fact many countries require that you also sort out arrangements for children before the divorce is granted.
Below are some examples which show the kind of considerations that you need to take into account when weighing up which jurisdiction is best for your circumstances, and which illustrate why shopping around for the most favourable jurisdiction is so important.
Approach to Divorce Proceedings: key differences across the jurisdictions
Norway – compulsory pre-mediation if children.
- Italy – slow.
- England – relatively fast, and no consent needed from the other party usually.
- Malta – no divorce possible (what most people do not realise is that the EU cannot force its members states to legislate on family law issues, which some commentators say makes a mockery of the Brussels II initiative aimed at harmonising the laws of member states).
- Croatia – children issues must be resolved before divorce can be granted.
- Nevada, USA – fast, but decree may not be recognised outside the USA.
Usually you can take divorce proceedings in a country if you are resident there. However, for example, if you live in a country such as one of the Gulf states, where Sharia law applies to family and matrimonial matters, unless you are a Muslim you will not have access to the Sharia courts.
You may be able to take divorce proceedings in another country if you are a national of that country, or you have some connection with it.
In terms of finances there can be very different outcomes.
For example :
- France – limited spouse maintenance.
- Australia and many US states - binding prenuptial agreements.
- Sharia law – each party retains their own property.
- England – discretion on a case by case basis.
- Scotland – inheritances protected.
- Denmark – maintenance generally limited to duration of marriage.
1. Mr and Mrs X married in Australia. The prenuptial agreement said that whatever property each of them had at the time of marriage, they would keep absolutely, and equally share in the accrued property. Mr X owned a valuable house which he still has. They subsequently moved to England where Mr X started a business. However it went very badly. Mrs X was successful in her own business but by the time of separation they had virtually no joint assets because her earnings had all gone to stave off her husband’s bankruptcy. Her husband had now recently started a new business which was proving highly successful, providing advice and services to business people struggling with recession. Mrs X however had become pregnant and had sold her business.
If the couple divorce in Australia, the prenuptial agreement will apply and Mr X will retain the only asset of the marriage, the house there.
If the couple divorce in England, the court will consider whether it is fair for Mr X to keep the entire property, and possibly ignore the prenuptial agreement.
2. Mr and Mrs Y built a second home in Croatia prior to Mr Y’s retirement. When he retired they sold the house in England and moved to Croatia. They live on Mr Y’s pension. Mrs Y commences divorce proceedings in Croatia. On that basis she will receive one-half of the property there, and minimal maintenance.
If she had commenced divorce proceedings in England she would have received half the property in Croatia and half of Mr Y’s ongoing pension.
Generally speaking, for EU domiciled couples, jurisdiction is decided according to who is first to file; for non-EU-domiciled couples the old fashioned rules of forum apply, which take all sorts of additional aspects into account, not just the ‘first in time’ rule.
It is critical to obtain expert advice before any taking any steps, particularly as the decision about the jurisdiction that is to govern your case is irreversible once made and yet has such big impacts on your fortunes on divorce.
By Henry Brookman, Partner and Founder of Brookman Solicitors
Brookman is a highly specialist boutique firm of international family lawyers. The firm conducts the full range of family law services, but has a particular reputation in the field of complex, cross-border issues involving divorce, ancillary relief and children-related matters. For further information visit the website www.brookman.co.uk or call +44 (0)20 7430 8470.